The Power of the Com­mis­sion

Consumer Voice - - Transferring Cases - Land­mark case

Many a times it is said that the con­sumer courts do not have teeth, that they pass judge­ments but are not able to en­force them ef­fec­tively. How­ever, it is to be noted that the most pow­er­ful pro­vi­sions in the Con­sumer Pro­tec­tion Act is about the en­force­ment of the or­ders passed un­der Sec­tion 27. Con­sumer courts have the pow­ers of a first-class mag­is­trate to im­pose penalty up to Rs 3,000, cou­pled with up to three years’ im­pris­on­ment in case of non-com­pli­ance with the con­sumer court or­der.

In 1996, not just the ex­is­tence of con­sumer fo­rums but the Con­sumer Pro­tec­tion Act it­self was chal­lenged be­fore the court of law and its legal va­lid­ity was ques­tioned when a big busi­ness­man was or­dered to be sent to jail for non-com­pli­ance with the fo­rum’s or­der. Ques­tions were raised as to whether Lok Sabha was em­pow­ered to pass such an Act by which con­sumer fo­rums could run as a par­al­lel ju­di­cial sys­tem against the civil courts, and with much more dis­cre­tionary pow­ers too.

The mat­ter was re­solved by the Supreme Court in the case of Vish­wab­harti House Build­ing Co­Op­er­a­tive So­ci­ety ver­sus Kar­nataka State & oth­ers in 2002. The Supreme Court held that the Con­sumer Pro­tec­tion Act was a con­sti­tu­tion­ally valid law passed by the Lok Sabha, and that par­lia­ment was com­pe­tent to en­act such wel­fare leg­is­la­tion. Fur­ther, the fo­rums con­sti­tuted un­der this Act were com­pe­tent to per­form the work as­signed to them in all re­spects .Th­ese fo­rums could also in­voke the pro­vi­sions of Sec­tion 27 of the Act for ex­e­cu­tion of their or­der. Legal is­sues raised by the com­plainant were around th­ese two as­pects: Act was un­con­sti­tu­tional and run­ning as par­al­lel ju­di­ciary to civil courts, which was against the pro­vi­sions of the Con­sti­tu­tion. Or­der of the con­sumer fo­rum should be sent for ex­e­cu­tion un­der Sec­tion 25 to civil court, and Sec­tion 27 of the Act is il­le­gal.

High court in its judge­ment held that: The Act was not un­con­sti­tu­tional. The or­der for com­pli­ance should be sent to civil

court for ex­e­cu­tion. The Act was made un­der the pro­vi­sions of the Con­sti­tu­tion’s Sched­ule VII, Ar­ti­cle 246, wherein it was said that par­lia­ment could con­sti­tute any ju­di­cial sys­tem other than Supreme Court and high courts. Since the pro­ce­dure was laid down in the Act it­self un­der Sec­tion 13 as a sum­mary pro­ce­dure, ex­e­cu­tion was also to be done un­der sum­mary pro­ce­dure. Hence, Sec­tion 27 was very much valid, while Sec­tion 25 gave an op­tion to the con­sumer to go to the civil court for ex­e­cu­tion of the or­der passed by the con­sumer fo­rum.

This judge­ment by the Supreme Court of In­dia cleared a big ob­sta­cle that was hold­ing back ac­tion against med­i­cal pro­fes­sion­als in neg­li­gence cases. In the case of Dr JJ Mer­chant and oth­ers ver­sus Shri­nath Chaturvedi, doc­tors had ques­tioned the com­pe­tency of con­sumer fo­rums to deal with pro­fes­sional mat­ters, stat­ing that mem­bers of the fo­rums were not ex­perts in the med­i­cal area.

While de­cid­ing this case in 2002, the apex court clar­i­fied a sig­nif­i­cant point: “Con­sumer fo­rums can take ev­i­dence, cross ev­i­dence through af­fi­davits, can ap­point lo­cal com­mis­sioner and can ob­tain ex­pert opin­ions on the sub­ject…” It fur­ther said that three mem­bers in the fo­rum could at the most be ex­perts in three ar­eas only and it would be im­pos­si­ble for any court to de­cide cases if ex­perts in ev­ery field had to be there among judges.

The num­ber of other cases fol­low­ing this judge­ment fur­ther con­firmed that the med­i­cal pro­fes­sion was also an­swer­able in con­sumer courts.

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