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Judgment
AUTHORIZED representative of the petitioner had filed an early hearing application pursuant to which the matter was heard on admission. The authorized representative-cum-power of attorney of the Petitioner submitted before us that in view of special power of attorney held by him, he was entitled to file his affidavit evidence on behalf of the petitioner and in this connection, he has drawn our attention to the judgment of this Commission in the matter of Authorized Representative of the Parties and Voluntary Organizations in R.P. No. 1017 of 2002 and connected revisions decided on 2.1.2003. He has also drawn our attention to "Executive under power of attorney", which reads as under: "The donee of a power of attorney may if he thinks fit executive or do any instrument or thing in and with his own name and signature and own seal where sealing is required by the authority of the donor of the power and every instrument and thing so executed and done shall be as effectual in law as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof.
HE, therefore, submits that the order of the State Commission where it has been stated that his affidavit cannot be read into evidence is required to be set aside and the matter be remanded to the State Commission.
WE have gone through the record of the revision as also the impugned order, which is subject matter of challenge in this revision. The dispute relates to overhauling of the account of the petitioner for the period 10/2000 to 12/2003 in relation to the electric connection used for running poultry unit. Besides other pleas, the respondent had contended that the electric connection was for commercial purpose and the petitioner does not fall within the definition of consumer. The complaint was dismissed by the District Forum against which appeal was filed which was dismissed by impugned order.
THE State Commission examined the matter and found that the authorized representative was not attorney of the petitioner when the account of the petitioner was overhauled and he had no knowledge regarding the same. It was further held that the authorized representative was appointed as special power of attorney by the petitioner on 26.8.2004. In this context, affidavit evidence tendered by the authorized representative/power of attorney was examined by the State Examination with reference to rulings.
ADMITTEDLY, the affidavit evidence which has been filed is that of the authorized representative/power of attorney. The question therefore iswhether the authorized representative/power of attorney can himself depose on behalf of the petitioner without examining any partner of the petitioner firm. The State Commission has examined the matter with reference to the rulings of High Courts and Apex Court, which are mentioned in the impugned order, and the said rulings have been pronounced after taking into consideration Order 3 Rules 1and 2 CPC. The State Commission has referred to the views of the Hon''ble Supreme Court in Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors., VII (2004) SLT 441=I (2005) BC 399 (SC)=(2005) 2 SCC 217.
THE petitioner has placed reliance on judgment of this Commission dated 2.1.2003 in the matter of Authorized Representative of the Parties and Voluntary Organisations in R.P. No.1017/2002 and connected revisions. In that case, the issue before the Tamil Nadu State Commission was right of audience of authorized representative. The State Commission came to the conclusion that Consumer Protection Act, 1986 does not give the right of audience either to the voluntary organizations registered under the provisions of the Companies Act, 1956 or any other law for the time being in force or in favour of authorized agents either for complainant or for opposite party. In the said judgment, this Commission had referred to the judgment of the Bombay High Court in case of Sanjay R. Kothari and Anr. v. The South-Mumbai Consumer Disputes Redressal Forum, wherein it was held: "We thus conclude that a party to the proceeding before the District Forum/State Commission has right to authorize a person of his choice to represent him and appearance of such agent authorized by the party on the date of hearing before District Forum/State Commission is not restricted to physical appearance but includes in terms of Rules 4(7) 4(8) or 9(6) of Rules of 2000 to examine and cross-examine the witness, address the Court and take part in the proceedings as the case may be. Any other view may defeat the very objectives for which Act of 1986 was enacted". "The right to appear, therefore includes right of addressing the Court, examining, cross-examining witnesses, oral submissions, etc. If we accept the submission of Mr. Singhvi that ''to appear'' mean only physical presence before the Consumer Forum for the purposes of filing complaint, appeal, or reply on behalf of the party, it would create a very strange situation before the Consumer Forum/State Commis-sion. If an authorized agent alone appears on the date/dates of hearing, neither