RAM DEV vs D.N.PANDEY

THIS is an application for substitution on behalf of the proposed heirs of Ram Dev, complainant who died on 30.1.1996. It has been alleged in the application that as complainant has died, his name may be deleted from the array of parties and the proposed legal heirs of the deceased be allowed to be incorporated. The application is opposed. In the objections it has been alleged by the opposite party that there is no provision under the Consumer Protection Act for substitution of the legal representatives in a pending case. Therefore, application filed for substitution is liable to be rejected. It is further alleged that the complaint will be deemed to have been abetted as the application for substitution has not been made within the prescribed time of limitation.

WE have heard learned Counsel for the parties. Learned Counsel for the opposite party has argued that in the complaint case if the complainant dies, the substitution cannot be permitted as the Consumer Protection Act has not provided for substitution in place of a deceased complainant. On the other hand, it has been argued by the learned Counsel on behalf of the complainant''s heirs that substitution application can be moved under the General provisions.

No doubt there is no provision under the Consumer Protection Act for covering such contingencies as to what will happen if a complainant or the opposite party dies. It should be recalled that the Act has been enacted for the welfare of the consumers and to protect their interests from the negligent service or defective service rendered by a manufacturer or a dealer. The aim of the Act is to safeguard the interest of the consumer. It is a short Act and cannot provide all the contingencies for which provisions should have been made. Therefore, we have to see how best the interest of justice can be advanced in favour of a party if he is aggrieved of defective service. Every Tribunal has anicilliary powers and it can utilise those ancilliary and inherent powers to rectify the injustice to the consumer. Therefore in view of these facts the Consumer Protection Act is to be interpreted in order to advance justice and to do complete justice between the parties. The technicalities of law should not be an impediment in the relief to be granted to a party if the justice so requires.

LEARNED Counsel for the opposite party has placed reliance on the case of Apex Court, Jyotsna Arvind Kumar Shah & Ors. v. Bombay Hospital Trust, III (1999) CPJ 1 (SC)=VII (1999) SLT 146=(1999) 4 Supreme Court Cases 325. In this case the Hon''ble Supreme Court has held that an ex parte decree passed after a reasoned ex parte order has been passed by the Commission cannot be set aside because there is no provision to do so under the Consumer Protection Act. Rules 7(8) of the rules framed by the U.P. State under the Consumer Protection Act provides that if the opposite party or its authorised agent fails to appear on the date of hearing, the State Commission will decide the complaint ex parte. Similarly Sub-rule 6 of Rule 8 provides the same power to decide the matter ex parte on merits if the respondent or his authorised representative fails to appear on the date fixed, but this rule does not provide for dismissal of a complaint or an appeal when the complainant or the appellant fails to appear. Thus on the basis of this specific provision which has been incorporated in these two rules, the Hon''ble Supreme Court has taken a view that when the District Forum or the Commission has been specifically given powers to decide a case ex parte as these rules have not been provided to set aside an ex parte decree passed on merits, therefore, it can be said that no specific power has been conferred to set aside the ex parte order passed on merits, the District Forum or the Commission cannot exercise those powers. Therefore, when in the present case no provision has been made for abatement of a complaint or substitution in place of a deceased complainant or appellant, that power can be exercised to cover such contingencies. Therefore, if the provision of abatement is to be followed, then the necessary powers to allow substitution will also have to be considered. If the provisions of abatement have been provided under the provisions of Civil Procedure Code and hence the power to allow substitution can be exercised under the ancilliary powers. If a defective fridge, washing machine or any other item develops certain manufacturing defects within the period of warranty and if the complainant, after filing the complaint dies, then it cannot be said that the legal representatives, who are using that product after the death of the deceased cannot continue those proceedings to a logical end; otherwise great injustice will be done to a consumer. If the application for substitution is not allowed, then the legal representative will be forced to pay from their own pocket for the manufacturing defect which has occurred in the product supplied. It could not have been the intention of the Legislature that if a complainant or an appellant dies without getting the adequate relief in respect of the defective items, the legal representatives will become helpless. An ex parte decree passed by the District Forum or the State Commission or the National Commission can be set aside on sufficient grounds being shown, by the higher authorities, and in that case no injustice will be done to the person, whether he is complainant or appellant, who was absent on the date fixed and an ex parte order on merits has been passed. In order to avoid this hardship which has been caused to surviving legal representative of the deceased, no provision has been made in the Consumer Protection Act to cover such a contingency. Thus in view of ancilliary powers vested in the Authority, the Authority has the power to order if a plea of abatement has been taken by the other side to allow substitution to be done under the ancilliary powers vested in Tribunal or Authority. The natural justice demands that in such contingencies where there is no specific provision to cover such instances, the Authorities have a right to pass suitable orders for redressal of the grievance for which a complaint or an appeal has been filed. Thus there is no bar under the provisions of the Consumer Protection Act to allow application for substitution. In the case of M/s. Cosmopolitan Hospital & Ors. v. Smt. Vasantha P. Nair & Ors., I (1992) CPJ 302 (NC)=1992 (1) CPR 820, it was decided by the National Commission that the legal representative of a deceased by operation of law, gets clothed with the rights, status, personalities of the deceased for the purpose of enforcing the cause of action which has devolved on him. It was further held that the extended meaning to the express "consumer" will cover the legal representatives of the deceased also. Thus when the Commission has considered this aspect of the matter, it cannot be said that the legal representatives of a deceased complainant have no right to continue the legal proceedings commended by a deceased complainant or an appellant. On the other hand learned Counsel for the opposite party has placed reliance on the case of Mrs. Hemlatha Saptharishi & Ors. v. Indian Oil Corporation Limited, III (1998) CPJ 533. In this case it was held by State Commission, Tamil Nadu that there is no provision in the Consumer Protection Act enabling a legal representative to continue the proceedings when the consumer dies after filing the complaint. In view of the case of National Commission cited in the foregoing paragraph, we do not agree with the reasons given in the judgment for not following the judgment of the National Commission. A broad view has to be taken in such cases where the interest of the consumer is involved and needs to be protected from the mighty manufacturers.

THUS we come to the conclusion that the application for substitution of a deceased complainant or appellant can be moved by legal representatives and they can continue the proceedings which has been already initiated and the State Commission under an ancilliary power can allow substitution application. The application for substitution is allowed and the objection is dismissed. This is an application for appointment of guardian of minor legal representatives who are under the age of 18 years and have not attained the age of majority. As the minors cannot represent their interest by themselves, therefore, a guardian is required and the best guardian available to look after their interest is their mother Smt. Dayawati who is appointed guardian of the deceased''s legal representatives namely Jagdish Prasad, Ram Roop, Ram Karan, Nankan Prasad. Let substitution be incorporated within a period of one week from the date of service of this order. Application allowed.