R.P. SINGH vs JANTA STORE

Justice V.K. Mehrotra, President

THIS appeal has been filed by Sri R.P. Singh who is complainant in Case No. 587 of 1991 which is at present pending before District Forum, Lucknow. The appeal arises in the following circumstances. The complainant-appellant purchased 2 Kgs. of ''Chana Daal'' from Janta Stores situated in the office compound of Chhetriya Adhikari, U.P. Khadya Avam Awashyak Wastu Nigam, Lucknow, on September 4, 1989. The ''Daal" according to him, was substandard and he made a complaint about it to the Chairman of the Nigam the same day. Thereafter, he filed a complaint before District Forum on September 5, 1989. The District Forum asked him to file an affidavit which he did on December 29, 1989. The complainant asked for compensation in the sum of Rs. 5,000/-. The District Forum decided the case by its order dated January 31, 1990 and awarded a sum of Rs. 100/- with interest at the rate of 18% per annum from the date of the decision to the date of actual payment.

Feeling aggrieved by the meagre amount awarded as compensation, the complainant filed Appeal No. 114/SC/90 on March 2, 1990. The appeal was rejected ex parte by order dated 21.8.90 for want of prosecution as the appellant could not appear before the State Commission on account of his illness. The application for the restoration of the appeal was also dismissed. The matter was taken to the National Commission by the appellant which remanded the appeal for hearing on merits to the State Commission. When the appeal came up for hearing before the State Commission, after its remand by the National Commission, the appellant made an application for impleadment of two more parties as respondents in the appeal, namely (1) Kraya Adhikari Karyalya (2) Bikarya Adhikari Karyalya. This application was disposed of, along with the appeal itself, by the State Commission on October 24, 1991 inter alia, with the observation "When the appeal came up for hearing the appellant moved an application for impleadment of two parties detailed in the application. "On the application we have heard the parties. Normally such an application should have been moved before D.F., Lucknow. However, in the interest of justice we accept the prayer of the appellant to implead the said parties by amending the complaint so that they may have an opportunity to contest the case of the complainant. For the reasons stated above, we set aside the order of D.F., Lucknow dated 31.1.90 in Case No. 433 of 1989 and remand the case to D.F. Lucknow for rehearing of the case. Parties are directed to appear before D.F. Lucknow on 25.11.1991."

IT may be mentioned at this stage that in the appeal there were already three Opposite Parties, namely. Opposite Party No. 1 (Janta Store), Opposite Party No. 2 (Chhetriya Adhikari, U.P. Rajya Khadya Awam Awashyakya Wastu Nigam), and Opposite Party No. 3 (Chairman, U.P. Rajya Khadya Awam Awashyakya Vastu Nigam) on whose behalf Sri Bhanu Prakash Dubey, Advocate was present before the State Commission on October 24, 1991. The matter is now pending before the District Forum, Lucknow on account of the aforesaid order of the State Commission. The District Forum, in its order dated 20.1.93, has taken the view that Opposite Party No. 1 (Janta Store) could contest the matter only on the question of quantum of compensation and not on merits because inspite of service of notice upon it the Janta Store did not appear before the District Forum earlier and ex parte order was passed against it on 31.1.90. Also, that Chhetriya Adhikari and the Chairman of U.P. Khadya Awam Awashyakya Vastu Nigam had been impleaded as Opposite Party Nos. 2 and 3 for the first time when Appeal No. 114/SC/90 was filed before the State Commission. As such, they were entitled to contest the case even on merits and to file their written statements. All the three Opposite Parties were permitted to file written statements accordingly on payment of Rs. 100/- by way of costs. It is this order which is under challenge in the present appeal.

SRI R.P. Singh has urged that SRI Bhanu Prakash Dubey was not an authorised agent on behalf of Opposite Parties and was appearing without any authority on their behalf. The Commission has been informed by SRI Bhanu Prakash Dubey that he is Standing Counsel and Advisor to the U.P. State Food and Essential Commodities Corporation for the past five years and gets an amount by way of retainership per month. He has also stated that he had been appearing on behalf of the Corporation before the State Commission and the National Commission. The District Forum, in its order dated 17.8.92, when called upon to do so, has said that it did not appear from the record that SRI. B.P. Dubey Advocate had filed any written authority or Vakalatnama before the State Commission but by conduct he was the recognised agent of the three Opposite Parties. The fact that he had appeared before the State Commission on behalf of the three Opposite Parties finds a mention in the order dated October 24, 1991 also. Under U.P. Upbhokta Sanrakshan Niyamawali, 1987, parties or their authorised agents are required to appear before the District Forum or the State Commission. Rule 2(b) defines an agent to be a person who is duly authorised by a party to appear on his behalf before the District Forum or State Commission. Such authorisation, it is obvious, should be in writing. Else, it may become difficult for the District Forum or State Commission to ascertain the authenticity of a claim that a particular person was the duly authorised agent of a party. In the present appeal, however, it is not be of much practical importance because we find an authorisation in favour of Sri. B.P. Dubey, Advocate in writing for appearance on behalf of the Nigam. It was placed on the file of the appeal on January 3, 1994 as per the endorsement thereon. The principal question for our determination is about the scope of the order of remand made by the State Commission on 24th October, 1991. The relevant portion of that order has been quoted earlier. In its operative part the order clearly says that order of District Forum, Lucknow dated 31.1.90 was being set aside and the case was being remanded to the District Forum for rehearing of the case.

THE District Forum is right in its view, in the order under challenge in this appeal, that as far as Opposite Party No. 1 (Janta Store) was concerned it could only be heard on the question of quantum of compensation and not on merits because it had failed to appear before the District Forum earlier in spite of notice having been served upon it. Its view that Opposite Parties Nos. 2 and 3 who had been impleaded for the first time at the appellate stage, in Appeal No. 114/SC/90, were entitled to file their version before the District Forum even on merits is unexceptionable in law. It is also consistent with principles of natural justice. THE intendment of the provisions contained in Section 13 of the Consumer Protection Act, 1986 providing for the procedure to be followed on receipt of a complaint clearly is that a party against whom a complaint is made would get an opportunity to give his version of the case before a decision adverse to him is taken. In respect of Opposite Parties Nos. 2 and 3 such opportunity was not available when the complaint was initially filed by the appellant making only the Janta Store as sole Opposite Party therein. We are, therefore, of opinion that the appellant is in error when he urges that these Opposite Parties could not be given an opportunity of placing their version before the District Forum which is now hearing the case afresh. THE contention of the appellant that in its judgment of October 24, 1991 me State Commission had only set aside the operative part of the order dated January 31, 1990 is based upon a misapprehension in law, if it is sought to be convassed that the findings recorded in the order couldn''t be assailed on merits even by such parties which were not before the District Forum at that stage.

IT is difficult to accept the plea that the present proceedings before the District Forum are without jurisdiction because the District Forum had chosen to permit the two Opposite Parties, which were joined as Opposite Parties for the first time in the appeal filed by the present appellant against the order dated 31.1.90 and were not made Opposite Parties by him when he had filed the complaint initially, to file their version on merits. The next submission of the appellant mat suitable compensation be awarded to him against Janta Stores, as also Opposite Parties Nos. 2 and 3 (Chhetriya Adhikari and Chairman respectively of U.P. Khadya Awam Awashyakya Nigam), merits no consideration in this appeal as the matter is at large before the District Forum and will be gone into by it.

The appeal is dismissed but parties are left to bear their own cost.

COPIES of this decision may be made available to the parties in accordance with Rules. Appeal dismissed.