VISHWA PRAKASH vs RAJU JOSEPH

THIS is a complainant''s revision under Section 17(1)(b) of the Consumer Protection Act, 1986 (for short the ''Act'') against the order dated 5.5.1998 passed in Case No. 90/93 by the District Consumer Disputes Redressal Forum, Durg (for short the ''District Forum'').

FACTS giving rise to this revision are that the complainant filed a complaint before the Forum on 25.9.1993 against the opposite party alleging deficiency in service on the basis of agreement for construction of the house. The complaint resisted on merits as well as on legal grounds. It was contended that the agreement contains an Arbitration Clause No. 31, therefore, complaint is not maintainable. The President of the District Forum by his opinion dated 15.3.1994 dismissed the complaint holding that in view of the arbitration clause the Consumer FORA has no jurisdiction to adjudicate the complaint. The . learned Members did not agree with the opinion of the President by their separate opinion. The complainant aggrieved of the order of the President filed an Appeal No. 143 of 1994 which was dismissed as not pressed on the statement made by the Counsel for complainant that the complainant will file an application before the District Forum for continuing with the proceedings in view of the majority opinion. The complainant filed the application on 26.8.1994 before the District Forum which was dismissed by the Forum holding that the order dated 5.5.1998 cannot be recalled as there is no power of review under the Act, hence, this revision. Learned Counsel for applicant submits that the President of the District Forum has conducted the proceedings in breach of mandated provisions of Sub-sections 2 and 2(A) of Section 14 as in view of the majority opinion the District Forum ought to have proceeded with the case to decide it on merits. It was also submitted that in view of Section 3 of the Act Arbitration Clause does not bar the jurisdiction of the Consumer Forum, Counsel cited a decision of Supreme Court in Fair Air Engineers Pvt. Ltd. & Anr. v. N.K. Modi, III (1996) CPJ 1 (SC) and a decision of National Commission Commercial Officer of the Telecom, District Manager, Patna v. Bihar State Ware Housing Corporation, I (1991) CPJ 42 (NC).

After hearing Counsel and on perusal of the record, we are of the opinion that the order of the District Forum cannot be sustained as the District Forum failed to exercise a jurisdiction vested in it by law. Section 3 of the Act envisages that the provisions of the Act are in addition and not in derogation of the provisions of any other law for the time being in force. The Supreme Court in case of Fair Air Engineers Pvt. Ltd. & Anr. v. N.K. Modi (supra) case where an application was filed under Section 34 of the Arbitration Act after considering the scheme and purpose of the Act observed in paras 13 and 14 thus : "13. Accordingly, it must be held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Mr. Suri, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well-founded. The Parliament is aware of the provisions of the Arbitration Act and the Contract Act and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent Court of civil jurisdiction. Nonetheless, the Act provides the additional remedy. 14. It would, therefore, be clear that the Legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these Forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties the reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the Forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate Forum for adjudication of the disputes would be otherwise those given in the Act."

THE National Commission in case of Commercial Officer, Office of the Telecom District Manager, Patna v. Bihar State Ware Housing Corporation (supra) observed that the existence of a remedy by way of arbitration, even assuming for the purpose of discussion in Section 9-B of the Indian Telegraphs Act covers the case, which in our view, is extremely doubtful, does not preclude an aggrieved consumer from seeking redressal before the Forum constituted under the Act which is specific purpose of providing a speedy, cheap and efficacious remedy to a consumer before the special Forums created for that purpose. The National Commission in a recent case in Udaipur Cement Works v. Punjab Water Supply and Sewerage Board, I (1999) CPJ 67 (NC)=1999 (1) CON.LT 602, observed that the contention that there was an arbitration clause in the confirmation letter Sent by them and, therefore, the respondent should have taken recourse to arbitration rather than filing a complaint in a Consumer Disputes Redressal Forum cannot be accepted. Merely existence of an arbitration clause should not come in the way of an aggrieved party from seeking legitimate relief under the Consumer Protection Act, which is a special piece of legislation to protect the interest of the consumers notwithstanding the other laws in force.

THEREFORE, the order of the President of the District Forum dated 5.5.1998 cannot be sustained. Accordingly, in view of the majority opinion, the District Forum ought to have proceeded with the case for deciding the complaint on merits. As a consequence of this order dated 15.3.1994 is set aside and the case is sent back to the District Forum for deciding the complaint afresh in accordance with law within 90 days from the date of appearance of the parties. The applicant shall appear before the District Forum shall issue notice to the non- applicant/opposite parties as they did not appear in the case after notice. In the result, the revision is allowed. The order of the District Forum is set aside with no order as to costs. A copy of this order be conveyed to the parties and a copy be sent to the District Forum alongwith the record of the case. Revision allowed.