the hearing will proceed further nor the Consumer Forum will be able to either dismiss the complaint for default or decide it on merit or decide it ex parte. Consider situation like this Section 12 of the Act of 1986 permits the aggrieved consumer to file complaint through recognized Consumer Association. In the complaint, Consumer Association appears through its office bearer as its recognised agent. Does the law i.e. Act of 1986 and Rules of 2000 compel such complainant association who is espousing the cause of consumer, engagement of legal practitioner to address the Consumer Forum.'' Answer is simple No. Once the complaint is filed by aggrieved consumer through recognised consumer association the authorized agent appearing for such recognised Consumer Association is expected to take the complaint to logical conclusion by full participation in the complaint proceedings, which may include addressing the Forum, examining and cross-examining the witnesses, etc. Observation of principles of natural justice alone is sufficient in rendering justice to consumers. In view of this, we have no hesitation in giving wider and comprehensive meaning to the expression ''to appear'' appearing in Rules 4(7) and 8 (7) of the Rules of 2000 to include addressing the Court, examining and cross-examining witnesses, etc. We are of the considered view in the light of statutory provisions like Section 2(1)(b)(ii) and Section 12 of the Act of 1986 and Rules 4(7) and 8(7) of Rules of 2000 that right of audience inheres in favour of authorised agents of the parties to the proceedings before District Consumer Forum and State Commission and such right is not inconsistent or in conflict with the provisions of Advocates Act".
(emphasis supplied)
THIS Commission held that the view taken by Bombay High Court in the said judgment was correct view of the law on the subject. It was held that the authorized agent and voluntary organisation as defined in the Act have certainly right of audience before the Consumer Forum and that right cannot be taken away by referring to the provisions of the Code of Civil Procedure which has no application inasmuch as the Act is a departure from the ordinary procedure prescribed in the Code.
THE National Commission has, therefore, accepted the view of the Bombay High Court wherein wider and comprehensive meaning has been given to the expression ''to appear'' appearing in Rules 4(7) and 8(7) of the Rules of 2000 which includes addressing the Court, examining and cross-examining witnesses, etc.
THE question to be considered is whether power of attorney can step into the shoes of his principal for tender of affidavit evidence on his behalf. If the power of attorney holder has rendered same acts in pursuance of the power of attorney, he can depose on behalf of principal in respect of such acts, but he cannot depose for the acts done by the principal and not by him. The authorized representative/special power of attorney cannot depose on behalf of his principal in respect of matters, which are not within his personal knowledge. Power of attorney cannot be allowed to depose for the principal in respect of matters on which only the principal can have personal knowledge and in respect of which the principal is required to be cross-examined. The order of the State Commission shows that the account of the petitioner was overhauled for the period 10/2000 to 12/2000 and the authorized representative was not power of attorney of the petitioner when account of the power of attorney was overhauled and he had no personal knowledge about the same inasmuch as he was appointed as special power of attorney appointed by the petitioner on 26.8.2004. In this view of the matter, the State Commission refused to read into evidence affidavit of Shri Kuldip Raj Kaila. Neither any partner of the petitioner was examined nor affidavit evidence was filed by any partner of the petitioner. Therefore, the State Commission, in our view, has considered the matter in the correct prospective and dismissed the appeal, which, in our opinion, does not call for interference in the exercise of revisional powers, as we do not find any jurisdictional error, illegality or material irregularity in the order of the State Commission. Besides this, the electric connection was for running poultry unit and the respondent had rightly raised objection that the petitioner does not fall under the definition of consumer under the C.P. Act. This plea of the respondent is well founded and we are of the view that the electric connection being for commercial purpose the petitioner does not qualify to be a consumer and the complaint was liable to be dismissed on this count as well.
FOR the aforesaid reasons, we do not find any merit in this revision and the revision is hereby dismissed with no order as to costs.
THE impugned order was stayed by us on 10.3.2011. With the dismissal of the revision, the stay of the impugned order, which was granted on 10.3.2011 stands vacated. A copy of this order be sent urgently to both the parties by the Registry. Revision dismissed.