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2004 DIGILAW 160 (JK)

Mohd. Yaqoob Shah v. Gh. Rasool Wani

2004-05-24

R.C.GANDHI, S.N.JHA

body2004
Per R.C. Gandhi (J). This Civil Misc.First Appeal has arisen out of an order dated: October 7, 1998 passed by the J&K State Consumer Protection Commission, Srinagar (hereinafter to be referred to as "the Commission") in complaint No.288/1994 whereby the Commission has awarded a sum of Rupees one Lakh as compensation against the claim amount of Rs. 95,000/-. 2. A few relevant facts in the back drop of the case are that the appellant is a stockiest and Distributor of respondent No.2 J&K Cements Ltd. a Corporation, manufacturer of Jhelum Brand Cement. The appellant has also his retail outlet at Baghat-i-Batzalla, Srinagar. The respondent No.1 (hereinafter called "the Respondent") has stated in the complaint that he intended to construct an extension of his house located No.106 located at Baghat Chowk, Barzulla, Srinagar. He purchased 50 bags of jehlum Brand cement against cash memo No.628 dated 31.8.1993, (figure 8 i.e.month depicted in the cash memo dated: 31.8.1993 is interpolated), from the appellant for a sum of Rs.6600/-. He used the said cement in lying RCC slab with other requisite slab material. He spent Rs.45,000/- for laying the slab which was ready on 4.10.1993. On 31.10.1993 the shattering of the slab was removed and immediately thereafter the slab fell down. It is further stated that the respondent No.1 has taken all the requisite precautions at the time of laying the slab, such as, engagement of expert and skilled labour and assistance of a Civil Engineer. According to the respondent, the slab fell down as a result of use of the sub-standard quality of cement sold to the respondent by the appellant. 3. The respondent No.1 lodged a written complaint on November 1, 1993 with the respondent No.2. He deputed his Manager Quality Control who collected the samples and some fragments of RCC slab. The respondents also lodged an FIR with Police Station, Saddar on 4.11.1993. The appellant also collected himself samples of the fallen slab and sent to the Regional Engineering College Laboratory, Srinagar for testing of the used cement. Report of the laboratory was received on 20.12.1993. the fact of falling down of the slab was also published in news columns of Kashmir Times and Greater Kashmir on 14.01.1994. It is further stated that the respondent is a retired Government Officer and his earning has gone waste because of the unfair practice of the respondent. Report of the laboratory was received on 20.12.1993. the fact of falling down of the slab was also published in news columns of Kashmir Times and Greater Kashmir on 14.01.1994. It is further stated that the respondent is a retired Government Officer and his earning has gone waste because of the unfair practice of the respondent. He suffered a loss of Rs.45,000/-due to falling down of the slab measuring 6 * 20 sq.ft and Rs.25,000/-on account of dismantling the rest of the extended construction, damage to bricks, steel and wooden material, such as, doors, windows etc.,which were fixed under the roof. He also claimed a sum of Rs.25,000/-on account of loss of labour charges and other connected expenses with further claim of Rs. 25,000/- for mental torture, inconvenience, loss of time and the fees paid to the Lawyer. However, he ultimately prays only for compensation of Rs.70,000/- as loss towards the felling down of the slab and other material and Rs.25,000/- on account of mental torture and inconvenience etc. 4. Respondent examined two witnesses namely Javid Iqbal, Civil Engineer, and Mohammad Shafi Bhat, shattering Contractor besides his own statement. The appellant and respondent No.2 after filing the reply neither attended the proceedings nor led any evidence. On appreciation of the documentary evidence and the statements of the witnesses, the commission held the appellant liable to pay compensation of rupees one Lakh to the Respondent within a period of six weeks, absolving the respondent No.2 from the liability of payment of compensation as in view of the Commission he was not found at fault. 5. Aggrieved of the order of the Commission dated: October 7, 1993 the appellant has preferred this Appeal questioning the legality and correctness of the impugned order on the ground that the Commission has not rightly and legally appreciated the evidence on record. Not only that, the Commission all together ignored the mandatory provision of law contained in section 16 read with section 11 of the J&K Consumer Protection Act, 1987 (hereinafter to be referred to "the Act") though specific plea in this regard was canvassed before the Commission. Not only that, the Commission all together ignored the mandatory provision of law contained in section 16 read with section 11 of the J&K Consumer Protection Act, 1987 (hereinafter to be referred to "the Act") though specific plea in this regard was canvassed before the Commission. It is also urged at the bar that the respondent could not conclusively prove the brand of the cement used for the construction of the slab as the respondent No.2 has denied either the use of Jehlum brand cement by the respondent or the selling of the cement by the appellant to the respondent. 6. The dispute for determination raised before us is, whether the claim of the respondent could be allowed while there is no conclusive proof that the jehlum brand cement was used in the slab, in presence of the evidence that the respondent No.2 has denied the sale of the cement by the appellant and whether the Commission was right in ignoring the above referred mandate of law. 7. We have heard the learned counsel for the parties and perused the record. 