Bratin Kumar Dey vs Kajal Ray

The present challenge has been taken out against an order whereby the State Consumer Disputes Redressal Commission affirmed an order of the District Forum, thereby turning down the maintainability point taken by the present petitioner.

The learned advocate appearing on behalf of the petitioner argues that the applicants/complainants, who are the present opposite parties no. 1 and 2, are not consumers under the Consumer Protection Act, 1986.

Placing reliance on Section 2(d)(ii) of the 1986 Act, the learned advocate for the petitioner submits that, to fall within the definition of consumer, the complainant had to hire or avail of any service for a consideration. next placing reliance on Section 2(b)(v) of the said Act, it is argued, in case of death of a consumer, his legal heir or representative can also fall with the definition of "complainant". It is submitted that the present opposite party no. 1 is the brother in law of the deceased consumer and the opposite party no. 2 is the wife of the opposite party no. 1, who are not heirs or legal representatives of the deceased consumer.

It is submitted on behalf of the petitioner that the present question is a pure legal question and, as such, despite not having been addressed in the court below cannot be agitated before this court for the first time.

On jurisdiction point of this court, the learned advocate for the petitioner seeks to interpret Section 21(b) of the 1986 Act by arguing that the revisional jurisdiction of the National Commission pertains to consumer disputes and orders passed therein.

'Consumer dispute', as defined in Section 2(e) of the 1986 Act, means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint. As such, it is argued that no second revision could lie before the National Commission within the contemplation of Section 21(b) of the said Act.

The learned advocate appearing on behalf of the opposite parties no. 1 and 2 submits, also by placing reliance on Section 2(d)(ii) of the 1986 Act, that consumers did not necessarily include persons, who hire or avail of services exclusively, but also take within its fold any beneficiary of such services other than the person, who hires or avails of the services.

In the present case, the complainants/opposite parties' case is that they were beneficiaries of the LPG connection pertaining to which the accident-in-question occurred, giving rise to the claim. As such, it is argued that the opposite parties no. 1 and 2 are the consumers within the contemplation of the 1986 Act and, as such, the fora below was justified in turning down the maintainability objection. It is further argued that objection as to the maintainability in the fora below did not take within its compass the question, which has now been raised, as such, the petitioner is precluded from agitating the point for the first time, since it is a mixed question of law and fact.

The learned advocate appearing on behalf of the opposite parties no. 1 and 2 cites a decision of the Allahabad High Court, rendered on April 13, 2011 in Misc. Single No. 2191 of 2011 (Ghaziabad Development Authority through its V.C. Ghaziabad vs. R.C. Saxena & ors.) for the proposition that there is no bar to a second revision before the National Commission and that an order passed by the State Commission in a revisional application under Section 19 of the 1986 Act is also amenable to the jurisdiction of the National Commission under Section 21(b) of the said Act.

Taking up the question of the power of this court in deciding the present application under Article 227 of the Constitution of India first, this court respectably differs with the view taken by the learned Single Judge of the Allahabad High Court. Section 21(b) of the 1986 Act specifically stipulates that the National Commission has powers to call for the records and pass appropriate orders in any 'consumer dispute', which is pending before or has been decided by any State Commission on the grounds as stated therein.

A 'consumer dispute', as defined in Section 2(e) of the 1986 Act contemplates only original proceedings, as rightly argued on behalf of the petitioner. as such, although there is no specific bar to a second revision, the power of the National Commission to take up the revisional applications is governed exclusively by Section 21(b) of the 1986 Act and, as such, powers are originated from said sub-section.

In such view of the matter, since there is no contemplation of a challenge to a revisional order to the State Commission within the four corners of Section 21 of the 1986 Act, it cannot be said that the National Commission has power to entertain second revisional application.

As such, in any event, there is no bar to this court in taking up applications under Article 227 of the Constitution of India against a revisional order passed by the State Commission.

As regards the merits of the matter, it is seen from the order of both the fora below that the only point urged by the present petitioner with regard to the maintainability of the order as to pecuniary jurisdiction and as to pendency of other consumer disputes pertaining to the same accident. Although the fora below correctly turned down such objection, even the petitioner does not urge those objections in the present revisional application.

This apart, there is no infirmity in the findings of both the fora below as regards the pecuniary jurisdiction of the district forum. As far as the pendency of other matters are concerned, these were taken out by different persons in different capacities than the present opposite parties no. 1 and 2 and, although pertaining to the same accident, do not have any identity of cause of action and, as such, there is no bar in the present opposite parties no. 1 and 2 taking out their complaint before the district forum.

However, the petitioner has raised a valid question as to whether the present opposite parties no. 1 and 2 were consumers under the contemplation of the Consumer Protection Act, 1986. In the event, the said opposite parties succeed in establishing that they were beneficiaries of the LPG connection in question, the district forum has the power to take up the matter, since the expression 'consumer' includes beneficiaries as well , as correctly argued on behalf of the opposite parties no. 1 and 2. Moreover, the said question being a mixed question of law and fact cannot be adjudicated upon being taken for the first time before this court.

Be that as it may, since nature of the objection taken relates to the root of the matter and will hit the jurisdiction of the district forum itself to take up the matter. In the event the petitioner succeeds in the challenge, the district forum ought to take up the matter first as an issue and proceed with the hearing of the dispute by deciding the other issues thereafter.

Accordingly, this revisional application bearing C.O. 70 of 2019 is disposed of without interfering with the impugned orders, but giving the petitioner the liberty to take up the point of maintainability of the proceeding before the district forum on the ground that the opposite parties no. 1 and 2 were not consumers within the purview of the Consumer Protection Act, 1986. If such an objection is taken by way of a formal application by the present petitioner before the district forum within a fortnight from date, the district forum will decide the same, upon hearing both sides first prior to proceeding with the other matters.

There will be no order as to costs.

Photostat certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.