PREM NATH HOSPITAL vs POONAM MANGLA

PREM Nath Hosptial, Gurgaon-opposite party in the complaint filed by Smt. Poonam Mangla has filed the present revision petition for quashing the proceedings allegedly conducted by the learned President of the District Forum sitting singly i.e., without the junction of the other two Hon''ble Members of the Forum. In order to substantiate his submission, the authorised rep resentative of the revision petitioner has placed on record the copies of all the interim orders passed by the learned President of the District Forum, Gurgaon starting from the very first date of hearinhg i.e., 22nd of June, 1993 onwards. From a perusal of these proceedings, the submission of the revision petitioner did not automatically get substantiated, inasmuch as, it was not clear as to whether actual proceedings of the complaint were conducted by the learned President of the District Forum sitting singly or proceedings had been conducted with the junction of one or two Hon''ble Members of the District Forum and only the short orders (minutes of the interim proceedings) were signed by the President alone. Faced with this, the authorised representative of the petitioner provided before us the orders passed by the Hon''ble National Commission in number of other cases, including the revision petitioner i.e., Revision Petition No. 894 of 1994, Dr. PREM Nath v. Union of India & Another, decided on 18th of July, 1995, in which the Hon''ble National Commission had set aside the orders passed by the then President of this Commission sitting singly. The orders of the Hon''ble National Commission reads as under : "The impugned orders passed in these cases have to be set aside on the short ground that they have been passed by the President of the State Commission sitting singly without the junction of any other Member as is mandatorily required under the provisions of the Act. The Revision Petitions are accordingly allowed and the orders of the State Commission are set aside."

ON the other hand, Mr. Harsh Aggarwal, learned Counsel for the complainant-respondent has submitted that in fact the proceedings had been conducted by the learned President of the District Forum with the junction of one or two Hon''ble Members and if the interim orders had been signed by the President of the District Forum alone, that was no violation of any statutory provision. In order to ascertain the exact factual position with regard to the proceeding''s conducted by the learned District Forum, we sent for the original records of the case as also report of the learned President of the District Forum. So far as the records are concerned, the minutes of the various proceedings of the case are no doubt signed by the President, but from that it cannot be inferred that the other Hon''ble Members of the Forum were not present when those proceedings were conducted. However, the report of the learned President of the District Forum is reproduced below : "The entire proceedings in case CPA No. 354 of 22.6.93, Poonam Mangla v. M/s. Prem Nath Hospital, have been conducted in the presence of Members or one of the Members. However, the signatures of the Members are obtained whenever any effective or contested interim order is passed. In this case two contested interim orders were passed-one on 25.8.94and the other on 21.8.95 and besides the signatures of the undersigned the signatures of one Member are also there. The signature of Ajay Mangla witness was also recorded in the presence of the Members but the signatures of the Members were not obtained."

After hearing the learned Counsel for the parties and having gone through the records, we consider it necessary to have a closure look a t the relevant statutory provisions contained in the Consumer Protection Act. Section 11 of the Act provides for the monetary and territorial jurisdiction of the District Forum, before whom a complaint can be instituted. Section 12 provides the manner in which the complaint can be made to the District Forum and Section 13 deals with the procedure to be adopted when the complaint is received by the District Forum. Elaborate procedure has been detailed in Section 13 right from the serving of the copy of the complaint on the opposite party, obtaining their reply, summoning and enforcing the attendance of the opposite party and witnesses, requisitioning the reports of the analysis and tests of the goods where ever necessary and the reception of evidence on affidavit and issuing of any commission for examination of witnesses etc. It has been specifically provided in Sub-section (5) of this section, that all these proceedings shall be deemed to be judicial proceedings. After all these proceedings have been conducted and the trial of the complaint has been completed, Section 14 provides, for the decision of the complaint by recording the finding by the District Forum. That is why Section 14 of the Act starts as under : 14(1) "If, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or or it shall issue an order to the opposite party directing him to do one or more of the following things, namely: (a) to remove the defect pointed out by the appropriate laboratory from the goods in question; (b) to replace the goods with new goods of similar description which shall be free from any defect: (i) to provide for adequate costs to parties." It is at this stage that the Legislature has provided as under: "14(2) Every proceedings 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 proceedings de novo. 14(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 proceedings : 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. 14(3) Subject to the foregoing provisions, the procedure relating to the conduct of the meetings of the District Forum, its sittings and other matters shall be such as may be prescribed by the State Government."

