ABDUL HAMID CHAND SAHEB SHAIKH vs P U SRINIVASAN DECEASED THROUGH LRS

-THIS Appeal has been directed against the order passed by District Consumer Forum, Solapur in consumer complaint No. 189/95 decided on 20. 5. 1998, wherein three orders have been challenged, one dated 20. 5. 1998 passed by Mr. S. G. Dhamankar, President of District Consumer Forum, Solapur, another dated 20. 5. 1998 passed independently on 18. 3. 1998 by President Mr. S. G. Dhamankar. Third dissenting judgment is of Mr. R. P. Kanbaskar, Member of District Consumer Forum, Solapur dated 6. 5. 1998 and yet another judgment of third member whom matter was referred to decided by Mrs. V. S. Kulkarni, Member of District Consumer Forum, Solapur dated 20. 5. 1998.

MR. Kanbaskar-Member and President Mr. Dhamankar constituted Bench who heard the complaint together. President by order dated 18. 3. 1998 allowed the complaint and granted compensation of Rs. 75,000 to the complainant with cost of Rs. 5,000 and interest @ 18% p. a. and also passed some other orders by his first judgment dated 18. 3. 1998. Mr. Kanbaskar, who was Member sitting with Mr. S. G. Dhamankar-President while hearing this complaint, was pleased to dismiss the complaint by writing dissenting judgment dated 6. 5. 1998. So the matter was referred to third member, who wrote judgment agreeing with the President, but differed on the opinion of the President so far as compensation is concerned. So she passed order allowing complaint, but directed opponent to refund all the fees amounting to Rs. 11,000 to the complainant with interest @ 18% p. a. and also awarded compensation of Rs. 5,000 and cost of Rs. 2,000. As such President of District Consumer Forum passed final judgment dated 20. 5. 1998 exercising powers conferred on the President under Rule 4 (11) of the Maharashtra Consumer Protection Rules, 1987 and confirmed the judgment delivered by him on 18. 3. 1998 as final judgment. So these judgments are challenged in this appeal by the appellant, who was original O. P. Facts to the extent material may be stated as under: complainant Mr. P. U. Srinivasan was Senior Advocate from Pune and opponent/appellant herein claims to be Hakim (Doctor) of Unani System of Medicines. Complainant approached appellant for his ailment and paid Rs. 1,000 as charges for the medicines given to him. But in the course of treatment given, it was a case of respondent herein that opponent administered him steroids and, therefore, he suffered ill health and, ultimately, he was required to take treatment at Inlaks and Budharani Hospital and at Nisargopachara Ashram, Urlikanchan and was required to spend lot of monies for rectification of damage done due to the wrongful treatment given by the appellant herein. Learned District Consumer Forum consisting of Mr. S. G. Dhamankar as President and Mr. Kanbaskar - Member heard the complaint and Mr. Dhamankar allowed the complaint, awarded Rs. 75,000 as compensation to the complainant by his judgment dated 18. 3. 1998. However, another member constituting Bench Mr. Kanbaskar was pleased to dismiss the complaint. So matter was referred to third member and Mrs. V. S. Kulkarni-third member by her judgment dated 20. 5. 1998 agreed with the President, but reduced the compensation from Rs. 75,000 to Rs. 11,000 and awarded compensation of Rs. 5,000 and cost of Rs. 2,000 and hence this appeal challenging virtually all the orders passed by members of the District Consumer Forum.

