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Judgment
Dr. B. P. Saraf, C.J.
1.This is an appeal from order dated 5th August, 1997 of the JandK State Consumers Protection Commission (""State Commission"") by which the
State Commision awarded a sum of Rs. 60,000/ in favour of the respondent on account of loss of baggage containing Video Camera, Cordless
Telephone Instrument and some articles of day to day use and a sum of Rs. 5000/ on account of expenses for travel and costs of litigation.
This appeal was admitted by this Court on 22nd September, 1997. There was an interim application of the appellants for stay of the operation
of the impugned order. On that application, it was directed that the impugned order shall remain stayed on condition that the appellants pay Rs.
10,000/ to the respondent within a period of two months from the date of the order subject to the ultimate decision of the case. The appellants
complied with the above order. When this appeal came up for hearing, learned counsel for the respondent, Mr. Hakim Sami Yaqoob, raised a
preliminary objection in regard to the maintainability of this appeal. He invited our attention to the Jammu and Kashmir Consumer Protection
(Amendment) Act, 1997 (Act No. XIX of 1997) (hereinafter referred to the ""Amendment Act""), by which, with effect from 2nd June, 1997, a
new proviso has been added to S. 17, as third proviso, which provides that no appeal shall lie unless the memorandum of appeal is accompanied
by a certificate issued by the Chairman, State Commission to the effect that the appellant has deposited 25% of the amount payable under the
order. Learned counsel submits that the present appeal having been filed after the coming into force of the above amendment without complying
with the mandatory requirement of the newly inserted third proviso, is liable to be dismissed as not maintainable. Learned counsel states that the
present appeal was filed on 4th September, 1997, i.e. after the coming into force of the aforesaid amendment. He submits that in view of the above
amendment, which was applicable on the date the appeal was filed, it was obligatory on the part of the appellants to deposit 25% of the amount
payable under the impugned order with the State Commission and to obtain a certificate from the Chairman of the state Commission to that effect
and to annex the same with the memo of appeal. He submits that this is a mandatory requirement which is evident from the expression ""no appeal
shall lie unless memo of appeal is accompanied by a certificate issued by the Chairman of the State Commission to the effect that the appellant has
deposited 25% of the amount payable under the order"" appearing in the newly inserted third proviso to S. 17 of the Act. The learned counsel for
the respondent, therefore, submits that the present appeal is liable to be dismissed on that count itself.
Mr. B.A. Bashir, learned counsel for the appellants, on the other hand, submits that as the appellants were not aware of the amendment, the
appeal was filed without complying the third proviso to S. 17 of the Act, which was inserted by the Amendment Act of 1997 with effect from 2nd
June, 1997. He submits that as soon as this amendment was brought to the notice of this Court on 27th September, 1997 and objection raised
about the maintainability of the appeal,this Court issued direction to the appellants to comply with the requirements of the newly inserted third
proviso to S. 17 of the Act. In compliance to the above direction, the appellants deposited in the Court a sum of Rs. 6,250/ on 1781998 which,
according to him, was the only amount required to be deposited in view of the payment of a sum of Rs. 10,000/ to the respondent in compliance of
the earlier order of this Court dated 2291997. According to Mr. Bashir, in these peculiar facts and circumstances of the case, deposit of the above
amount should be construed as sufficient compliance of the requirement of the third proviso to S. 17 of the Act. He further submits that this appeal
would be maintainable even if the deposit is made subsequent to the filing of the appeal. In support of this contention he relies on the decision of the
supreme Court in Commissioner of Incometax v. M/s Filmistan Ltd. AIR 1961 SC 1134.
In reply, the learned counsel for the respondent, Mr. Hakim Sami Yaqoob, sumbits that the appellants have not complied with the requirements
of the third proviso even till today because the requirement is to deposit 25% of the amount payable under the order appealed against with the
State Commission and to furnish a certificate from the Chairman of the State Commission to that effect to the High Court, whereas the appellants
have deposited a sum of Rs. 6250/ in this Court, which amount again is less than 25% of the amount payable under the order by Rs. 10,000/. He
further submits that the amount of Rs. 10,000/ which was paid by the appellants to the respondent in compliance of the condition imposed by this
Court for stay of the impugned order in the interim application of the appellants cannot be treated as a part of the deposit contemplated by the third
proviso to S.17. he, therefore, submits that the appeal got admitted by this Court erroneously without noticing the mandatory requirement of
predeposit of 25% of the amount payable under the order with the State Commission. According to him, the present appeal is not maintainable
even today and the same is liable to be dismissed accordingly.
