Referring Member Of Consumer Forum To Only Give Opinion On Points Raised For Reference, Not Decide Matter Itself: Allahabad High Court

The Allahabad High Court has held that when a matter is placed for reference before a third member, it is the job of the referring member to just opine on the issues raised for reference. Justice Pankaj Bhatia held that in such a case, it was not up to the referring member to resolve the entire matter themselves.

Referring to the Consumer Protection Act, the Court held that

“In terms of the proviso of Section 58(3), the powers of the President or the other member to whom the points have been referred for opinion can only delve and decide on those questions alone, he cannot act as a 3^rd member to decide the lis.”

Case Background

Petitioner is the director of the Nursing Home where the respondent had suffered critical injuries while undergoing a caesarean operation. Aggrieved, the respondent filed a claim for negligence before the State Consumer Forum, who passed an order of Rs. 95 Lakhs in favour of the respondent.

Against this, appeals were preferred by the petitioner and two other doctors and the matter was subsequently placed before a division bench of the National Consumer Forum. However, there was difference of opinion between the two judges assigned to the bench. One ruled against the relief and the other, in favour of it.

Thereafter, as per Section 58(3) of the Consumer Protection Act, the matter was placed before a third member for reference. Five questions were raised for reference and the third member ruled in favour of the relief as decided by the judge of the division bench.

In response, the petitioner filed the present petition under Article 227 of the Constitution of India contending that there was no proof substantiating the claims of the respondent. It was submitted that out of the five points framed for determination, the referring member adjudicated on none and simply concurred with the opinions of one of the members of the division bench. It was argued that this was in contravention to Section 58(3) of the Consumer Protection Act.

Per contra, respondent contended that the scope of interference under Article 227 in awards by the National Consumer Forum was very narrow. It was argued that once medical negligence had been established on part of the petitioners, the same would be the determining factor for adjudication and that no new evidence could be accepted at this belated stage.

High Court Verdict

The Court held that as per the decision of the Supreme Court in M/s Universal Sompo General Insurance Company Ltd v. Suresh Chand Jain, the scope of powers under Article 227 can be exercised against orders passed by both the National and the State Consumer Forums. It however clarified that the same did not amount to an appeal, allowing the Court to appreciate any new evidence.

Justice Bhatia examined Section 58(3) of the Consumer Protection Act and held that the member before which the matter was placed for reference could only give their opinion on the points framed for determination and not adjudicate the matter itself. The Court relied on number of decisions of the Supreme Court to establish the same.

“In the present case, from the impugned order, it appears that he has decided the lis an favoured the view taken by one of the members instead of deciding the give questions referred to them, which is clearly not a proper exercise of power specifically relating to proviso of Section 58 (3) of the Consumer Protection Act. It is equally fairly well settled that the reference Court, it is the form of a Court giving opinion and essentially it does not perform the adjudicative function”, held the Court.

The Court directed that the matter be placed afresh before a third member for considering the referred questions. It directed that upon answering these questions, the referring member shall then send the case back to the National Consumer Forum to be finally decided.

Accordingly, the petition was allowed.

Case Title: Dr. Dinesh Kumar v. Shri Askari Hussain and 6 Ors. [MATTERS UNDER ARTICLE 227 No. - 901 of 2024]

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