CIVIL  PROCEDURE  CODE  APPLICABLE  TO  A  LIMITED  EXTEND

UNDER SUMMERY TRIAL  BEFORE THE CONSUMER FORUM

‘Let the tribunal not become civil court’

 Said Justice T.S..Thakur ,Supreme Court   on the occasion of world consumer day on 14^th march,2013 at Vigyan Bhawan. While sadly expressing disappointment on the condition of consumer courts  ,Justice thakur started with the words that whatever had been said in the earlier years  is getting repeated today and may be,the same  story shall be repeated every year with no fruitful results .The points raised among every year’s agenda are honorarium paid to the members of consumer forums,infrastructural problems and unfilled vacancies of members and presidents.  Apart from the above repeats,Justice Thakur also raised an issue of qualification of members in the forum and desired that they must be trained qualified to adjudicate basic principals of law. People from public without law qualification have been crowned up for judicial pronouncements.Consumer courts are traditional domain of the court,extended area of judiciary and  neglecting this judicial process means depriving  the public to right to access to justice.He further stated that Tribunal is not a department of Govt.,its an autonomous body entitled to be given recognition .But the biggest fraud played on consumer forums is that  even after 26 years of its enactment,no clerical cadre has been so far created for these forums and staff comes on transfer from all the departments .By the time they are trained to the functioning of  consumer court,they are again shifted elsewhere .He warned  that the forums are  becoming  civil courts and  it is time to renew the situation.

As a result of the   concern shown by the Hon’ble Judge of the apex court Justice Thakur,we need to look into the real situation in the forums.

Procedure to be followed before the forum has been explained  under section thirteen of the act,A few provisions from the civil procedure code &Indian penel code have been picked up and added in this section it self in order to ascertain that no other provisions from civil procedure code can be made applicable and hence section thirteen is a complete procedure provided for consumer forums.

Sub- Section 4,5,6 and 7 of section thirteen of the act deal with the provisions taken from CPC which can be made applicable to the consumer forums as hereunder;

Sub-section (4) of section 13-

 (4) For the purposes of this section, the District Forum shall have the same powers as are vested

in a civil court under Code of Civil Procedure, 1908 while trying a suit in respect of the

following matters, namely:-

(i) the summoning and enforcing the attendance of any defendant or witness and

examining the witness on oath,

(ii) the discovery and production of any document or other material object producible

as evidence,

(iii) the reception of evidence on affidavits,

(iv) the requisitioning of the report of the concerned analysis or test from the

appropriate laboratory or from any other relevant source.

(v) issuing of any commission for the examination of any witness, and

(vi) any other matter which may be prescribed.

 

(5) Every proceeding before the District Forum shall be deemed to be a judicial

proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860),

and the district Forum shall be deemed to be a civil court for the purposes of section'" 195, and

Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

           

As per the above referred Indian Penel Code  provisions it means- though these forums are quasi- judicial system,but for the purpose of its proceedings,they are judicial in nature.

 

(6) Where the complainant is a consumer referred to in sub-clause (iv) of clause (b) of

sub-section (1) of section 2, the provisions of rule 8 of order I of the First Schedule to the Code

of Civil Procedure, 1908 (5 of1908) shall apply subject to the modification that every reference

therein to a suit or decree shall be construed as a reference to a complaint or the order of the

District Forum thereon.]

 

Which means as per the CPC provision refered above ,one or more consumers can file complaint together against the same respondent for the same cause and one among them can be authorized to appear and plead on behalf of them.

 

(7) In the event of death of a complainant who is a consumer or of the opposite party against

whom the complaint has been filed, the provisions of Order XXII of the First Scheduled to the

Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every

reference therein to the plaintiff and the defendant shall be construed as reference to a

complainant or the opposite party, as case may be.)

 

Which means legal heirs of complainant or respondents may be allowed to be replaced in case of death of consumer or defendant as the case may be.

Above are the only provisions specifically mentioned in the section thirteen of the act which exclusively deals with the procedure to be followed in the consumer forums.But unfortunately inspite of explainations given by the apex courts through various judgements, consumer courts headed by the presidents who are mostly  retired judges from the civil courts are tuned to the civil procedure code and advocates appearing before them make the simple procedure  a complicated one, heavily loaded with order so and so and rule so and so. Time and again advocates before the consumer forums try to enforce their knowledge of CPC and other legal methods in order to delay the matter defeating the purpose of summery procedure laid down under section thirteen of the Consumer Protection Act.At the time of inception of this welfare act, legislature/parliament  intended to provide a procedure to the consumer which is easy,costless and free from any complications. Since advocates are not necessary to be appointed, layman’s language is accepted in the complaint filed under section tweleve of the act.It becomes the duty of the court to discourage the advocates to use CPC Rules when they are actually not provided to be used.But it is not done so.Consumer when does not understand CPC provisions,is forced to appoint advocates.Its high time now for the presidents of the consumer forms to accept the fact that  they are to deal with unequipped consumers.They have also to retire  mentally  from the seat of district judge and civil court. Their appointment as president in the forum is not an extension to their service but starts a fresh, a different type of work where they have to take along with them two other members also in decision making  process.A great deal has been done by the consumer ministry by arranging training /orientation training to the presidents and members of the forums which  worked  very well and proved   fruitful in the first two decades but during the past five six years, senior judicial officers are attracted to the consumer courts after retirement but they found induction trainings not necessary for them after having vast knowlege attained at such senior posts/levels.This is the tragedy of our system that age and experience and sometimes ego comes in the way to learn the system appropriate  for the new job in hands. This barrier and mindset   has brought our consumer forums to this state. We need to come out of it and allow consumer courts to function the way legislature intended them  to work

                        For some issues where consumer protection is silent,apex court has made explainanations which ought to be followed as precedent by the consumer courts such as

(i) When the case is not a simple case of deficiency in service and involves determination of complex questions of facts and law, which cannot be satisfactorily determined by the redressal agency .in the time frame provided under the Rules, it would be better for the complainant to seek redressal of his grievances in a Civil Court, if so advised; Harbans & Co. v. State Bank of India; II (1994) CPJ 476: 1994 (1) CPR 381.

 

(ii) If "fraud" is alleged, it is desirable that the complainant should be directed to Civil Court as investigation about such fraud is required to be done;

Jayantilal Keshavlal Chauhan v. The National Insurance Co. Ltd., 1994 (I) CPR 396.

 

(iii) A consumer knocking at the door of the redressal agencies under the Act for relief in a consumer dispute must do so with clean hands Sagli Ram v. General Manager, United India Insurance Co. Ltd., II (1994) CPJ 444: 1994 (I) CPR 434.

 

            !V)The consumer dispute redressal agencies ,which are not vested with the power of a civil court ,are not entitled to review jurisdiction as envisaged under section 114 of the code of civil procedure-Eureka Estates Pvt. Ltd. V A. P. State consumer dispute redressal commission AIR 2005 ap 118

V)Application for amendment of complaint can be entertained by district forum though there is no specific provision for amendment ,there is also no bar in allowing amendment ;Manimalan v k. subrayan,AIR 2004 Mad 446

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