GUPTA TEXTILE MILLS vs Oriental Insurance Co. Ltd.

WHILE deciding four complaints bearing Nos. 52 to 55 of 2000 filed by M/s. Gupta Textile Mills v. Oriental Insurance Company Limited, by one common order dated 30.10.2003, the President of the District Forum, Sonepat had accepted the complaints. The other two Members of the District Forum as per common order dated 31.10.2003 had differed with the decision of the President of the District Forum by coming to the conclusion that the complicated questions of fact and law are involved in these complaints and further voluminous nature of evidence would be required to decide the dispute raised which cannot be decided in a summary jurisdiction of the District Forum and for that reason dismissed the complaints giving liberty to the complainants in all these cases to approach the Civil Court for the appropriate reliefs. Against these orders, above mentioned four appeals have been filed which are being disposed of by this common order.

THE complainants in all these four cases sent 1200 mosquito nets in 60 bales against cover note No. 2861, 2450 mosquito nets against cover note No. 2859, 1650 mosquito nets against cover note No. 2860 and 1000 mosquito nets against cover note No. 2862 of the value of Rs. 4,89,210, Rs. 9,98,816, Rs. 6,72,672 and Rs. 78,400 respectively to the consignee detailed in the complaints from Gohana to destinations namely Rourkela, Dhanbad, Durg and Mukameghat through Railways. THEse goods were insured under Marine policy with the opposite party covering risk from stage of despatch to the stage of delivery. At the time of delivery after taking consignment, the consignee found mosquito nets damaged as detailed in these complaints. THE total loss amounts come to be Rs. 2,44,608, Rs. 93264, Rs. 5,13,520 and Rs. 22,344 in respect of the above stated four consignments respectively. THE damage was immediately reported to the opposite party by the complainants but finding no response from them, the present complaints were instituted by the complainants for awarding them claimed amount to the extent of actual loss/damage caused to these goods along with interest @ 24% per annum from the dates of consignments mentioned in the complaints, besides compensation of Rs. 50,000 each on account of mental agony and harassment faced by them. The complaints were contested by the opposite parties primarily on the ground that no loss report was sent to them within the stipulated period as per terms of the policies issued. They also raised objection that the complainants had not lodged any claim with the railway authorities and even no notice for the loss caused had been served upon them and for that reason they are not liable to reimburse the loss or damage caused to the goods. Their other objection was that in these complaints the company had received the intimation from the consignee regarding the loss or damage to the goods on 14.10.1998, 17.11.1998, 29.1.1999 and 14.1.1998 but intimation in this regard was given to the opposite party on 1.3.1999 whereas as per terms and conditions of the policy, the loss was required to be reported to the company immediately. Thus, they maintained that there was no deficiency of service on their part and for that reason prayed for the dismissal of the complaint.

The President of the District Forum taking into consideration the rival stands of the parties taken in the pleadings and evidence adduced on record, accepted the complaints and directed the opposite parties to make the payment of Rs. 2,40,000 in Complaint Case No. 52 of 24.3.2000, Rs. 93,000 in Complaint Case No. 53 of 24.3.2000, Rs. 5,00,000 in Complaint Case No. 54 of 24.3.2000 and Rs. 22,300 against Complaint Case No. 55 of 24.3.2000. The other two Members as already noticed differed with the view taken by the President and while dismissing the complaints gave liberty to the complainants to approach the Civil Court for the redressal of their grievance. It is against these orders, the present appeals have been filed by the appellant-complainants.

THE learned Counsel representing the parties have been heard at length. At the threshold of the arguments, it has been contended by the learned Counsel representing the appellants that while passing the order dated 30.10.2003 by the President and order dated 31.10.2003 by other two Members being of different dates are in violation of provisions of Section 14(2A) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act, 1986) and for that reason the order be set aside and case be remanded to the District Forum to decide the matter afresh. In view of the above stated factual position, the learned Counsel representing the respondents could not controvert the submissions made by the learned Counsel for the appellants and rather agreed for the remand of the cases.

