TWENTY FIVE YEARS OF CONSUMER DISPUTE REDRESSAL FORUMS-

Issues,Challenges and Opportunities

No one had ever thought or imagined that consumer forums constituted under the Consumer Protect Act shall work so effectively and will run like  parallel judicial system to the civil courts In no time Supreme court through its landmark judgements  brought number of big business houses  under the jurisdiction  of these forums for redressal of the  grievances of consumers  .The total scenario was further changed with elaborate amendments made in the act in 1991,1993 and 2002 in  order to incorporate the new provisions brought through SC judgements during the course. In the first and second amendment itself , medical services,fixed deposit made with industrial financial units ,construction companies Govt.and private insurance companies, telephone ,electricity were considered service providers for the purpose of the term defined as service in the act Railways,airlines,hotels and restaurants ,carrier companies, educational institutes -none was spared from the ambit of consumer forums for the dispute redressal.The credit goes to common cause association who filed writ petition before the Apex court to implement the act and constitute the forums

Strengths and scope of the act and forums

By now we find consumer forums equipped with salient features and its speciality are;

1.      Court fee just nominal and inexpensive procedure.

2.      Presence of advocates not compulsory, matter can be represented through consumer or his representative .

3.      Summery procedure as stipulated under section 13 of the act provided and Civil procedure code or criminal procedure not to be followed strictly. Principal of natural justice kept top of the priority giving ample discretionary powers to the forums .

4.      Consumer forum is considered an additional remedy available to him inspite having other legal law /agency in force for redressal of his grievance. In other words,consumer has a choice to accept any remedy among the available choices.

5.      Since this is a welfare act ,consumer is compensated for the actual loss along with compensation for the mental agony one undergoes in the process.Cost of litigation is also awarded .

6.      The orders so issued by these forums are judicial orders and non- compliance of the same are treated as an offence and these forums have first class magistrate’s power to get them implemented through Cr.pc provisions .Money can be recovered through recovery procedure in the manner  Govt revenue is recovered , accused’s property can be attached  ,can be sent to jail for maximum three years and can be fined upto Rs 10,000/- ,can be declared absconding also.

7.      In order to avoid misuse of the process of law, section 26 is incorporated to punish consumers also for filing frivolous complaints

Apart from the above , Supreme court explained  the law by further  widening the  scope of consumer foras in 2002 in J.J.Murchant case,Supreme Court made it ample clear that consumer foras can take evidence ,cross evidence through affidavits,can appoint local commissioner etc. In yet another  case of New India Assurance  Co.Ltd. V Srinivasan decided in 2002 by the Supreme court ,it was held that consumer foras need not go into technicalities of CPC or Indian evidence act and foras may go by the summery procedure laid down in the act itself in section 13.Had the legislature ever intended or meant to follow CPC,then there was no need to prescribe summery proceedure or section thirteen in the Act.In the matter of Smt Kalawati V Ms United Vaishya  Co -operative thrift and credit Societies Ltd  case in the year 2000 ,societies were brought under the  purview of consumer protection act. The pleas were taken by co-operative societies referring to the clauses in their act which bar the courts to interfere in their functioning and their grievance can be settled by the registrar of the society and by no court. Supreme court rejected their  arguement stating consumer forums are not courts ,hence not barred by their act.

Challenges and constraints faced by Forums

The obvious result was- a lot of hue and cry over the authority of the forums among big business houses was made.  Ever since the act has come into force  ,at one hand the Apex court went on giving broader description and wider scope to the act through its various pronouncements ,at the same time ,it also  faced numerous problems  and several attacks on the authority of these forums from big business houses. Even the act it self was challenged before the court of law and its legal validity was questioned when a big business man was ordered to be sent to jail for non compliance of its order . The  questions were raised as to whether Lok Sabha is empowered to pass such an act by which  consumer forums run like parallel courts to/against  the civil courts with much more discretionary powers.The matter was finally resolved by the Apex court in a case of Vishwabharti House Building Co-operative Societies Versus  Karnataka State and others decided in 2002 and the Supreme Court held  that the Consumer Protection Act is a valid law passed by the Lok Sabha as per the constitution ,it  was competent to pass such welfare Act.Further,the forums constituted under this act are competent to perform their work assigned to them in all respects .These forums can also invoke the provisions of section 27 of the act for execution of their order.

Consumer became a king after winning this case in his favour and of course consumer forums are working day in and day out for the consumers

 Interpretation of  Law By the Apex Court :Landmark judgements

There are situations where law is silent and facts of the case demand elaborated meaning to the particular clause .In such situation many factors are taken into account,circumstances of the case and purpose of the legislature are read together keeping in view the fundamental principal of natural justice. It is a well settled jurisprudence that such interpretations when made by the judiciary, at times new dimensions are given under the given circumstances and facts on record.Hence it will not be out of place to refer to certain such important judgements which made a history and  which have become precedence for future cases of similar nature under the similar circumstances

HOUSING

1.      M.G.GUPTA  V LUCKNOW DEVELOPMENT AUTHORITY Civil appeal No 6237/1990 alongwith other SLP’s decided on 5 Nov. 1993 (SC)

2.      GHAZIABAD DEVELOPMENT AUTHORITY V BALBIR SINGH &OTHERS SC,2004 ,[CTJ]PAGE 605

Issues discussed: Late possession,No possession,Defective dwelling ,Area less, Cost escalation Forfeiture of registration fee in case of cancellation of flat, Approach road dispute etc.