8. So far as the dispute with regard to the use of the cement is concerned, the statement of the respondent No.2 is that 800 bags of cement was sold on July 31, 1993 and not August 31, 1993 by him to the appellant. Stockiest and Distributor of the respondent No.2 who is also having his retailer outlet. The appellant has tempered the figure 7 which is recorded as month i.e. July in the cash memo by super imposing word 8 on it, so as to read it as 31.8.1993 whereas the original date of sale of cement is 31.7.1993. The Commission has returned a finding on this factual dispute of interpolation that the date of sale is 31.7.1993 which has been tempered by the respondent. Be that as it may, the appellant has pleaded and specifically admitted before the Commission that the cement has been sold to the respondent by him and was of Jehlum Brand, supplied to him, by the respondent No.2. The respondent No.2 has not cogently proved before the Commission by leading any evidence that the cement used by the respondent was not of Jehlum brand of which respondent No.2 is the manufacturer. 9. Respondent No.2 has also pleaded and urged that the cash memo was tampered by the Respondent. The respondent No.2 has not cogently proved before the Commission by leading any evidence that the cement used by the respondent was not of Jehlum brand of which respondent No.2 is the manufacturer. 9. Respondent No.2 has also pleaded and urged that the cash memo was tampered by the Respondent. Assuming there is an interpolation in the cash memo with regard to the date of supply of the cement, it cannot be said that the cement has not been supplied to the appellant or sold by the appellant, to the consumer. In presence of the admission of the appellant of a fact that he sold jehlum Brand cement to the consumer. The finding of the Commission based on the interpolation of the cash memo absolving the Respondent No.2 of his the liability to pay compensation is erroneous being not proved and also for the added legal reason that the appellant cannot withdraw his admission made in his reply before the Commission of having sold Jehlum Brand cement to the respondent. 10. So far as the report of Regional Engineering College Laboratory is concerned, we have to examine its legal value for purposes of its use as a piece of evidence. The Laboratory test of the cement used in the slab is that the cement is sub-standard. The Commission relying this report has held that the cement supplied was of tensile strength and sub-standard. There shall be no use to consider the aspect and comment on the report as the report in the eyes of law cannot be entertained for the reasons which shall be narrated in the following Paragraphs of this judgment. 11. Now we shall examine the sustainability of the findings recorded by the Commission ignoring the application of section 16 and 11 of the Act to the present case for payment of compensation. It is seen that the appellant has specifically raised the plea before the Commission that the report of the Regional Engineering College Laboratory has no evidentiary value having not obtained observing the mandatory procedure of law contained in section 11 of the Act and thus could not have been taken into consideration as a valid piece of evidence. It is seen that the appellant has specifically raised the plea before the Commission that the report of the Regional Engineering College Laboratory has no evidentiary value having not obtained observing the mandatory procedure of law contained in section 11 of the Act and thus could not have been taken into consideration as a valid piece of evidence. The Commission ignoring the submission recorded the finding in favour of the claimant, relevant portion of which is extracted below and reads thus: "We are however told by the counsel for the OP No. 1 that since the procedure mentioned in section 11 clause c has not been followed in as much as the sample has not been submitted to the Commission for getting it tested the complaint is incompetent for want of compliance with the mandatory provisions of law. We are unable to make much stress on this argument for the reason that the matter was immediately reported to police and the JK Cements also who took the sample for testing. The report was not made available to the complainant -though it is said now that there results clearly indicated that it was not the brand of the cement manufactured by JK Cements. The Consumer Legislation on finding of this complaint was in its infancy and people were not aware of the procedures. In our view the manner in which the case has been dealt with has caused no prejudice to the opposite side." To appreciate the plea of the appellant and to test the afore-extracted findings on the touch stone of law it will be apt to reproduce for convenience Section 16 and 11 of the Act. "16. Procedure applicable to State Commission. The procedure specified in actions 10, 11 and 12 and under the rules made thereunder for the disposal of complaints by the Divisional Forum shall, with such modifications as may be necessary, be applicable to the disposal of disputes by the State Commission." 