IN order to decide the issue raised, notice has to be taken of the provisions of Section 14(2A) of the Act, 1986 which states as under: "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 the opinion of the majority shall be the order of the District Forum."

The order dated 23.10.2003 recorded on the file reveals that the Counsel representing both the parties were present and arguments were heard by the President, District Forum, Sonepat sitting alone and after hearing the arguments the case was posted for orders on 30.10.2003. On that day the order on the file records "vide separate detailed order of even date, the present complaint stands accepted. File be consigned after due compliance." This order was announced in open Court and is signed singly by the President. Same is the position in all the remaining three cases as per orders on the file. These orders reveal that there has been violation of the provisions of Section 14(2) of the Act, 1986. It has been provided in Section 14(2) of the Act, 1986 that "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." It is further provided that where a member for any reason, is unable to conduct a proceeding till it is completed, the President and then other member shall continue the proceeding from the stage at which it was last heard by the previous member. IN these cases, as presence of other two Members have not been recorded in the orders when the arguments were heard in each of these cases on 23.10.2003, it has to be held that the procedure adopted by the President in hearing the arguments sitting singly is against the above mentioned mandatory provisions. Even on the day when the order was pronounced on 30.10.2003 the presence of the other Members have not been recorded in the zimini orders. Surprisingly, other two Members have passed separate order dated 31.10.2003 despite the fact that there is no mention in the order recorded as to whether they have heard the Counsel representing the parties before proceeding to record the order dated 31.10.2003 and without hearing the Counsel for the parties it is not explainable as to how they had passed the order dated 31.10.2003. The fact remains that the order dated 31.10.2003 passed by both the members totally differ with the order dated 30.10.2003 passed by the President. It is clearly spelt out from the above noted circumstances that the procedure followed by the District Forum is against the accepted norms of procedure because no jurisdiction is vested with the Members or even with the President to pass different orders on different dates convenient to them. Rather the provisions of Section 14(2A) require that orders have to be passed in the complaint on the same day and simultaneously. Where there is a difference of opinion between the President and other two Members, no doubt, the order passed by the majority, out of the three including the President and other two Members, shall prevail. But in these cases, it is manifestly brought out on record that not only maintaining sancity of the record has been given a burial in these cases but judicial norms required have been thrown to winds. Under the circumstances of the case, we have been left with no other alternative but to hold that the orders passed by the President and Members being patently illegal and against the provisions of Section 14(2A) of the Act, 1986 are consequently set aside and the cases are remitted back to the District Forum, Sonepat for deciding the complaints afresh in accordance with law keeping in view the provisions of Section 14(2A) of the Act, 1986. Before parting with the order, in fairness to the learned Counsel for the appellants, he also brought to our notice extraordinary procedure adopted by the President of the District Forum, Sonepat because after the order dated 31.10.2003 was passed by the other two Members of the District Forum, Sonepat, the President of the District Forum chose to append a separate note on 31.10.2003, which reads as under: "The four files were entrusted to the Superintendent of this office to hand over to Mrs. Sunita Gehlawat and Sh. Suresh Rana, Hon''ble Members for agreeing or disagreeing with the order of the President. On the first date i.e., on 30.10.2003, the members specially Mrs. Sunita Gehlawat returned the file with the assurance that she will sign the order on the following day which was dittoed by the second Member. Next day when she arrived, the files were again put up before her for signing. After reading the files again, she went to the Bar Association and sought the help of certain lawyers, perhaps the opposite Counsel and got the note handwritten on a paper which she dictated to the steno-typist of this office with a dissenting note. This way Mrs. Sunita Gehlawat not only lost all the norms of decency but also swept away secrecy of this office against the circular issued by Hon''ble State Commission, Haryana, Chandigarh for extraneous reasons best known to her."

The above note of the President to say least has caused us anguish because he has caused aspersions and made insinuation against the Member - Mrs. Sunita Gehlawat. The President to exercise restrain so that sanctity of the functioning of the District Forum is maintained. Ordered accordingly.