NELSON HIGHER SECONDARY SCHOOL vs CONSUMER EDUCATION And RESEARCH SOCIETY

THE appellant was the opposite party before the State Commission, where the respondent has filed a complaint alleging deficiency in service resulting the death of one of the students in appellant school.

THE admitted facts of the case are that on 26.10.1993 as part of the educational excursion, the appellant school organised a picnic for students. THE picnic party reached the picnic spot at 10.30 a.m., and one of the students, Sabir was drowned. It is in these circumstances that a complaint alleging deficiency in service on the part of the school, was filed before the State Commission, who after hearing the parties, allowed the complaint and directed the appellant to pay a compensation of Rs. 4,10,000/- with interest @ 6% p.a. out of which Rs. 10,000/- was to be paid by the Insurance Company, rest was to be paid by the appellant school and its Principal. Aggrieved by this order, this appeal has been filed. A preliminary point was brought in for discussion. The plea of the appellant school is that they had engaged a lawyer Mr. M.A. Bhatt, whose licence to practice was suspended by an order dated 29.9.1999, of Bar Council of Gujarat, for a period of 3 years and thus debarring him from practising as an advocate for the period. Thus, he could not present the case of the appellant. The said Counsel did not inform the appellant about the said fact and in fact, he arranged for some other Counsel to present the appellant''s case without consulting the appellant and also without getting any Vakalatnama in his favour from the appellant. It is in these circumstances that the complainant witness could not be cross-examined by any of the authorised Advocates of the appellant as also the fact that the two witnesses whose affidavits had been filed by the appellant could not be produced before the State Commission for cross-examination from which an adverse inference was drawn by the State Commission by stating "it may be noted that the opponents had filed two affidavits of the teachers...but none of them was presented for cross-examination". It is in these circumstances the appellant prays for an opportunity to be heard on merit as well as get an opportunity to cross-examine the witness of complainant as also present their witnesses for cross-examinations. This plea was vehemently opposed by the learned Counsel for the respondent/complainant by stating that as the record shows that they had been given all the opportunity to present their witnesses. This should be deemed a lap on the part of the appellant school to be not pursuing the progress of their case. A perusal of order sheet of the State Commission clearly states that "parties were heard and only after that the order was passed".

We had perused the material on record and there is no disputing the fact that the appellant is a school and there is no disputing the fact that the child had died at the time of picnic organised by the appellant school. But the basic flaw in our view still remains is the fact, that the authorised representative (Counsel) was barred from appearing for a period of 3 years effective from 29.9.1999. The appellant could not have been adequately represented before the State Commission. If any one else was present, it is not brought on record as to whether he was the authorised representative/Counsel of the appellants. We have carefully gone through the order sheet of the State Commission and find that no where it is mentioned that the case of the appellant was represented by any authorised Counsel. The fact of not informing the appellant by Mr. Bhatt about his suspension and asking the appellant to engage another Counsel is a separate issue, which will amount to deficiency in service which the appellant is well advised to proceed separately but this has not come in the way of us compromising the principle of natural justice, on which the whole Consumer Protection Act is based, which require that both the parties should get an opportunity to present the case adequately before the appropriate Forum. In this case, clearly, the cross-examination of the complainants witness was not done by the Advocate authorised by the appellant as also the fact that despite two affidavits of the teachers having been filed they could not be produced for cross-examination. In our view, the ends of justice would be met if the case is remanded back to the State Commission to give an opportunity to the authorised Counsel of the appellant to cross-examine the complainant''s witness, are also cross-examination of appellant''s two witnesses by the complainant. We order accordingly. The case is remanded back to the State Commission with the above direction. In view of the sensitivity of the case we suggest to the State Commission that this case be dealt on an urgent basis say in the next 4 months from the date of passing of this order, after giving notice to both the parties for hearing as per law. It must be made clear that we are not going into the merits of the case. The appeal is allowed in above terms. Appeal allowed.