For the purpose of Section 14(3) as reproduced above, the statutory rules have been framed under Section 30(2) of the Act by the State of Haryana, namely Haryana Consumer Protection Rules, 1988, Rule 4 whereof, which is the only relevant rule for this purpose, is reproduced as under: " 4. Place of sitting and other matters relating to District Forum : Section 14(3)(1)- The office of the District Forum shall be located at the headquarter of the District. The State Government may enlarge the jurisdiction of District Forum by way of setting up of such Forums at divisional levels or a Forum for 3 to 4 Districts or may set up a District Forum for every District.

(2). The working days and the office hours of the District Forum shall be the same as that of the State Government. (3) The official seal and emblem of the District Forum be as follows : The President, Consumer Disputes Redressal Forum .. (4) Sitting of the District Forum, as and when necessary, shall be convened by the President. (5) No act or proceeding of the District Forum shall be invalid by reason only of the existence of any vacancy among its Members or any defect in its constitution.

(6) The President and the other Members of the District Forums shall be entitled to such subordinate staff to assist the District Forum in its day to day work and perform such other functions as are provided under these rules, or assigned to it by the President which is admissible to a District Judge and other Judicial Members of the District. The salary payable to such staff shall be defrayed out of the head "2408-Food Storage and Warehousing (Field Staff)".

(7) Where the opposite party admits the allegation made by the complainant the District Forum shall decide the complaint on the basis of the merit of the case and documents present before it. (8) If during the proceedings conducted under Section 13, District Forum fixes a date for hearing of the parties, it shall be obligatory on the complainant and opposite party or its authorised agents to appear before the District Forum on such date of hearing or any other date to which hearing could be adjourned, where the complainant or his authorised agent fails to appear before the District Forum on such day, the District Forum may in its discretion either dismiss the complaint for default or decide it on merits. Where the opposite party or its authorised agent fails to appear on the day of hearing, the District Forum may decide the complaint ex-parte.

(9) While proceeding under Sub-rule (8), the District Forum may on such terms as it may think fit and at any stage, adjourn the hearing of the complaint but not more than one adjournment shall ordinarily be given and the complaint should be decided within 90 days from the date of notice received by the opposite party where complaint does not require analysis or testing of the goods and within 150 days if it requires analysis or testing of the goods. (10) Orders of the District Forum shall be signed and dated by the Members of the District Forum constituting the Bench and shall be communicated to the parties free of charge."

FROM a perusal of the aforesaid statutory provisions contained in the Consumer Protection Act and the Rules made thereunder by the State of Haryana, it is evident that mandate of the Legislature at both the stages i.e., while enacting the principal legislation as well as while framing subordinate legislation, has been to ensure that no proceeding whatsoever should be conducted by the District Forum under Section 14 by the President of the District Forum sitting singly i.e., without the junction of one or two Members of the District Forum. This is precisely what has been held by the Hon''ble National Commission while deciding the aforesaid revision petition, which is reproduced above. Therefore, from a harmonious reading of the provisions contained in Sections 13 and 14 of the Consumer Protection Act as well as the Rules made thereunder, shows that it is only the proceedings under Section 14, which are mandatory required to be conducted by the junction of atleast one other Member and not proceedings, which are preliminary in nature, as referred to, of Section 13 of the Act. On the parity of reasoning the orders which are required to be signed by the President and other Members attending the proceedings are also only those orders which are referable and are required to be passed while attending'' the proceedings under Section 14, meaning thereby the short orders like granting of adjournments or summoning of records and issuing notices to the witnesses etc., which are not final in nature, are not required to be signed by all the Members attending the proceedings. The intention of the Legislature has been made sufficiently clear by enacting Sub-sections (2-A) and (3) of Section 14 of the Act and Sub-rule (10) of Rule 4 of the Haryana Consumer Protection Rules, 1988 made thereunder. In view of the aforesaid statutory provisions and the factual position stated by the learned President of the District Forum, we find that the proceedings in the present case were conducted by the learned President of the District Forum with the junction of one or two other Members of the District Forum as is mandatory required under the provisions of the Act and so held by the Hon''ble National Commission. Consequently, the revision petition, which is devoid of force stands dismissed with no order as to costs. The parties through their learned Counsel as well as authorised representative are directed to appear before the District Forum, Gurgaon on 23rd of August, 1996. Revision Petition dismissed.