11. Procedure on receipt of complaint-(1) The Divisional Forum shall on receipt of a complaint, if it relates to any goods. Procedure on receipt of complaint-(1) The Divisional Forum shall on receipt of a complaint, if it relates to any goods. (a) Refer a copy of the complaint to the opposite party mentioned in the complaint directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the Divisional Forum; (b) Where the opposite party on receipt of the complaint referred to him under clause (a) denies the disputes the allegations contained in the complaint or commits or fails to take any action to present his case within time given by the Divisional Forum. The Divisional Forum shall proceed to settle the consumer dispute in the manner specified in clauses, (c) to (g); (c) Where the complaint alleges a defect in the goods, which cannot be determined without proper analysis or test of the goods, the Divisional Forum shall obtain a sample of the goods from the complaint, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate Laboratory alongwith the direction that such Laboratory make an analysis or test, whichever may be necessary with a view to finding out whether such goods from any defect alleged in the complaint or suffer from any other defect and to report its findings thereon to the Divisional Forum within a period of forty five days of the receipt of the reference or within such extended period as may be granted by the Divisional Forum; (d) Before any sample of the goods is referred to any appropriate laboratory under clause c, the Divisional Forum may require the complainant to deposit the credit of the Forum such fees as may be specified, for payment to the appropriate laboratory, for carrying out the necessary analysis or test in relation to the goods in question. (e) The Divisional Forum shall remit the amount deposited to its credit under clause (d) to the appropriate Laboratory, to enable it to carry out the analysis or test mentioned in clause (c) and on receipt of the report from the appropriate Laboratory, the Divisional Forum shall forward a copy of the report alongwith such remarks as the Divisional Forum may feel appropriate to the opposite party; (f) If any of the parties disputes the correctness of the finding of the appropriate Laboratory, or disputes the correctness of the methods of analysis or test adopted by the appropriate laboratory, the Divisinal Forum shall require the opposite party or the complainant to submit in writing his objections in regard to the report made by the appropriate laboratory; (g) The Divisional Forum shall thereafter give a reasonable opportunity to the complainant as well as to the opposite party of being heard as to the correctness of otherwise of the report made by the appropriate laboratory and also as to the objection made in relation thereto under clause (1) and issue an appropriate order under section 12. 12. The aforesaid provision of law envisages that where the compensation is claimed because of the defect in the goods, it cannot be determined without proper analysis or test of the goods. Clause c of sub-section (1) of Section 11 of the Act enjoins upon the Commission to obtain a sample of the goods from the complainant and send it to the appropriate laboratory, after observing the manner prescribed to seal and authentic the sample, to find whether such goods suffer from any defect alleged in the complaint or any other defect and after receipt of the report in terms of clause (f) of Section 11, it is further mandatory for the Commission to provide an opportunity to the parties, to file objections, if they dispute the correctness of the findings of the laboratory or the method of the analysis or the test adopted by the appropriate laboratory. This mandatory procedure also postulates that the commission after providing an opportunity under sub-clause (f) to the parties, further provide an opportunity of being heard to the correctness or otherwise of the report in support of their objections and only thereafter should record finding for the disposal of the dispute under section 12 of the Act. This mandatory procedure also postulates that the commission after providing an opportunity under sub-clause (f) to the parties, further provide an opportunity of being heard to the correctness or otherwise of the report in support of their objections and only thereafter should record finding for the disposal of the dispute under section 12 of the Act. Section 12 of the Act also specifies that in such a case after compliance of provisions of section 11, the Commission has to record its satisfaction that the goods suffer from the alleged defect specified in the complaint or the allegations contained in the complaint. 13. The aforesaid finding of the Commission itself speak that the Commission has ignored to take into consideration the mandate of law contained in Section 11 which was mandatory to be followed. The reasons for ignoring the mandatory procedure are that the Consumer Legislation is in its infancy and the people are not aware of the procedures. The Commission by recording such observations has out rightly breached the law meant to be followed, assuming an impression that the people are not aware of the procedural law. Be that as it may, could the mandatory provision of law be ignored to achieve the object of dispensation of justice. Dispensation of justice by the Courts has to be in accordance with the law and the procedure evolved or mandate by law. The Commission can evolve its procedure for hearing and disposal of the disputes under section 16 of the Act, but the mandatory procedure stipulated in the Section, cannot be made subservient to the procedure evolved or adopted by the Commission. The assumption of the impression by the Commission that the people are not aware of the procedure and to achieve the ends of justice, such compensation can be paid is wholly unjust. It is well settled that the ignorance of law is no excuse. The Courts are subordinate to law and it is the duty of the Courts to obey, observance and follow the law to secure the ends of justice. 