At the outset, it must be mentioned that as per law, when any matter is referred to third member, not sitting with the bench, who decided the matter earlier, he is required to agree either with one of the two members including President, who constituted the Bench, but differed amongst inter se. We are finding that in most of the District Consumer Forums, the third member to whom matter is referred because of disagreement between the earlier two members decide the matter altogether differently forgetting the fact that third member is required to agree with the finding recorded by either of the two members, who initially heard the complaint. Third member is not supposed to go beyond the order passed by either of the two members of the Forum, who initially decided the complaint, but in large number of cases, it is unfortunate that we come across cases wherein third member takes altogether different view and does not fully agree with the judgment delivered by and of members of the earlier bench and, ultimately, at the Appellate Court we have to remand the matter once again giving directions as we are going to give in the instant appeal. So it is necessary to direct all the District Consumer Forums working in the State of Maharashtra once for all that when matter is referred to third member owing to disagreement between the existing bench, the third member is required to simply agree with either of the members of the bench, who gave dissenting judgment qua each other. Third member is not supposed to give altogether different judgment ignoring the judgments given by earlier two members though one of them gave dissenting judgment. Third member must agree with one of the two judgments delivered by the existing members of the bench. He should agree in toto. He is not supposed to deliver judgment separately, independently, varying the operative order passed by the earlier member with whom he is agreeing. If third member is allowed to write judgment at his or her free will then very purpose of referring the matter to third bench will be frustrated and legal impasse would not be solved at all. Primarily District Consumer Forum consisting of three members (one President and two members) have to decide the matters per majority. But in the instant case, only two persons President and Member heard the complaint and delivered two separate judgments, one allowed the complaint, another dismissed the complaint. Rightly it was referred to third member Smt. V. S. Kulkarni, who should have either dismissed the complaint agreeing with Mr. Kanbaskar-Member by writing short order or she should have allowed the complaint agreeing with the finding as well as operative order passed by President Mr. Dhamankar. Instead of doing so, third member Smt. Kulkarni reduced the compensation substantially, thereby judgment to be given per majority by the District Consumer Forum could not be achieved in terms of provisions contained in Section 14 of Consumer Protection Act, 1986. As such, we are inclined to bring to the notice of all the members of the District Fora that whenever reference is made to the third member, he should fully agree with either of the member''s judgment and not partially or at least take care not to disturb the operative order of the judgment, which he or she is concurring while exercising third member''s power, so that there would be two judgments one by majority and another dissenting one. This is what is exactly contemplated under Section 14 (2-A) Proviso.

WE perused the last judgment given by President exercising powers he had been vested with under Rule 4 (11) of Maharashtra Consumer Protection Rules, 1987, whereby rule was enacted by Maharashtra Government in its Consumer Protection Rules that in case of disagreement, President''s view shall prevail. Exercising this power, president Mr. Dhamankar passed latest order holding that he was confirming his own judgment delivered on 18. 3. 1998. It should be treated as final judgment. This judgment is dated 20. 5. 1998. In our view when there is inconsistent provisions between the Act and Rules, the provisions of the Act has got to be given precedence and primacy compared to the provisions contained in the Rules framed by the State Government. When the provisions of the Act are clear, it has got to be given fullest weight age and not the rules framed by the State Government under enabling provisions contained under various sections of Consumer Protection Act, 1986. No doubt State Government has got power even under Section 14 to frame rules under Sub-section (3) laying down the procedure relating to the conduct of the meetings of the District Forum, its sittings and other matters, but this enabling provision does not mean that State Government can make rules contrary to what is contained in Sections 14 (1), 14 (2), 14 (3) and its proviso appended thereto and even if there be any such provisions contrary to what is mentioned in Sub-sections (1), (2) and (3) of Section 14, the provision of law as contained in Sub-sections (1), (2) and (2-A) will prevail over the rules framed by the State Government in this behalf. Statutory rule framed by the State Government, in our case, State of Maharashtra is subordinate legislation to the main provisions of the Act. So if there is any difference between the main provisions of the law and the rules framed by the State Government in this behalf in terms of Sub-section (3) of Section 14, provisions of law as mentioned in Sub-sections (1), (2) and (2-A) of Section 14 will prevail over the rules framed by the State Government and this ought to be borne in mind by the Consumer Fora while dealing with consumer complaints and the procedure applicable thereto. Calcutta High Court in the case of Smt. N. Taneja and Another v. Calcutta District Forum and Others reported in AIR 1992 Calcutta 95 in paras 22 and 28, clearly laid down that Rule No. 5 (5) of West Bengal Consumer Protection Rules, 1987 overrides Section 14 of Consumer Protection Act, 1986 and as such the said Rule 5 (5) is bad, illegal and inoperative. It relied upon the judgment of the Full Bench decision of Allahabad High Court reported in AIR 1976 All. 328 to hold that rule making authority cannot enlarge legislatively its field. If it goes beyond what the section contemplates, the rule must yield to the Statute. A compliance with the laying requirements does not confer any validity to the subordinate legislation if it is in excess of power confirmed by the enabling Act. It is held that in other words, subordinate law cannot substantially modify the scheme of the Act. In this view of the matter, if there is any conflict between the provisions of the Act and the enabling rules framed by the State Government, then provisions contained in the main Act i. e. Consumer Protection Act, 1986 will always prevail compared to the Rules framed by the State Government under enabling provisions of Consumer Protection Act, 1986. This principle has also been reiterated in the case of Hukum Chand v. Union of India, AIR 1972 SC 2427 by the Hon''ble Supreme Court. Thus we are inclined to observe that wherever there is inconsistency between main provisions of Act, in our case Consumer Protection Act, 1986 and the rules framed by the State Government, the provisions of the Act will have to be acted upon or applied ignoring the rules framed by the Government, if they are inconsistent with the provisions of the main Act.

