CHOKHANI GAS SERVICE-/O.P. vs VINOD KUMAR

THIS appeal under Sec. 15 of the Consumer Protection Act, 1986 ("the Act") is directed against the order (majority order of two members) of the District Forum, Jhunjhunu dated 20.12.91 by which the opposite party-appellant was directed to pay Rs. 1,000/- as compensation within 15 days and a direction was also given for future. In view of the conclusion to which we have arrived at, it is not necessary to state the facts leading to this appeal in detail. The complainant-respondent filed a complaint dated 12.7.90 before the District Forum for a direction against the opposite party-appellant to release the gas connection in favour of the complainant-respondent and also to award compensation. Some other directions were also sought.

THE opposite party-appellant contested the complaint by filing the version of the case on 10.9.90. It was stated in the version of the case that gas connection to the complainant-respondent had already been released on 1.8.90. THE President and one member of the District Forum heard the arguments on 28.10.91. THE member who heard the arguments was Mr. Bajrang Lal Dhabhai. On 23.11.91 the President of the District Forum pronounced the order. According to which the complaint was ordered to be dismissed. THE two members Mr.B.L. Dhabhai and Dr. Jahanara Begum did not agree with the order of the President. It was incorporated in the ordersheet dated 23.11.91 that they will give a separate judgment. THE date fixed was 10.12.91. On 20.12.91 it was mentioned in the order sheet that the order of the President and the members are separate. According to the order of the President the complaint is to be dismissed and according to the orders of the two members the complainant is to beawarded Rs. 1000/- as compensation within 15 days and for future direction was given. Against the order of the majority the appeal has been filed by the opposite party-appellant. We heard Mr. Ashok Mehta, Advocate for the appellant and Mr. Surendra Parekh, Advocate for the respondent and have carefully considered the order dated 23.11.91 passed by the President dismissing the complaint and the endorsement of disagreement/dissent written by the two members on it. The two members wrote a separate order on 20.12.91 and granted reliefs to the complainant-respondent as stated above.

The point involved in the appeal came up for consideration before the State Commission in the United India Insurance Company Ltd. v. Duli Chand (Appeal No. 11/92 decided on 14.7.92 by the State Commission). The majority order dated 20.12.91 cannot be sustained for the reason that the arguments in the complaint were heard by Shri Bajrang Lai Dhabhai, member and the President on 28.10.91. Dr. Jahanara Begum did not hear the arguments on 28.10.91. However, she became party to the order dated 20.12.91. The order dated 20.12.91 which is a majority order was passed by Shri Bajrang Lal Dhabhai and Dr. Jahanara Begum. It is well settled by various decisions of the State Commission that a member of the District Forum who is not a party to the Bench which heard the arguments should not be a party to the judgment, for that member had no occasion to hear the arguments of the parties. A Redressal Forum under the Act discharges quasi-judicial functions and as such if the arguments have been heard, the order should be pronounced by those who heard the arguments. In other words if the member or President who had not heard the arguments, he should not be a party to the order. Sec.14(2) and (2A) of the Act read as follows : - "(2) Every proceeding referred to in Sub-section (1) shall be conducted by the President of the District Forum and at least one member thereof sitting together : Provided that where the member, for any reason, is unable to conduct the proceeding till it is completed, the President and the other member shall conduct such proceeding de novo. (2A) Every order made by the District Forum under Sub-section (1) shall be signed by its President and the member or members who conducted the proceeding : Provided that where the proceeding is conducted by the President and one member and they differ on any point or points they shall state the point or points on which they differ and refer the same to the other member for hearing on such point or points and such point or points shall be decided according to the opinion of that other member."

APART from that the President has pronounced the order on 23.11.91 as is apparent from the order itself as well as the order sheet dated 23.11.91. The majority order was pronounced on 20.12.91. The course adopted was not proper as the judgment whether unanimous or majority should be pronounced on the same day. The principles underlying the provisions of Order XLI, Rule-34 C.P.C. afford useful guidance as they provide how dissent is to be recorded. Order, XLI, Rule 34 C.P.C. reads as under- "34. Dissent to be recorded- Where the appeal is heard by more Judges than one, any Judge dissenting from the Judgment of the Court shall state in writing the decision or order which he thinks should be passed on the appeal, and he may state his reasons for the same."

In the order that was pronounced by the President, it was merely written by the two members that they do not agree and a separate order will be written. On account of the pronouncement of the two separate orders on two different dates, there may be difficulty in computing the period of limitation for filing the appeal. Proper course which the District Forum should have adopted was that when the two members did not agree with the order of the President, the President should not have pronounced the order on 23.11.91 when the majority order was not ready on that day. The facts in United India Insurance Company''s case (surpa) so far as passing of the order is concerned are similar with the facts of the appeal on hand. In United India Insurance Company''s case(supra) the State Commission allowed the appeal and set aside the majority order and the case was remanded to the District Forum. The points in that appeal were more or less the same which are involved in this appeal. Arguments advanced by the learned Counsel for the parties are also the same. Adopting the reasons given in the United India Insurance Company''s case (supra) and the other reasons stated hereinabove, the appeal is allowed and the order dated 20.12.91 is set aside.

THE case is sent back to the District Forum, Jhunjhunu with a direction to take it on its file and decide it afresh in accordance with law keeping in view the provisions of Sees. 14(2) and (2A) of the Act after affording an opportunity of hearing to all concerned. It may be stated that while passing a fresh order, the order dated 23.11.91 passed by the President of the District Forum dismissing the complaint shall be ignored. The appeal is allowed and the complaint is remanded. Parties are left to bear their own costs of this appeal. Appeal Allowed.