C.S.TOMAR vs KALYANI SHARP INDIA LIMITED

THE complainant has filed this appeal under Section 15 of the Consumer Protection Act, 1986 (for short the ''Act'') aggrieved of the order dated 31.8.1996 passed in case No. 9/95 by the District Consumer Disputes Redressal Forum, Gwalior (for short the ''District Forum'').

IT is not necessary to reproduce the facts in details. Suffice it to say, that the complainant made an application under Section 27 of the Act to punish the opposite parties for non-compliance of the order dated 29th April, 1994 made in complaint case No. 307/93 by the District Forum. The District Forum vide order dated 30.8.1994 issued show-cause notice to opposite party. The opposite party challenged the said order of show cause in Appeal No. 441/94, which was dismissed. After dismissal of the said appeal on the material produced by the parties the District Forum held that it is the complainant who did not give the V.C.R. for rectifying the defects in spite of notice and personal contact of the Service Engineer of the opposite party. The complainant also did not agree to the offer made by the opposite party for replacement of the V.C.R. by new one, hence, dismissed the application as no case is made out for taking action under Section 27 of the Act. Mr. B.V. Bhargava, learned Counsel for the respondent submitted that an order passed on an application under Section 25 or 27 of the Act, is in the nature of an order on an application for execution of the order made under Section 14 of the Act by the District Forum, hence, no appeal lies. Counsel cited a decision of Haryana State Consumer Disputes Redressal Commission in case of Kohinoor Carpets, Panipat & Ors. v. Mr. Rajinder Arora, II (1991) CPJ 429.

Mr. V.K. Nayak, learned Counsel for the appellant placing reliance on a decision of the Allahabad High Court in Anil Sethi & Anr, v. President, District Consumer Forum & Anr., AIR 1996 All. 287, submitted that where there is a final adjudication of the proceedings under Section 25 or 27, the aggrieved party has a right of appeal under Section 15 of the Act. Section 15 does not limit down to the appeals against the final order made by the District Forum, under Section 14 only. If this Commission holds that no appeal lies in that case the appellant be permitted to convert the appeal into revision. Counsel placed reliance on the decisions of the Punjab State Consumer Disputes Redressal Commission in case of Tarsem Lal Goyal v. Union of India & Ors., I (1993) CPJ 32, and C.R. Kataria v. The Consumer Disputes Redressal District Forum, Patiala & Ors., II (1993) CPJ 805, and a decision of the Rajasthan State Consumer Disputes Redressal Commission in case of M/s. Agrawal Sales Corporation v. Jagdish Prasad Vyas, I (1993) CPJ 538.

APPEAL is the right of entering a Superior Court and invoking its aid and interposition to redress an error of the Court below. The right of appeal is substantive right regulated by the statute. It is a creation of the statute. It does not exist unless it is specifically conferred by the statute. It is for the Legislature to decide whether the right of appeal should be created or given to an aggrieved party or not in the statute. If the statute does not create any right of appeal no appeal can be filed. The right of appeal inheres in no one and, therefore, for maintainability of an appeal there must be authority of law. The right of appeal is limited to various stages of the same proceedings e.g., suit, appeal or second appeal; but it is not available in respect of a later original proceeding somewhat connected with the earlier one (see the decisions of Supreme Court in Smt. Ganga Bai v. Vijay Kumar & Ors., (1974) 2 SCC 393, Gujarat Agro Industries Company Limited v. M.C. of City of Ahmedabad, IV (1999) SLT 204, and Superintending Engineer & Ors. v. B. Subba Reddy, IV (1999) SLT 280, and Principles of Statutory Interpretation, Seventh Edition by Justice G.P. Singh, Pages 396 and 401). In view of the settled position of law about the right of appeal, we have to consider the question whether right of appeal is given to an aggrieved party against an order passed on an application under Section 27 of the Act. At a bare look to the relevant provisions of the Act, it is clear that Section 12 lays down the manner in which the complaint shall be filed before the District Forum. Section 13 lays down the procedure on receipt of the complaint by the District Forum. After holding the enquiry in a complaint, in the manner prescribed under Section 13, the District Forum has to record its finding on the allegations contained in the complaint about the deficiency in service and to issue an order directing the opposite party to do one or more of the things enumerated in Clauses (a) to (i) of Sub-section (1) of Section 14. Any person aggrieved of an order made by the District Forum may prefer an appeal to the State Commission under Section 15 of the Act, which reads, thus : "15. Appeal--Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed : Provided that the State commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period."