IN the light of the discussion made above, we are inclined to observe that the learned District Consumer Forum did not apply their mind properly and decided the complaint erroneously and gave four judgments contrary to the provisions of the Act. This situation is not at all contemplated in terms of provisions contained in Section 14 of Consumer Protection Act, 1986 and therefore impugned judgments will have to be quashed and set aside and the complaint will have to be remitted back to the District Consumer Forum for deciding the matter afresh. However another point is required to be addressed before remanding the matter to the District Consumer Forum. During the pendency of this appeal, complainant/respondent expired. His L. Rs. have been brought on record. He died on 25. 1. 2000 and as per Pursis dated 17. 2. 2000, a) Mrs. Thulasy Srinivasan (b) Mr. Ranjeet Srinivasan and (c) Dr. (Mrs.) Sunita Bhaskaran all R/o. A-3 Shankarsheth Road, Pune - 411 047 are the legal representatives of deceased respondent Mr. P. U. Srinivasan. Commission allowed their application, but in the memo of appeal their names have not been substituted. We direct office to substitute their names in place of original respondent in the appeal memo. At the cause title their names should be shown as respondent in place of deceased respondent. Important question of law was agitated before us relying on Supreme Court ruling in the case of Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair reported in AIR 1986 SC 411, wherein in a case for defamation in terms of Order 22 Rules 1 and 11 and Section 306 of Succession Act, Hon''ble Supreme Court held that action for defamation would not survive with the death of the appellant (plaintiff ). However, there is another ruling of Hon''ble Supreme Court reported in (1988) 1 SCC 556, M. Veerappa v. Evelyn Sequeira and Others, wherein Supreme Court was concerned with the abatement of suit in terms of legal maxim, "actio personalis cum moritur persona". In this ruling, Supreme Court was pleased to lay down that in a suit for damages and compensation filed by his client against Advocate for negligence in performance of professional duties, question would be if negligence resulted in injuries of personal nature, the suit or appeal will abate on the death of plaintiff or appellant and L. Rs. of the deceased will not be entitled to be impleaded. However, in the same judgment, Hon''ble Supreme Court categorically held that suit will survive to the extent it is based on contractual liability. So if there is suit for damages based on contractual liability, death of the plaintiff would not put to an end the litigation. His L. Rs. can continue the said suit or appeal to its logical end. But if legal action is based on personal injuries arising out of tortuous liability, the suit or appeal emanating from such tortuous liability shall come to an end applying the maxim mentioned supra. In this view of the matter, in our considered view, the instant case is not simply based on injury arising out of tortuous liability, but it was injury arising out of contractual liability, because deceased Mr. P. U. Srinivasan had paid Rs. 11,000 for the Unani medicines appellant was giving to him and he found that appellant had not given Unani medicines, but had given him steroids, which was contrary to the contractual obligation arising between deceased complainant and the appellant herein. It is for this reason, applying the ratio of the Supreme Court laid down in M. Veerappa v. Evelyn Sequeira and Others, in our considered view the action will not die with the death of respondent/complainant and legal heirs can validly continue the present complaint even after remand. So legal maxim mentioned above will not apply to the facts and circumstances of this case and therefore turning down the vehement arguments made before us on this ground, we hold that instant appeal can be prosecuted by the legal heirs of deceased respondent and said maxim has no application to the instant case. In the circumstances, we are inclined to allow this appeal setting aside all the judgments given by the various members of the Forum below. Hence, the following order: Order 1. Appeal is allowed. 2. All the judgments delivered in consumer complaint No. 189/1995 by District Consumer Forum, Solapur are hereby quashed and set aside. 3. Complaint is remitted to the District Consumer Forum, Solapur for deciding it afresh bearing in mind the provisions contained in Section 14 of Consumer Protection Act, 1986. 4. Copies of the order herein be furnished to the parties.

Appeal allowed.