We have our careful consideration to the rival submisions and perused the original proviso to S. 17 as also the three new provisos, which have
been substituted in its places. Originally, S. 17 of the Act, which provides for appeal to the High Court from any order of the State Commission,
read as follows :
Appeals. Any person aggrieved by any order by the State Commission in exercise of its powers conferred byclause (i) of clause(a) of S. 15
may prefer an appeal against such order to the High Court within a period of thirty days from the date of the order in such form and manner as may
be prescribed :
Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause
for the filing it within that period.
The above proviso to S. 17 was substituted by the Amendment Act of 1997 with effect from 2nd June, 1997 by the following three provisos :
Provided that such appeal shall be heard by not less than two Judges of the High Court;
Provided further that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient
cause for not filing it within that period;
Provided also that no appeal shall lie unless the memorandum of appeal is accompanied by a certificate issued by the Chairman, State Commission
to the effect that the appellant has deposited 25% of the amount payable under the order
From a plain reading of the above newly inserted third proviso, it is clear that it seeks to lay down a new condition on the right of appeal from an
order of the State Commission to the High court. It provides that no appeal shall lie unless the memorandum of appeal is accompanied by a
certificate issued by the Chairman, State Commission to the effect that the appellant has deposited 25% of the amount payable under the order.
This provision came into force with effect from 2nd June, 1997. If this proviso is applicable, the first question that would arise for consideration is
what is the true meaning of expression ""no appeal shall lie"". Will it mean that no memorandum of appeal can be presented or that the appeal will
not be held to be properly filed until the requirement of that proviso is complied with?
Before we proceed to examine this question, it is expedient to take note of certain material dates. The complaint in the present case was
instituted in the state Commission on 27th July, 1996, much before the coming into force of the Amendment Act and the third proviso to S. 17.
The State Commission passed its order on 5th August, 1997. The present appeal was filed on 4th September, 1997. The period of filing of appeal
is 30 days. This appeal was, therefore, treated by the registry as filed within time. It was also admitted by the Court without asking for any
predeposit as contemplated by the third proviso to S. 17 of the Act. No objection was taken by the respondent to the admission of the appeal
without complying with the requirement of predeposit as contemplated by the third proviso to S. 17 of the Act. Thereafter, the appeal was also
listed for hearing from time to time but the hearing could not take place for one reason or the other. The appeal was again on board for hearing
27th July, 1998. From the order passed by this Court on that day, it appears that the attention of the Court was drawn by the respondent to the
newly inserted third proviso to S. 17 of the Act and noncompliance thereof by the appellants. The order reads as follows :
To enable Shri B.A. Bashir to take steps in this case in accordance with Proviso 3 to S. 17 (Amended) of JandK State Consumers Protection
Act, 1997, matter is adjourned.
List after eight weeks.
As stated earlier, the appellants deposited a sum of Rs. 6,250/ in the purpored compliance of the requirement of the thrid proviso to S. 17.
On the facts, few important questions of law arise. First, whether an appeal filed by the appellants without complying with the requirements of
the third proviso to S. 17 of the Act was maintainable. Second, when the appeal can be said to have been filed in accordance with law? Can it be
said to have been filed on the date it was filed in the High Court even without the requisite certificate contemplated by the third proviso to S. 17 as
evidence of the fulfilment of the requirement of predeposit or it can be said to have been filed on the date when the requirement of predeposit was
complied with? Secondly, whether the deposit of Rs. 6,250/ in this Court in the present case is sufficient compliance with the requirement of third
proviso to S. 17 because 25% of the amount payable under the order was Rs. 16,250/. The amount of Rs. 10,000/ was paid to the respondent
subject to the outcome of the appeal pursuant to the direction in the interim application of the appellants for stay of the operation of the order and
not as a precondition for admission of the appeal. Admittedly, the appeal was admitted without any condition of predeposit. This amount of Rs.
