PREM CHAND YADAV vs SUB POST MASTER, LOHARU

WHETHER the Consumer Protection Act would govern a consumer dispute, the cause of action whereof arose prior to its enforcement? Is the said Act penal in nature and consequently cannot have retrospective effect? These are the two significant thresh hold issues in this appeal.

THE challenge herein is against the order of the District Forum, Bhiwani whereby the appellant''s complaint stands dismissed on the preliminary ground of the lack of jurisdiction. In order to appreciate the legal controversy herein, it is unnecessary to delve into the facts in any great detail. It suffices to mention that the complainant appellant had sent a money order of Rs. 500/- to his father in his home-town village Gada Raja, P.O. It wakungai, District Basti (U.P.) way back on the 14th of May, 1986. According to the complainant the said money order was never delivered to his father and he consequently complained about the same to the Departmental authorities by an application dated the 18th of November, 1986. THE latter after full investigation thereof took up the plea that the said money order had been delivered to the father of the appellant according to their record and informed the complainant-appellant about the same vide their communication (Annexure 3) dated the 3rd of December, 1986. In the proceedings before the District Forum the primal preliminary question raised was whether the Act would apply to a dispute which had arisen prior to the date of the enforcement of the said statute. The District Forum in its somewhat brief order noticed that the complainant had informed the Post Office about the non-delivery of the money order on the 18th of November, 1986 and he received a firm reply thereto on the 3rd of December, 1986, to the effect that the money order had been duly paid over. Taking the last date as the accrual of the cause of action it held that the same had arisen before the Act had come into force and hence not cognizable.

The District Forum further proceeded to hold that some of the provisions of the Act were penal in nature and, therefore, the Act cannot have retrospective effect, but can only be prospective in operation. Apparently on both the afore noticed grounds the District Forum concluded that the present consumer dispute was not covered by the Act and without adverting to the merits thereof the complaint was dismissed or preliminary ground alone.

THE appellant apart from being a lay-man had candidly conceded that he was wholly illiterate. Consequently, he could not possibly address us on the niceties of the legal issues of jurisdiction. He, however, passionately pleaded that infact the money order was never received by his father and pitiously prayed for some redress. THE respondent Department was represented by Mr. Ram Phul Singh, Sub Divisional Inspector who also could not possibly assist us on the somewhat intricate questions aforesaid. Nevertheless as the issues have arisen pointedly an adjudication thereon cannot be avoided despite the lack of adequate assistance on either side. We are inclined to the view that the first question aforementioned has by now been the subject matter of consideration by precedent both by way of anology or directly on fours. Pride of place must necessarily be first given to the judgments of the National Commission. In I (1991) CPJ 330 (NC) ''M/s. Oswal Fine Arts v. M/s. H.M.T., Madras'' the cause of action had arisen in 1979 which obviously was long before the enforcement of the Act. The National Commission did not non-suit the complainant on the ground that the complaint would be not maintainable because the is had originated even before the Act was notified. They, however, took the view that the claim therein would become time barred under the law of limitation and in such a case the National Commission would not entertain such a state claim. Yet again the National Commission in II (1991) CPJ 383 (NC). ''Dr. Indira Sanghi v. Karnataka Electricity Board'' was confronted with a complaint (on the matter being remitted back to them by the Hon''ble Supreme Court) the cause of action wherein had arisen way back at least in April 1976. The National Commission did not reject the complaint on that score, but held that because of the application of the Limitation Act the complaint had become barred by time and consequently dismissed the same. Both these cases are, thus, clearly indicative of the fact that merely because the cause of action had arisen earlier than the date of the enforcement of the Act would not ipso-facto be a ground for the dismissal of a complaint.

