Impunity Vs Jeopardy : The Partisan Provisions Of Consumer Protection Act

Change is the only constant . Keeping in mind the milieu and socio-political affairs of the nation , the constitution makers went on board with "due process of law ''over " procedure established by law ''. The categorization of procedure established was done via two ways – procedural and the substantive procedure. The procedural due process existed from A.K. Gopalan case (1950) till Maneka Gandhi case (1978). It was interpreted to mean that whatever is the procedure prescribed, it must be followed and deviance from the procedure rendered was not permitted. The Supreme Court of India, then with its judgement in Maneka Gandhi case evolved the concept of substantive due process. Under due process , it is the legal requirement that the state must respect all the legal rights owned to a person and that the laws must conform with fairness and shouldn't be arbitrary in nature. Due process has an ancient history which can be traced from Magna Carta and hence prima facie importance was given to principles of natural justice.

The incorporation of social – welfare based legislation, the Consumer Protection Act, 1986 was a table-turning hallmark event to protect and safeguard the interests of the consumers from the dishonest practices by sellers. The preamble and statement of objects and reasons reflects the prima facie tilt given to the consumer who has suffered in the conundrum of malpractices. They also provide that the quasi-judicial machinery will observe the principles of natural justice to be kept in mind before deriving to the conclusion that the rights accrued in favor of the consumer have been violated. As per Section 13(2)(a) read with Section 13(3) of the Consumer Protection Act 1986 it provided for departure from the principles of natural justice in case the procedure provided so for such departure stands complied with.

However, such practice followed at the district forum as per the strict statutory provision laid down under the Act has created a wave of litigation leading to 'docket explosion' thus overwhelming superior courts furthering pendency of cases. A non-filing of reply within 30 (+15) days despite any deliberate and vicious intentions owing to extraneous reasons has led to a complete shunning off the right of opposite party, causing an ex-parte order and an appeal made to superior courts ending up in docket explosion and overburdening of courts. An empirical study conducted in 2011 showed that of the total workload of the Supreme Court, 84.06 percent were special leave appeals under Article 136, and 3.1 percent were other kind of appeals. This means that less 3 percent of the cases heard by the Supreme Court in recent years have been constitutional cases, properly so called.

Current Practices

The usual procedure followed in adjudication of a consumer dispute involve following steps:

• Filing of complaint by the 'consumer' based on pecuniary jurisdiction of the Forum/Commission.
• Completion of pleadings.
• Evidence led by both sides.
• Arguments
• Adjudication and Judgement.
• Appeal (if any) to higher commission.

Now let's consider few situations as under:

• Hon'ble National Commission had permitted the builder to file his written statement subject to costs of Rs.1,00,000/- and observed that if not allowed then it would compromise their defence.
• Hon'ble National Commission once again allowed filing of written statement subject to costs of Rs.30,000/- on the ground that "deemed service" under Section 28-A of the Consumer Protection Act can be misleading in view of the services rendered by postal department.
• Hon'ble Punjab State Consumer Disputes Redressal Commission had allowed Insurance Company to file his written statement after the expiry of statutory period subject to costs of Rs.30,000/- wherein the authorized manager of the insurance company admitted their negligence that the notice of the complaint was misplaced.
• Hon'ble Uttar Pradesh State Consumer Disputes Redressal Commission had set aside ex-parte judgement in favour of complainant on the ground that the opposite party was served on incorrect address.

The aforesaid instances are of 2019 which clearly depicts the ground realities. It is asking for a bit too much that these procedures will change as its execution issues involve many un-controlled components.

The provisions of Section 13(2)(a) of Consumer Protection Act has not just aborted the power of District Forum by clipping its wings which could have dealt with its day-to-day procedural issues, but rather led to formation of constitutional benches to decide upon on minor technical issues as such. In the unfolding, not just an ace in hole has occurred but there was a consequential loss of time, collateral and revenues at all fronts.

Constitutional Bench Judgement

In recent years, various benches of Supreme Court referred couple of questions, as stated below, to clear the incongruity between two-judge bench and some three-judge bench judgments. The constitutional bench constituted in New India Assurance case[11], faced the task to settle two questions of law:

• Whether the District Forum has power to extend the time for filing the response beyond the period of 15 days, in addition to 30 days? and
• What would the commencing point of limitation of 30 days be as stipulated under the Section 13(2) (a) of the Consumer Protection Act?

The various benches which referred aforesaid questions to the constitutional bench, were hearing an appeals under Article 136 with various orders passed by National Commission impugned therein and the vires of the statutory provisions were not under challenge. The operative part of the judgement rendered by constitutional bench is reproduced as under:

"To conclude, we hold that our answer to the first question is that the District Forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Consumer Protection Act; and the answer to the second question is that the commencing point of limitation of 30 days under Section 13 of the Consumer Protection Act would be from the date of receipt of the notice accompanied with the complaint by the opposite party, and not mere receipt of the notice of the complaint."