10,000/ was directed to be paid only as a condition for stay of the impugned order. The question that would arise for consideration is whether in
such circumstances, the appellants were required to deposit Rs. 16,500/ or Rs. 6,500/ which they have done in the instant case.
So far as the true meaning of the expression ""no appeal shall lie"" is concerned, we find that it is no more res integra in view of the decision of the
Supreme Court in Commissioner of Incometax v. M/s Filmistan Ltd. AIR 1961 SC 1134. In that case, the expression ""no appeal shall lie
appearing in the proviso to S. 30 (1) of the Indian Incometax Act, 1922 came up for consideration before the Supreme Court. The relevant
proviso to S. 30 of the Indian Incometax Act read as follows :
Provided that no appeal shall lie against an order under subsec. (1) of S. 46 unless the tax has been paid.
The controversy before the Supreme Court revolved round the words ""no appeal shall lie"". The contention before the Supreme Court was that
these words mean that there is no right to appeal till the tax is paid and, therefore, if the tax has not been paid the memorandum of appeal cannot
be filed and if filed it is merely a waste paper. The Supreme Court repelled this contention and held: at Page 1135
.............(I)n our opinion, the meaning of the words ""no appeal shall lie"" in the proviso is not that no memorandum of appeal can be presented. All
that it means is that the appeal will not be held to be properly filed until the tax has been paid.
The Supreme Court further held that if the tax is paid after the expiry of the period of limitation, the appeal will be taken to have been filed on the
date when the tax is paid even though the memorandum of appeal was presented earlier and within the period of limitation.
The Supreme Court explained the true legal position in this regard with the help of the following illustration:
.............(I)f, for instance, the memorandum of appeal is filed on the 20th day, i.e. 10 days before the period of limitation expires and the tax is
paid within the rest of the 10 days, the appeal will be a proper appeal, it will be within time and no question of limitation will arise but if the tax is
paid after the period of limitation has expired, it will be taken to have been filed on the date when the tax is paid even though the memorandum of
appeal was presented earlier and within the period of limitation.
The Supreme Court held that the question then will have to be decided whether there was sufficient cause for condonation of delay and what was
exactly the delay.
It is clear from the above decision of the Supreme Court that if any amount is required as a precondition for the maintainability of the appeal,
the appeal will be taken to have been filed on the date the amount tax is deposited even though the memorandum of appeal was presented earlier
and within the period of limitation. The material date in the present case, therefore, is the date the amount is deposited in terms of the third proviso
to S. 17. Admittedly, no deposit was made within the period of limitation. The deposit of Rs. 6,250/ which too, according to the respondent'
strictly speaking, is no compliance of the third proviso to S. 17, was also made much after the expiry of the period of limitation, though the
memorandum of appeal was presented within time. That being so, if the newly inserted third proviso applies, in any event, the appeal on the face of
it is barred by limitation by about an year.
Two questions arise for consideration. First, whether the deposit of a sum of Rs. 6,250/ in this Court and payment of Rs. 10,000/ to the
respondent, the aggregate of which comes to 25% of amount payable under the order of the State Commission, can be construed as sufficient
compliance of the requirement of the third proviso to S. 17 of the Act, as amended. If the answer to the first question is in the affirmative, the
deposit having been about one year after the expiry of the period of limitation for filing the appeal, the second question that would arise is whether
there was sufficient cause for the delay in filing the appeal. But before we take up these two questions for consideration, the basic question that
requires consideration and determination is whether the third proviso to S. 17, which was inserted with effect from 2nd June, 1997, has any
application to the present case. In other words, whether the right of appeal which was available at the time when the complaint was filed before the
State Commission or the right of appeal with the rider added by the amendment Act, which was applicable on the day the order under appeal was
passed or on the day the appeal was filed, would apply. If the preamendment S. 17 applies, the two questions framed above would become
academic for the purposes of the present case.
Law is well settled that right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the
decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given
by the inferior Court. A preexisting right of appeal is not destroyed by an amendment if the amendment is not made retrospective by express
words or necessary intendment. The fact that the preexisting right of appeal continues to exist, in its turn, necessarily imply that the old law which
created that right of appeal must also exist to support the continuation of that right. As the old law continues to exist for the purpose of supporting
the preexisting right of appeal that old law must govern the exercise and enforcement of that right of appeal and there can be no question of the
amended provision preventing the exercise of that right. A provision which is calculated to deprive a party of the unfettered right of appeal cannot
be regarded as a mere alteration of procedure. For the purpose of the accrual of the right of appeal the critical and relevant date is the date of
initation of the proceedings nd not the decision itself.
In Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh AIR 1953 SC 221 the Supreme Court reiterated this principle and said that
: at page 224
...............(T)hat a right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of
an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the
inferior Court. In the language of Jenkins C.J., in Nana v. Sheku (B) (supra) [32 Bom. 387], to disturb an existing right of appeal is not a mere
alteration in procedure. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere
with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary
implication.
In the above case, under the proviso to S. 22(1) of C.P. and Berar Sales tax Act, 1947 an aggrieved assessee had to pay such amount of tax
as he might admit to be due from him as a precondition for enter tainment of his appeal. The above proviso was amended. Under the amended
proviso the appeal had to be accompanied by satisfactory proof of payment of tax in respect of which the appeal had been preferred. The question
for consideration before the Supreme Court was whether the imposition of such a restriction by amendment of the section can affect the assessee's
right of appeal from a decision in proceedings which commenced prior to such amendment and which right of appeal was free from such restriction
under the section as it stood at the time of the commencement of the proceedings) the Supreme Court observed (at p. 222):
That the amendment has placed a substantial restriction on the assessee's right of appeal cannot be disputed, for the amended section requires the
payment of the entire assessed amount as a condition precedent to the admission of its appeal. The question is whether the imposition of such a
restriction by amendment of the section can affect the assessee's right of appeal from a decision in proceedings which commenced prior to such
amendment and which right of appeal was free from such restriction under the section as it stood at the time of commencement of the
proceedings.
The Supreme Court held:
.........(T)he preexisting right of appeal is not destroyed by the amendment if the amendment is not made retrospective by express words or
necessary intendment.
The Supreme Court further held :
........The fact that the preexisting right of appeal continues to exist must, in its turn, necessarily imply that the old law which created that right of
appeal must also exist to support continuation of that right. As the old law continues to exist for the purpose of supporting the preexisting right of
appeal that old law must govern the exercise and enforcement of that right of appeal and there can be no question of the amended provision
preventing the exercise of that right. The argument that the authority has no option or jurisdiction to admit the appeal unless it be accompanied by
the deposit of the assessed tax as required by the amended proviso to S. 22 (1) of the Act overlooks the fact of existence of the old law for the
purpose of supporting the preexisting right and really amounts to begging the question. The new proviso is wholly inapplicable in such a situation
and the jurisdiction of the authority has to be exercised under the old law which so continues to exist.
(Emphasis supplied)
In the facts and circumstances of that case, it was, therefore, held :
...........(W)e area of the opinion that the appellant's appeal should not have been rejected on the ground that it was not accompanied by
satisfactory proof of payment of assessed tax. As the appellant did not admit that any amount was due by it, it was under the section as it stood
previously entitled to file its appeal without depositing any sum of money.
Identical controversy came up for consideration before a Constitution Bench of the Supreme Court in Garikapatti Veeraya v. N. Subbiah
Choudhary 1957 SCR 488 (AIR 1957 SC 540). The Supreme Court considered a large number of authorities on the point and summed up the
principles emerging therefrom as follows : at page 553; of AIR
(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic
unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(iii) The institution of suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the
career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis
commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing
at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the
appeal.
(v) This vested right of appeal can be taken away only by subsequent enactment, if it so provides expressly or by necessary intendment and not
otherwise.
(Emphasis supplied)
Reference may also be made in this connection to a recent decision of the Supreme Court in Ramesh Singh v. Cinta Devi 1996 (5) JT SC 543
(AIR 1996 SC 1560). In that case the question for consideration before the Supreme Court was:
(D)oes a right of appeal accrue to a claimant under the Motor Vehicles Act, 1939, hereinafter called the 'old Act', on the institution of a claim
application in the Motor Accident Claims Tribunal, notwithstanding its repeal by the Motor Vehicles Act,1988, hereinafter called 'the new Act?