Section 16 speaks of the Composition of the State Commission. Section 17 specifies the jurisdiction of the State Commission, which read thus : "17. Jurisdiction of the State Commission- Subject to the other provisions of this Act, State Commission shall have jurisdiction- (a) to entertain, (i) complaints where the value of the goods or services and compensation, if any claimed, exceeds rupees five lakhs but does not exceed rupees twenty lakhs; and (ii) appeals against the orders of any District Forum within the, State; and (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity."

FROM a bare reading of Section 17 it is clear that the State Commission has been vested with the jurisdiction to deal with the complaints on its original side where the value of the goods or services and compensation exceeds Rs. 5 lakhs, but does not exceed Rs. 20 lakhs; and to hear appeals against the orders of any District Forum within the State. Clause (b) of Section 17 speaks of the revisional jurisdiction of the State Commission to be exercised in a pending or decided any consumer dispute by the District Forum if the State Commission finds that the District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. Section 19 speaks of an appeal to National Commission against an order passed by the State Commission in exercise of its powers conferred by Sub-clause (i) of Clause (a) of Section 17, Section 21 speaks of jurisdiction of the National Commission. Section 23 speaks of the appeal by any person aggrieved of an order made by the National Commission in exercise of its power conferred by Sub-clause (i) of Clause (a) of Section 21 to the Supreme Court. Section 24 speaks of the finality of orders, which reads thus : "24. Finality of orders -Every order of a Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such order under the provision of this Act, be final.

Section 25 of the Act lays down that every order made by the District Forum, the State Commission of the National Commission may be enforced by the District Forum, State Commission or the National Commission as the case may be, in the same manner as if it were decree or order made by a Court in a suit pending. Section 26 speaks of dismissal of frivolous or vexatious complaints. Section 27 speaks of penalties which reads thus : "27. Panalties-Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or the complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both : Provided that the District Forum, the State Commission or the National Commission, as the case may be, may, if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment of fine, or both, for a term lesser than the minimum term and the amount, lesser than the minimum amount, specified in this section."

THUS, from the scheme of the Act it is evident that on commencement of the lis of the consumer dispute by filing a complaint either at the District Forum or at the State Commission or the National Commission, an appeal is provided only under Sections 15,19 and 23 of the Act. If no appeal is preferred by any person aggrieved of the order passed by the District Forum, State Commission or the National Commission dealing with a complaint on its original side, such order attains finality as provided by Section 24. The Act provides only one appeal against the substantive or final order and no further appeal. When the order made by the District Forum, the State Commission or the National Commission, as the case may be, attains finality, the order has to be complied with by a party against whom an order has been made. If compliance of the order is not made, the order has to be executed in a manner provided in Section 25 as a decree in the suit. The other provision to execute the order is provided in Section 27 which is a penal provision. If a person against whom a complaint is made or the. complaint fails or omits to comply with the order of the District Forum, State Commission or the National Commission as the case may be he is liable for punishment as provided in Section 27.

THE true purpose and scope of Section 27 of the Act is that it casts a statutory duty against a person against whom the order is made by the Redressal Agencies to comply with the order expeditiously, failing which the Redressal Agencies have to enforce compliance of the order by punishing such person under the conferred sentence of imprisonment and fine or with both. Keeping in mind the object of the Act, and from the scheme of the relevant provisions, it is clear that proceedings under Section 25 or 27 of the Act are in the nature of execution proceedings. Any order passed in these proceedings is not a final or substantive order. Finality to orders passed by the Redressal Agencies is provided in Section 24 of the Act. THE orders passed in the proceedings under Sections 25 or 27 can also not termed as the orders arising out of original proceedings, that is when the lis of the consumer disputes commences. Besides, if by process of interpretation of the words "any person aggrieved" by "of an order" used in Sections 15, 19 and 23 are interpreted so as to mean creating a right of appeal against the orders passed under Sections 25 or 27, that would mean creating the provision of appeal in the Act which the Parliament has not made with a clear purpose. THE very purpose of the Act and its rules, is to provide for better protection to the consumers, as has been spelled out in this preamble and for the settlement of consumer disputes with particular emphasis on a summary disposal. If the appeal is found to be maintainable that would frustrate the purpose of the Act. It would not only defeat the purpose, but the consumer or the person in whose favour the order has been made will have to face another chain of litigation going through the lethargy and lengthy process defeating the purpose of the Act. This Commission in case of Jamica Gas Company v. Ku. Pravin Bhagwat, I (1995) CPJ 58, has taken the view that no appeal lies against an order passed under Section 25 and/or 27 of the Act, as the proceedings under the two provisions are in the nature of execution proceedings.