Respectful Disagreement to the Judgement

The aforesaid judgement can have strange consequences when it actually comes to practice at the District Forum level. Hence, we respectfully beg to differ from the judgement provided in the New India Insurance Co. Ltd case. This judgement can blindly convict the opposite party causing severe jeopardy to the justice system. The significance of impartiality is a key element of justice system and is often depicted in material form by Themis- the goddess of justice and law. She typically clutches a sword in one hand and a pair of scales in the other. She is blindfolded to emphasize that "Justice is blind: resistant to pressure or influence".]

That judges are not exempt from human frailty, and thus even there judgements should be open to rectification. The obvious injustice of a wrongly convicted opposite party is thus assuaged by granting him the very right to appeal. In actual practice, facts and circumstances are different. The lawyers sometimes tend to abuse the adversarial process. The introduction of 'mediation references' under the yet to be notified Consumer Protection Act 2019 clearly implies ample evidence of infirmities in law.

The provisions with regard to limitation under the Consumer Protection Act, 1986 are fairly liberal in favour of both 'complainant' so far as his condonation of delay beyond two years is concerned and 'District Forum' so far as their disposal within three months is concerned. But the provisions of Section 13(2) (a) read with Section 13(3) are resting the entire burden of expeditious disposal merely on the shoulders of opposite party in consumer disputes dispensation system.

The Consumer Protection Act, 2019

The newly incorporated Consumer Protection Act is awaited to be notified soon and would replace the existing Act. Though the new Act has cleared the air around many of the existing faulty provisions by bringing in fresh state of art provisions friendly to the consumers, like now the complaint can be filed in a consumer court where the complainant resides or works and that E-Commerce will now be in the radar of the government it still has left a huge room for discrepancies which will further lead to overburdening of courts. The provisions stated under Section 38(3) & Section 38(5) of the new Act will continue to pose old challenges as discussed above.

After this recent judgement by the Hon'ble Apex Court one thing can be visualized that the superior Commissions/Courts will unnecessarily be over-burdened by questions which are so technical in nature that they could have been easily dealt by the special legislation at the District Forum stage. The basis of this judgement appears to have been emerged upon from the wisdom of the legislature which is reiterated. Needless to say, this is not a bad precedent but at the same time the judiciary needs to come out with solutions that are practical and prevalent which legislators are otherwise not able to comprehend.

Lord Mansfield once observed the ludicrous nature of the legal fiction that " Ignorantia juris non excusat '' exists and said that " It would be hard upon the profession (legal profession here) if the law was so certain that everybody knew it! Unfortunately, this judgement rather appears ephemeral and a game of table-tennis wherein the ball keeps lingering between the Legislature and the Judiciary, wherein the Hon'ble Constitutional Bench had missed an opportunity to fill the gaps & inadequacies in existing legislation.

Conclusion

In 1978, the Principles of natural justice and fairness were held to be primary by the Supreme Court even when constitutional text was silent. The judicial review of Article 21 in 1978 led to constitutional values of fairness and free from arbitrariness were read as a part of prescribed text. The preamble of Consumer Protection Act, 1986 expressly provides for principles of natural justice but another statutory provision expressly takes away subject to exceptions. Whether the provisions which prescribe time limit for filing reply should be mandatory or directory in nature needs to be interpreted in balancing way by the Legislature. To live up to Ronald Dworkin's aspirations in recognizing rights, we must distinguish between popular morality and constitutional morality. It was way back in 2002 that the Topline case[16] judgement rendered by the Supreme Court paved a way that equitable grounds should be kept in mind before reaching a conclusion and that a liberal interpretation should be a guiding factor on deciding questions of limitation.

Though it is right that "justice delayed is justice denied" it is equally true that "justice hurried is justice buried". A presumption of innocence of the complainant doesn't imply the guilt of the opposite party. As an important aspect on the expeditious disposal of consumer disputes, lest we shouldn't forget that violation of principles of natural justice is integral to the existence of quasi-judicial bodies. The original forums where the consumer dispute proceedings commence should therefore can be given more powers on procedural matters, otherwise unburdening 'New Delhi', the final resort of remedies looks nothing but like a distant dream.

Views Are Personal Only.

(Ashish Bansal is practicing advocate at the Punjab & Haryana High Court, Chandigarh , Pragya Parijat Singh is a practicing advocate at the Supreme Court of India. She is presently pursuing her LL.M from University of Cambridge, UK.)