The Supreme Court held :
In our view the point at issue stands squarely covered by three decisions of this Court reported in Hussain Kasim Dada v. State of Madhya
Pradesh and others (1953 SCR 987 AIR 1953 SC 221) (at 991), State of Bombay v. Supreme General Films Exchange Ltd. (1960 (3) SCR
640 (AIR 1960 SC 980) and Vithal Bhai Narang Bhai Patel v. Commissioner of Sales Tax, M.P. and Nagpur, AIR 1967 SC 344. In all these
decisions the view taken is that unless the New Act expressly or by necessary implication makes the provision applicable retrospectively, the right
to appeal will crystallise in the appellant on the institution of the application in the Tribunal of first instance and that right of appeal would not be
dislodged by the encatment of the New Act. In other words, the appellant would beentitled to file the appeal without being required to make the
deposit under the proviso to S. 173 of the New Act. The law, therefore, seems to be fairly well settled by the said three decisions of this Court.
It is clear from the above decisions of the Supreme Court that the right of appeal in the instant case got vested in the appellant the moment the
complaint was filed before the State Commission on 27th July, 1996, much before the Amendment Act and the newly inserted third proviso came
into force and that right would not be dislodged by the amendment of S. 17 of the Jammu and Kashmir Consumer Protection Act, 1987. The
restriction imposed on the right of appeal would not be applicable in the present case. The right of appeal will be governed by the law as it stood at
the time of the institution of the complaint before the State Commission and not by the law applicable on the date of the impugned order or the date
of filing of the appeal. That being so, the appellant was entitled to file the appeal without making the deposit of 25% of the amount payable under
the order of the State Commission, as required by the newly inserted third proviso to S. 17 of the Act. In that view of the matter, in our opinion,
the present appeal was rightly admitted by this Court without insisting on the compliance of the newly inserted third proviso to S. 17 of the Act
because the same was not applicable to the present case. It appears that the order of this Court dated 27th July, 1998, asking the appellant to
comply with the requirement of third proviso of S. 17 of the Act, came to be passed because of the failure of the parties to bring the true legal
position to the notice of the Court. In view of the above conclusion of ours, all issues in regard to the noncompliance of the third proviso to S. 17
and condonation of delay have become academic for the purposes of the present case. We, therefore, do not think it necessary to revert back to
them.
Coming to the merits of the case, the facts of the case, briefly stated, are as follows. The respondent, Farooq Ahmad Jan, travelled by Indian
Airlines flight from Delhi to Srinagar on 23rd June, 1996. He was carrying with him a hand bag containing a 'Canon' make video camera worth Rs.
50,000/, 'Soni' make cordless telephone instrument worth Rs. 7,000/ and clothes and toileteries worth Rs. 3,000/. While booking his luggage, the
respondent wanted to carry the handbag containing the camera, cordless telephone instrument etc. as hand baggage. He was not allowed to do so
by the staff of the Indian Airlines Corporation at the Airport on the ground that the camera had battery in it. According to the respondent, his
statement that the battery in the camera was in built was not taken note of and he was asked to book the handbag along with his other luggage.
The total baggage including the handbag was weighed and he was charged for 40 Kilograms. He paid an amount of Rs. 928/ for the extra
baggage. According to the respondent, the Indian Airlines staff undertook to provide proper service and deliver the luggage including the handbag
to him at the Srinagar Airport. At Srinagar Airport, the respondent found that the bag containing the video camera and the cordless telephone
instrument was missing. He reported the matter to the Station Manager, Indian Airlines Limited, Airport, Srinagar, who assured him that the matter
would be investigated and the missing handbag would be recovered. Before leaving the airport, the respondent obtained a report from the
concerned official wherein the ticket number, date of travel and the carrier bag tag number were endorsed along with the report of the loss. The
Indian Airlines officials, however, failed to trace the handbag and offered to compensate the respondent by paying Rs. 10,000/. The respondent
refused to accept the same. On the other hand, aggrieved by the refusal of the respondent to pay the full compensation claimed by him for the loss
caused to him due to nondelivery of the handbag by the Indian Airlines staff at Srinagar Airport, he filed a complaint before the JandK State
Consumer Protection Commission on 27th July, 1996. The Indian Airlines Corporation, the respondents in the complaint, filed objections. There
