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1994 DIGILAW 631 (BOM)

Akhil Maharashtra Grahak Margdarshan and Sanshodhan Manch and another v. Shivajirao Dhanajirao Desai and another

1994-10-20

ELLEN DHARKAR, G.G.LONEY

body1994
ORDER :---In both these revisions a common question of facts and law are involved and hence they are being disposed of by this common order. In order to appreciate the consumer dispute it is necessary to set few facts concerning these two revisions. 2. The consumer disputes redressal forum, Kolhapur known "District Forum, Kolhapur" was established under section 10 of the Consumer Protection Act, 1986. Shri Shivajirao Dhanajirao Desai and Smt. Shobhadevi Deepak Shinde were appointed as members besides the president, by the Government of Maharashtra under the aforesaid provisions of the Consumer Protection Act. It appears that since 5-5-1994 the aforesaid two members were not attending the sittings of the District Forum, Kolhapur convened by Shri Y.R. Bhosale president. As a result of non-attendance of the two members of the District Forum, the hearings of the consumer complaints could not be taken up and disposed of legally by the president alone. The various social organisations and consumer activists made several complaints to the State Government and also to this commission about the absence of aforesaid two non-official members. There is one Akhil Maharashtra Grahak Margdarshan Aani Sanshodhan Manch (hereinafter referred as "Manch") president by Sau Preeti Prakash Tendulkar and its vice president by Shri Bhausaheb Bapusaheb Dhere. Both the president and vice president of the aforesaid manch had filed two separate complaints against the two non-official members of the District Forum, Kolhapur in which it has been alleged that due to negligence on the part of non-official members in attending the sittings of the District Forum, the people are put to great inconvenience and also caused the loss to public funds. In each of the complaint, the aforesaid manch claimed Rs. 4,00,000/- towards compensation and costs. The District Forum, Kolhapur has registered those two complaints vide Compl. No. 218 of 1994 and 219 0f 1994. When this fact was brought to the notice of this commission, we called the records of aforesaid two complaints and registered these two revisions under section 17(b) of the Consumer Protection Act, 1986. 3. Both the parties were noticed to appear on 7-10-1994. On 7-10-1994 complainants by Shri Ganesh Waskar, the learned Advocate filed his written notes of argument whereas the opposite parties i.e., non-official members were present through their advocate. 4. 3. Both the parties were noticed to appear on 7-10-1994. On 7-10-1994 complainants by Shri Ganesh Waskar, the learned Advocate filed his written notes of argument whereas the opposite parties i.e., non-official members were present through their advocate. 4. We have carefully scrutinised the allegations made in the complaints and also perused the written notes of argument filed by the learned Advocate for complainants. The question that arises for our consideration in these two revison is as to whether the District Forum, Kolhapur through its president can exercise the jurisdiction vested in it by law? The two non-official members are interested persons in the consumer disputes, since, they are made the opposite parties from whom the compensation has been claimed. Thus, the two non-official members are disqualified to be a party for the decision of the consumer disputes. The president alone is also not legally competent to decide the consumer disputes without their being at least one member sitting with the president under the provisions of section 14(ii) of the Consumer Protection Act, 1986. Thus, there is deadlock for the decision of the aforesaid two consumer disputes before the District Forum, Kolhapur. Consequently, in our view, the District Forum cannot exercise its jurisdiction legally. It is therefore obvious that while deciding two consumer disputes, the District Forum will be exercising its jurisdiction illegally or with materials irregularity. 5. There is another aspect which has to be taken into consideration under section 28 of the Consumer Protection Act, 1986 which provided the protection of action taken in goods faith. Section 28 is reproducted below : "No suit, prosecution or other legal proceedings shall lie against the members of the District Forum, the State Commission on the National Commission or any officer or person acting under the direction of the District Forum, the State Commission or the National Commission for executing any order made by it or in respect of anything which is in good faith done or intended to be done by such member, officer or person under this Act or under any rule or order made thereunder." 6. It is contended on behalf of non-official members that they are legally protected under the aforesaid provision and no legal proceeding shall lie against them as members of the District Forum, since they act in good faith while remaining absent from the proceedings of the District Forum. It is contended on behalf of non-official members that they are legally protected under the aforesaid provision and no legal proceeding shall lie against them as members of the District Forum, since they act in good faith while remaining absent from the proceedings of the District Forum. According to Shri Vaskar, the learned Advocate appearing for the complainants has stated that the opposite parties are not entitled to take the benefits under section 28 of the Consumer Protection Act, 1986. The reliance is placed on an reported decision of the Supreme Court of India (A.I.R. 1981 S.C. page 636 and A.I.R. 1970 S.C. page 1372 and A.I.R. 1992 Calcutta page 95). According to Shri Waskar, on the basis of principles laid down in the aforesaid cases it cannot be said that the opposite parties were acting in good faith. It is argued by Shri Vaskar that there is no good faith on the part of the opposite parties and they intentionally remained absent from the sittings of the District Forum with a view to cause loss to the public funds and the consumers whose disputes were pending before the District Forum. We are unable to accept this submission of Shri Vaskar for the simple reason that the complainants have not proved that they had hired the services of the opposite parties for consideration and that there has been any deficiencies in their services as a result of which the complainants are put to any loss. The necessary requirement consumer dispute "deficiency in the service" within the meaning of the Consumer Protection Act are absent and therefore also the complaints filed by the complainants were misconceived and not maintainable. While parting with those revisions we would like to observe that complainants has taken up a public cause with a view to highlight that members of District Forum consitituted under the Consumer Protection Act are accountable to the parties who approach the consumer fora for adjudication of their complaints. When the non-official members behave in a negligent manner in not attending to the sitting of the fora without any sufficient and reasonable cause, they fail in their duties statutorily assigned to them by virtue of his appointment as the non-official members. They not only ridicule themselves but causes the failure of the system which is meant to provide inexpensive, simple and speedy justice to the aggrieved consumers. They not only ridicule themselves but causes the failure of the system which is meant to provide inexpensive, simple and speedy justice to the aggrieved consumers. Lot of criticism is being voiced in print media about the selection of non-official members of consumer fora about their political back-drop. The two non-official members in these two complaints are alleged to have political trappings. We therefore hope and expect that they shall not repeat their absence from the sittings of District Forum, Kolhapur in future. 7. As indicated earlier while appreciating the bold stand taken by the complainants to focus the attention of the people about the inaction of non-official members the complaints are being required to be dismissed on non-fulfillment of legal requirements for a consumer dispute within the meaning of Consumer Protection Act. In order to constitute a consumer dispute the complainant is legally obliged to establish that he has hired the services of the opposite parties for consideration. Complainants being unable to overcome this statutory hurdle, these two complaints must fail. Moreover, the hiring of service must be for a consideration. No consideration even in the form of Court fee is required to be paid to approach a consumer fora for adjudication of a complaint. Therefore, also the complaints are not maintainable. Thus, we are constrained to dismiss the complaints on the grounds of maintainability. Complaint dismissed. *****