Law laid down:   !)Purchaser is a consumer against board/construction company for services hired !!)Erring officer can be penalized with the payment of compensation which is to be paid  to the consumer !!!)Order for interest on the amount deposited should be on the basis of facts of the case and not always @18% as ordered by National Commission.!V)If order for interest is given ,there should not be any further  order for compensation  as both the things cannot go together V)In case where compensation for mental agony is given,there should not be any tax deduction at source as such compensation is not an income

MEDICAL PROFESSION

V.Shantha V Indian Medical  Association Civil Appeal No 688/1993 With SLP (C)No 6885/95 Sc 1995

Issue discussed:

1.      How patient is a consumer for medical services against Doctors

!)Though Indian Medical Council Act has the provisions to control the medical practitioners and take disciplinary action against erring doctors,consumer courts are additional remedy to the consumer under consumer protection act to get compensated.

!!)Though medical PROFESSION is different from other OCCUPATIONS ,but commercialization has already taken place when services are given by payment though it is still a noble profession based on faith and trust.

!!!)Though medical profession is technical in nature but it cannot be said that the members of the forum are not capable to deal with such matters .They are equipped with expert opinions on the subject,medical literature and other reports  ,they are eminent people from the society ,judges or retired judges . Three members can be expert of three subjects only and if it is expected them to know every subject,it will be an immposible situation in all the courts.

2.      When doctors are said to be negligent:

When there is a damage to organ due to negligence ,Wrong treatment due to wrong diagnosis .Money receipt or prescription or  discharge summery or test reports when not  provided, When treatment not chosen  as per accepted and established  medical norms /as per medical research/available medical literature

Law laid down:

!)Theory of res ipsa loquitur [ a thing speaks of itself]- in case any instrument left in the body ,a wrong part removed ,  allopathic treatment given by a homeopathic doctor etc.amounts to medical negligence

!!)Three steps necessary to be observed by the medical practitioners

1        To decide whether he has to take up the case or not.

2        If taken up the case, he is to decide what treatment is to be given.

3        Whether the treatment given as per the diagnosis made.

!!!) Govt Hospital liable if

!V) Payment by insurance company amounts to payment made by the consumer

V) If five methods available for treatment,one chosen,doctor not negligent

V!) Doctor not guarantor

V!!)Error of judgement different from wrong diagnosis

V!!!)Fee/consideration ,three categories :

Govt  hospitals – where contribution from the employees salary deducted

Private nursing homes

Charitable hospitals charging from some

Law laid down in criminal negligence (Jacob Methew v State of Punjab  SC 2005)

 Act of negligence to be viewed as criminal negligence inviting criminal prosecution would have to be of a gross negligence and must fulfil two tests :

!)Doctor did not possess the necessary skill required or if possessed the required skill,did not exercise with reasonable competence

!!)The act committed ought to be such that no medical professional in ordinary sense would have committed .

!!!)Test of Medical negligence in criminal case and under consumer protection act are to be judged on different parameter

 

Shift in the attitude of Supreme court in recent cases

In the recent past ,Supreme court has reversed its gears There is a clear shift in the attitude of Supreme court which is very visible in the  recent landmark judgements pronounced by this Honourable court in the case of Martin D’Souza in medical negligence matters, making expert opinion compulsory before issuing notice to the doctors,in case of Bihar School Examination Board Versus Suresh Prasad Sinha keeping examination Boards out of the purview of Consumer Courts in education matters,in caseof General Manager Telecom Versus M Krishnan and others  telecom matters have been withdrawn from the jurisdiction of consumer foras .

Reasons for delay in disposal of cases:

Fact of the day is that consumer forums are over burdened with cases not only due to consumer awareness but also due to some practices by the litigating parties during the proceedings which drag the cases and disposal is delayed just because of small carelessness by both the parties Clerks of the advocates are managing the whole affair and at times not aware of the case ,hence ask for date,reasons given advocate attending at High court or another District court. Appearance by proxy counsel without having any knowledge of the case is another problem.It is observed ,some  advocates who are at learning stage and are  often present in the forum  ,state while appearing as proxy that they have got a phone call from such and such advocate  requesting  to appear on their behalf  and interestingly such  proxy is not aware of the correct stage of the case and even not aware for whom they have to appear .The result is obvious ,proxy is not having file with him and  asks for adjournment The case is delayed by another two to three months.Though cost is imposed but matter is delayed .Adjournments in execution matters are requested with a plea appeal is being filed but  neither they file appeal nor they produce  stay order and in between the situation ,they try to bargain with the consumers to drop some of the claimed  amount. There are yet another situations when expert opinion is required for making prima facie case before notice to medical practitioner but most of the times, complete papers are not filed by the consumers, either they could not obtain from the treating hospital/doctor or they have misplaced,it is simply an attitude of the parties which causes delay.

Quick disposal of cases by forums:

It is going  totally unnoticed and no where coming on record   foras are disposing of number of cases on the first date itself when opposite party agrees to redress the grievance .On the basis of  mutual consent , the case gets ‘disposed of as settled within the parties’  or ‘withdrawn as settled’ This often happens when both the parties are keen to get the grievance redressed .There is a positive move by the manufacturers , their counsels are given instructions to settle the matter as they receive the notice.Often items are replaced without going into merits .Case against corporate bodies are generally dragged for longer period as no one in the organization takes lead to settle the matter even if it falls in their interest as they have battery of advocates on their panel to fight out the cases.In some cases consumers are also misguided that they can be compensated with huge amount  and they even refuse to get their goods replaced in the initial stage .

Further ,NGO’s are yet to contribute and extend their direct help to the consumers by fighting their cases before the forums on their behalf as AR which is rarely being done.

 

 

Dr Prem Lata

MEMBER ,CDRF,North West Delhi

 

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