was no dispute about the travel of the respondent on the Indian Airlines flight on the day mentioned in the complaint along with the baggage
including the handbag. It was, however, stated on behalf of the Indian Airlines that it was not the Indian Airlines Staff, but the security staff, which
did not allow the respondent to carry the handbag as hand baggage on account of which he was required to book the same alongwith his other
baggage. There was also no dispute about the payment of fare for the extra baggage. The main defence of the Indian Airlines Corporation was that
there was no evidence that the complainant had purchased those goods in Delhi. The State Commission was not impressed by this defence and
termed it as ""very curious defence"". The State Commission has stated in its order that complainant had produced Photostat copies of the relevant
documents, including the purchases vouchers, which were compared and verified with the originals which were in the possession of the
complainant. The State Commission was satisfied that the complainant had purchased the two items, i.e., video camera and cordless telephone
instrument, which he was carrying in the handbag. The Commission also noted that there was no denial of the Indian Airlines that he was not
allowed to carry the handbag with him. The only plea taken by the Indian Airlines before the State Commission was that it was the security staff
and not the Indian Airlines Staff, who did not allow the complainant to carry the hand baggage with him in the Indian Airlines. There was no dispute
about the fact that the handbag, which was duly booked by the complainant, could not be delivered to him on his arrival at Srinagar Airport. The
State Commission took note of the fact that no investigation had been made and no responsibility fixed for the missing baggage. The State
Commission also took note of the fact that such incidents were not uncommon and, for the reasons set out in the order, refused to accept the
defence of the Indian Airlines. The State Commission, therefore, allowed the complaint of the complainant and awarded him a sum of Rs. 60,000/
being the cost of the baggage containing video camera, cordless telephone instrument and other articles and Rs. 5,000/ by way of costs to meet the
travel expenditure and cost of litigation. Aggrieved by the above order, Indian Airlines are before us by way of this appeal.
Mr. B.A. Bashir, learned counsel for the appellants, submits that in the absence of the filing of the original documents for the purchase of the
video camera, cordless telephone instrument, toileteries etc. and proof of their price, the State Commission was not justified in allowing the claim.
He also took exception to the State Commission accepting the Photostat copies of the vouchers produced by the complainant. He had also serious
objection to the grant of costs on account of expenses for travel and litigation in the facts and circumstances of this case. Learned counsel for the
respondent, on the other hand, submits that it is not a case of relying on the Photostat copies of the vouchers. He has drawn our attention to that
part of the order of the State Commission wherein it has been stated that the original vouchers were produced and Photostat copies were
compared and found to be correct. The fact that instead of the originals, the Photostat copies were kept on record, according to the learned
counsel, is not fatal to the order. We have considered the above submission of the learned counsel for the respondent. We find merit in the same.
We do not think that the fact that the State Commission took on record the Photostat copies of the documents after comparing the same with the
originals, which were produced before it by the party, is fatal to the order. There can be no dispute about the fact that the State Commission
should follow the rules of procedure but while doing so it is not bound by the strict rigidities of the procedure. The Commission having compared
the Photostat copies with the originals and having been satisfied about the genuineness of the same did not commit any illegality in not taking the
originals on record and returning the same to the complainant. Otherwise also, we do not think that in a case of loss of any valuable item in transit,
it is necessary for the complainant to produce the purchase memo to substantiate his claim for compensation on account of loss in transit. Purchase
memo may be useful for establishing the quantum of loss caused on account of the loss of the article. But that can be also established by producing
other evidence, such as catalogues from the suppliers or other evidence of the prevailing price thereof in the market. In the instant case, the
complainant proved not only the price but also the ownership. On the facts and in the circumstances of the case, in our opinion, the State
Commission in our opinion was justified accepting the same and allowing the claim of the complainant for damages.