14. Learned counsel for the appellant has submitted that the Commission has failed in its duty to decide the dispute in accordance with law. The law enjoins that the things should be done in the manner as provided and required by law. 14. Learned counsel for the appellant has submitted that the Commission has failed in its duty to decide the dispute in accordance with law. The law enjoins that the things should be done in the manner as provided and required by law. In support of his plea learned counsel has relied upon the judgment of the Apex Court pronounced in the case "Babu Verghese and others v. Bar Council of Kerala and others" reported in AIR 1999 SC 281 wherein the Court was dealing with the plea raised by the Appellant therein with regard to the election of the Bar Council of Kerala within the extended term of six months by the Bar Council of India, invoking its power under rule 6 of the Bar Council of India Rules. While exercising jurisdiction under Rule 6, it was not exercised as contemplated by rule. The scope of Rule 6 has been explained by the Apex Court in Para 28 of the judgment which reads as:- "Rule 6 contemplates confirmation "action" taken by the BCI. The manner in which "action" would be taken has been prescribed in the rule itself. It provides that if urgent action becomes necessary, the Chairman may permit the business to be transacted by circulation of papers to all its members but the action proposed to be taken will not be taken unless agreed to by a majority of the members. The rule further requires that the action so taken shall be intimated to all the members and the papers shall be placed in the next meeting for confirmation. The rule therefore contemplates "urgent action" being taken on the opinion of the majority of the members. It is this "action" which is confirmed in the next meeting. It is obvious that if no action is taken, the question of confirmation does not arise." The Bar Counsel of India circulated the resolution for extension of the time of Kerala Bar Council and opinion of eight members were received but no action was taken on that basis. By the time the opinion of eight members was obtained, the term of the Kerala Bar Council stood expired and by that time only four members had indicated their approval. But that was not enough as the rule itself provided that "action" will not be taken unless agreed to by a majority of the members. By the time the opinion of eight members was obtained, the term of the Kerala Bar Council stood expired and by that time only four members had indicated their approval. But that was not enough as the rule itself provided that "action" will not be taken unless agreed to by a majority of the members. Since there were eighteen members in the Bar Council of India, the opinion of four of the members was wholly irrelevant and insufficient for "action" being taken. Rule 6 was not followed according to its mandate and on that basis no extension could be granted. The Apex Court dealing with these facts and the law, relying upon a decision in "Taylor v. Taylor (1875) 1 Ch D 426" observed as under: "We may point it out that the process for extension of the term, of Kerala Bar Council was initiated under Rule 6. If Rule 6 is to be applied, it must be shown that all its requirements were fulfilled. It is the basic principle of law long settled that if the manner of going a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor (1875) 1 Ch. D 426 which was followed by Lord Roche in Nazir Ahmad v. King Emperor, 63 Ind. App. 372 : AIR 1936 PC 253 who stated as under: "Where a power is given to do certain thing in a certain way, the thing must be done in that way or not at all." This rule has been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, 1954 SCR 1098 : AIR 1954 SC 322 and again in Deep Chand v. State of Rajasthan, (1962) 1 SCR 662, AIR 1961 SC 1527. These cases were considered by a Three Judge Bench of this Court in State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358; (1964) 1 SCWR 57 and the rule laid down in Nazir Ahmads case (supra) was again upheld. The rule has since been applied to the exercise of jurisdiction by Courts and has also been recognized as a salutary principle of administrative law." 15. The rule has since been applied to the exercise of jurisdiction by Courts and has also been recognized as a salutary principle of administrative law." 15. It is now not res-integra and is beyond the pile of controversy that where a power is given by the Statute evolving a certain procedure to be applied by the Court to particular set of disputes, to do certain thing in a certain way, the thing must be done in that way or not at all. The Commission having not applied the mandatory procedure contained in Sec.11 of the Act for obtaining the report from the Laboratory. The report being not a valid piece of evidence should not have been relied and acted upon. The Commission relying upon the said invalid report has come to erroneous conclusion, directing the payment of compensation. The impugned order, thus, cannot be maintained and deserve to be set aside. 16. For the aforesaid reasons, the appeal is allowed and the impugned order dated: October 7, 1998 passed by the Commission in complaint No.288 of 1994 is set aside and as a result thereof the complaint is also dismissed. No order as to costs.