The Haryana State Consumer Disputes Redressal Commission in case of Kohinoor Carpets, Panipat & Ors. v. Mr. Rajinder Arora (supra), considered the question in details. After considering the preamble and scheme of the Act, the State Commission took the view that the right of appeal is a pure creature of the statute. There is no inherent or natural right to a first appeal. If the Parliament in its wisdom does not provide any appeal from an order, it cannot be created on the ground that such an order is onerous in nature. The best Judge for the provision of the substantive right of appeal is the Legislature and not the Courts on any grounds of compassion or sentiment. It was further held that the order under section cannot be made appealable by interpretation on the ground of the rigour and onerousness of the penalties imposable under the said section.

THE decision in case of Kohinoor Carpets, Panipat & Ors. v. Mr. Rajinder Arora (supra), was followed in Mahabir Singh Deswal v. M/s. Arora Handloom Store, II (1993) CPJ 640 (Haryana SCDRC), Tarsem Lal Goyal v. Union of India and Ors. (supra), M/s. Agrawal Sales Corporation v. Jagdish Prasad Vyas (supra), Mrs. Suman Lata v. M/s. Anand Construction (Delhi) Pvt. Ltd. & Another, 1993 (1) CPR 352 (Delhi SCDRC), C.R. Kataria v. THE Consumer Disputes Redressal District Forum, Patiala & Others (supra), M/s. Shanghai & Co. and Ors. v. Bina Kandi, 1996 (1) CPR 373 (West Bengal SCDRC), M/s. Ambassy Dry Cleaners & Finishers v. Manik Chand Agrawal, III (1993) CPJ 1586, M/s Rajani Gas Company v. V.P. Jawalekar, II (1992) CPJ 786 (Maharashtra SCDRC). The decision of Allahabad High Court in Anil Sethi''s case (supra), a case, where against the final order Insurance Company filed the appeal. In that interim order was passed. The District Forum issued a show-cause notice under Section 27 to the petitioner Bank in execution proceedings in respect of the non-compliance of the main order. The Allahabad High Court in that context after interpreting the words "any aggrieved person" by "an order" has observed that it obviously refers to the orders which are made subject matter of challenges on the grounds that the affected persons feel aggrieved. To hold otherwise would result in duplicity of proceedings. It would be anomalous to hold that while on the one hand the matter has been stayed by the superior Commission while a third party to the proceedings is made answerable concerning certain direction in execution of the said main order, then why the petitioner shall not have a right of appeal. We respectfully submit that the view of the Allahabad High Court is not that if a person against whom, an order has been made by the District Forum, State Commission or the National Commission as the case may be fails or omits to comply with the order and proceedings under Section 27 of the Act are initiated against such person and after hearing such person the order is passed under Section 27 of the Act, such person will have right of appeal against that order. If the decision is considered giving a right of appeal that would mean giving a right of second appeal against the order which has already attained finality under Section 24 of the Act.

AS an upshot, we respectfully agree with the view taken by Haryana State Consumer Disputes Redressal Commission in case of Kohinoor Carpets, Panipat & Ors. (supra) and the decisions of State Commission referred in paras 13 and 15 and hold that no appeal lies under Section 15 against an order passed by the District Forum in a proceeding under Section 27 of the Act. It takes us to the prayer of Mr. V.K. Nayak, learned Counsel for the appellant to treat this appeal as revision. If an appropriate case is made out as envisaged by Section 17(b) against an order made under Section 25 or 27 of the Act, such an order certainly can be challenged by invoking revisional jurisdiction of the State Commission. In the result, this appeal has to be dismissed as not maintainable. However the appellant''s prayer to convert this appeal as revision is allowed. Appeal be struck off from the register of appeals and the case be registered as revision. Appeal dismissed.