HOWEVER, the question before us arose directly before the State Commission of Delhi in II (1991) CPJ 327 ''Prabhat Bag Factory v. United India Insurance''. Therein a specific plea was taken that the loss suffered by the complainant had occurred at a time when the Consumer Protection Act was not in existence and consequently the complaint was not maintainable. The State Commission pointedly considered the question in some depth and referred to the preamble of the Act, its provisions and even the debate in Parliament on the bill when the same was presented by the Minister of Food & Civil Supplies. It was thereafter concluded that the consumer in whose favour cause of action arises prior to coming into the force of the Act can take benefit of its provision and file a complaint under it. We are strongly inclined to agree with the said view. It bears repetition that since the question does not appear to us as being res-integra and is covered by precedent it would be unnecessary and wasteful to examine it on first principles and tread the same ground over again. Following and agreeing with the existing precedents, we would answer the first question in the affirmative. It is held that the Act is clearly attracted to a consumer dispute, the cause of action where for arises prior to its enforcement. Coming now to the second question it calls for notice that the District Forum has concluded the matter summarily in a few lines alone without elaborating it either on principle or precedent. So far as we are aware, the only provision in the Act which may have some semblance of being penal in nature is Section 27. It is significant to note with regard to the same that this pertains only to a penalty which may be imposed on a person who fails or omits to comply with any order made by the redressal agencies constituted by the Act. This provision cannot be easily construed as creating an offence to which the rule of ex-post-facto criminality may apply. It is otherwise elementary that Section 27 inherently cannot have any retrospectivity whatsoever because it can only come into play long after the constitution of the redressal agencies by the Act and their passing an order or direction there under which may be contravened thereafter. There is, thus, no question of Section 27 ever having a retrospective operation to violate the Constitution guarantee under Article 20.

A reference to all the other remaining provisions of the Act would indicate that there is not a hint of these being in any way penal in nature in the sense of creating a criminal offence. Indeed a bare reading of its provisions and by now a number of binding and persuasive precedents would show that the same is a beneficient statute which is to be liberally construed. The Act has come into force since 1987 and during the following period of five years a considerable case law has now evolved around its provisions. We are unaware of any judgment or order which so far has taken the view that the provisions of this Act are penal in nature and for this reason the same cannot have a retrospective operation.

IN the light of the above, we would answer the second question in the negative and hold that the Act is not penal in nature and on that score cannot be barred from having retrospective effect. In view of the aforesaid twin conclusion it is somewhat manifest that the order of the District Forum cannot be sustained on the grounds on which it proceeds. The complainant, however, has only a pyrrhic victory. It would appear that the order has to be up-held on the alternative ground of the bar of limitation. The District Forum''s finding that herein the cause of action arose on the 3rd of December, 1986 is impeccable and has not been assailed at all. The complaint in the present case before the District Forum was presented on the 4th of December, 1991 a day beyond a period of even five years. It is by now well settled that the Limitation Act is attracted to the proceedings under the Act and the complaint has to be brought within the period prescribed thereby. Plainly enough in the present case, the complaint is hopelessly barred by time. The complainant-appellant''s plea that the Limitation Act should not be applied cannot be countenanced in the face of the binding precedents of the National Commission noticed above in ''M/s. Oswal Fine Arts v. M/s. II.M.T., Madras'' and ''Dr. Indira Sanghi v. Karnataka Electricity Board''. It has, therefore, to be held that the complainant-appellant must fail on the preliminary bar of limitation in the present case.

In view of the aforesaid discussion, this appeal must fail and the dismissal of the complaint up-held though on grounds other than, that given in the order under appeal. The same is hereby dismissed without any order as to costs.

ERE we part with this order, we cannot help shedding a judicial tear in the piteous plight of the appellant. Indigent to the core, simple and illiterate, he is perhaps typical of a large majority of the consumer-populace, of our country, who prior to the coming in force of the Act had virtually no remedy or redress. On his showing he has come a thousands kilometers from his home town of village Gada Raja in Uttar Pradesh to Rohtak in order to eke out a living for his family. Undoubtedly he sent Rs. 500/- only from the earning by the sweat of his brow to his ailing father in his home village. We have no manner of doubt that these never reached him and by now the old man has died making it virtually impossible for the appellant to establish that he had not received the money and the purported thumb mark on the postal document upon which the respondent''s rely were not those of his deceased father. Undoubtedly the cause of action accrued to the appellant well-nigh six years ago when there was no Consumer Redressal Forum to which he could resort. Apparently ill-advised and misguided he had for the last six years run from pillar to post in other areas to secure justice which has eluded him just like a mirage. By the time he has come to knock at the door of the consumer jurisdiction the inflexible rules of limitation face him like a stone-wall. We have the deepest sympathy and compassion for the appellant, but perhaps in his case the old adage Too Little Too Late. Appeal dismissed.