It may be pertinent to observe that the Consumer Courts have been constituted by the Act to provide for better protection of the interests of
the consumers and to provide them expeditious and speedy remedy. It is intended to protect the legitimate interests of the consumers of goods and
services. The Consumers Disputes Redressal Agencies, established under S. 7 of the Act, i.e., the Divisional Forum and the State Commission, are
quasijudicial authorities. They are not courts in the strict sense of the term. The Divisional Forum and the State Commission are deemed to be civil
courts only for the purposes of S. 195 and Chapter XVII of the Code of Criminal Procedure Smvt. 1989. They have got the same powers as are
vested in a civil Court under the Code of Civil Procedure while trying a suit only in respect of certain matters, namely, summoning and enforcing the
attendance of any defendant and witness and examining the witness on oath; discovery and production of any document or other material object
producible as evidence, reception of evidence on affidavits; requisitioning of the report of the concerned analysis or test from the appropriate
laboratory or from any other relevant source, issuing of any commission for the examination of any witness; and any other matter which may be
prescribed. The proceedings before these forums are also not judicial proceedings in the strict sense of the term. The proceedings are deemed to
be judicial only to the extent and for the purposes indicated in subsec. (5) of S. 11 of the Act. These forums are not governed by the strict
technicalities of the law. The procedure to be followed by both the Divisional Forum and the State Commission on receipt of the Complaint has
been laid down in S. 11 of the Act. It may be expedient to set out subsec.(2) of S. 11 of the Act which deals with the procedure to be followed by
the Divisional Forum except in case falling under subsec.(1) thereof. It reads :
(2) The Divisional Forum shall, if the complaint received by it under S. 10 relates to goods in respect of which the procedure specified in subsec.
(1) cannot be followed, or if the complaint relates to any service :
(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended
period not exceeding fifteen days as may be granted by the Divisional Forum;
(b) Where the opposite party on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in
the complaint or omits or fails to take any action to represent his case within the time given by the Divisional Forum, the Divisional Forum shall
proceed to settle the consumer dispute :
(i) On the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the
allegations contained in the complaint, or
(ii) On the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case
within the time given by the Forum.
By virtue of S. 16 of the Act the same procedure has been made applicable to the disposal of disputes by the State Commission. Subsection
(3) of S. 11 of the Act makes it clear that the only procedure to be followed by the Divisional Forum and the State Commission is the porocedure
laid down in subsec. (1) and (2) of S. 11 of the Act and if that procedure is followed in any proceedings, such proceedings cannot be called in
question in any court on the ground that the principles of natural justice have not been complied with. In other words, the legislature itself has laid
down the requirements of natural justice which have to be complied with by the Divisional Forum and the State Commission. It is clear from
subsec. (1) and (2) of S. 11 of the Act that the Divisional Forum and the State Commission have to decide the consumer disputes on the basis of
evidence brought to its notice by the complainant and the opposite party where the opposite party denies or disputes the allegations contained in
the complaint, or on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to
represent his case within the time given by the Forum. In proceedings before the Consumer forums mere preponderance of probabilities may
constitute adequate basis of the decision. The theory of preponderance of possibilities suggests that a fact can be said to be proved when the
Court either believes that it exists or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to
act upon the supposition that it exists. The belief regarding the existence of a fact may be founded on a balance of probabilities. A prudent man
faced with conflicting probabilities concerning a fact will act on the supposition that it exists if on weighing the various probabilities he finds that the
preponderance is in favour of existence of a particular fact. Within the wide range of probabilities, the Court has often a difficult choice to make,
but it is this choice which determines where the preponderance of probabilities lies. Preponderance of evidence,in fact, means that evidence which
satisfies the conscience and carries conviction to an intelligent mind. The Forums constituted under the Act for redress of the grievances of the
consumers are not fettered or bound by the technical rules of evidence contained in the Indian Evidence Act. The rigour of the rules of evidence
contained in the Evidence Act is not applicable to proceedings before the consumer forums constituted under the Act. What is required is that they
must conduct themselves in accordance with the principles of justice, equity and good conscience. They must follow the procedure laid down in S.
11 of the Act. If that is done, such proceedings cn not be called in question in any Court on the ground that the principles of natural justice have not
been complied with (subsec.(3) of S. 11.). The Act thus lays down the procedure which, keeping in view the summary nature of the proceedings
before the forums, would amount to sufficient compliance with the requirements of the principles of natural justice. This interpretation is in
consonance with the scheme and object of the Act which has been enacted to enable consumers to obtain redress through procedures that are
expeditious, fair, inexpensive and accessible. Any other interpretation will frustrate the very purpose of the Act.
In the premises aforesaid, we do not find any merit in this appeal. There is no such infirmity in the impugned order of the State Commission
which might justify interference of this Court in exercise of its appellate jurisdiction.
We, therefore, dismiss this appeal. However, in the facts and circumstances of the case, we make no order as to costs. This appeal is
disposed of accordingly.