Civil Procedure Code (CPC)

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The Supreme court in General manager  TELECOM  vs  KRISHNAN and ANR (2009 (5) CTC p 62)  has ruled that when there is a special remedy provided in section 7 B of Indian Telegraph act then remedy under Consumer protection act is by implication barred. I would like to preface this discussion on the question relating to the jurisdiction of the Consumer Forum with respect to other laws.

Section 3 of the Act provides that “ the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”.

It means that the machinery under the Act is an additional machinery for redressal  of the grievances that may be available in addition to those available under other statutes or under general provisions of law. Therefore, it cannot be stated that by reason of Section 7-B of the Indian Telegraph Act there is an ouster of jurisdiction of the Consumer Disputes Redressal Forum. There is no ouster at all. Section 3 of the Consumer Protection Act makes it clear that it is an addition and not an ouster

 

The court has also ruled that Telegraph Act is a special law, its provisions would prevail over a general law like Consumer Protection Act, 1986.

With due respect I would submit that The Consumer Forum established under the Consumer Protection Act, 1986 was specially enacted to protect the interest of consumers ,it is a canopy legislation covering all goods and services. It does not exercise jurisdiction upon each and every matter, rather the jurisdiction of the Consumer Forum can be invoked only on the matters and disputes where the consumer element is involved. So when a dispute where the rights of the consumers are to be adjudicated there only the consumer forums , specially enacted for the said purpose, have the jurisdiction and all other Forums fall subordinate to it. Therefore the Consumer Protection law is not a general law, but a special law enacted for the better protection of the interests of the consumers. Where there is a deficiency in service and unfair trade practice, the provisions of the Consumer Protection Act, 1986 can be invoked irrespective of any other statute dealing with the same matter. The remedy under the Consumer Protection Act is an additional and special remedy.

It is well settled that when a statute is susceptible  of two or more interpretation normally the interpretation one favoring the consumer is to be taken. Since it is a beneficial enactment it should be given liberal interpretation .The sruti principle of  mimansa rules of interpretation and the Maxwell interpretation lay down that when once the intention is plain it is not the province of the court to scan its wisdom or its policy. Its duty is not to make the law reasonable but  to expound it as it stands ,according to the real sense of words.

In STATE OF PUNJAB AND ANOTHER, VERSUS PREM SUKHDAS ETC.(1977-AIR (SC)-0-1640)it was held -The principle that where a provision 'is capable of one of two interpretations, the interpretation which validates rather the one which may invalidate a provision applies where two views are possible. It cannot be pushed so far as to alter the meaning of the clear words used in an enactment and to repeal statutory provisions by making them useless without holding them to be void.

 

The Supreme court in Indian Photographic co vs H.D Shouries(1999-SCC-6-428) remarked that the various enactments such as the Contract Act, the Standards of Weights and Measures Act, the Motor Vehicles Act, the Monopolies and Restrictive Trade Practices Act, Food Adulteration Act etc. were found to be inadequate in providing the relief to the consumers. In discharge of the international obligations and to protect the interest of the consumer in the country, the Consumer Protection Act, 1986 was enacted .The reference to the consumer movement and the international obligations for protection of the rights of the consumer, provision has been made herein with the object of interpreting the relevant law in a rational manner and for achieving the objective set forth in the Act. Rational approach and not a technical approach is the mandate of law.

 

The Consumer Protection Act, 1986 is a Special Law. Of course, Indian Telegraph Act also is a special Law. But, between the said two Special Laws, the Consumer Protection Act is more Special so far as the disputed question is concerned, because the Indian Telegraph Act deals with all aspects of telephone system and apparatus, whereas the Consumer Protection Act deals only the dispute raised by the consumer as to the services rendered to them. Therefore, Consumer Protection Act is more Special between the two. Applying the settled principle that Special Law will prevail over the ’general’, the machinery set up under the Consumer Protection Act, 1986 to resolve the consumer disputes will prevail over Section 7−B of the Indian Telegraph Act.

 

In MARUTI UDYOG LTD vs RAM LAL AND OTHERS  (2005-SCC-2-638) the  apex court ruled that - In construing a legal fiction the purpose for which it is created should be kept in mind and should not be extended beyond the scope thereof or beyond the language by which it is created. Furthermore, it is well-known that a deeming provision cannot be pushed too far so as to result in an anomalous or absurd position. The Court must remind itself that the expressions like "as if" is adopted in law for a limited purpose and there cannot be any justification to extend the same beyond the purpose for which the legislature adopted it. The Consumer protection Act contains a non-obstante clause. It is well-settled that when both statutes containing non-obstante clauses are special statutes, an endeavour should be made to give effect to both of them. In case of conflict, the latter shall prevail. The consumer protection Act is a latest Act enacted in the year 1986 and therefore it prevails .

SARWAN SINGH AND ANOTHER, VERSUS KASTURI LAL, (1977-AIR (SC)-0-265 1977-SCC-1-750)

For resolving such inter se conflicts, one other test may also be applied though the persuasive force of such a test is but one of the factors which combine to give a, fair meaning to the language of the law. That test is that the later enactment must prevail over the earlier one. The later act is to be obeyed, and if obedience cannot be observed without derogating from the first ,it is the first which must succumb.

Sec.7-B of Indian Telegraph Act provides arbitration for settlement of disputes.   The section spells out that except as otherwise expressly provided in the Act, if any dispute concerning any telegraph line, appliance arises between the telegraph authority and the person or whose benefit the line, appliance or  apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specifically for the determination of the dispute or generally for the determination of disputes under this section.   The award of the arbitrator appointed shall be conclusive between the parties to the dispute and shall not be questioned in any court. 

The Apex court in FAIR AIR ENGINEERS PVT. LTD. AND ANOTHER vs N. K. MODI (1997-AIR(SC)-0-533: 1996-SCC-6-385) held that  - The  consumer protection Act, intends to secure inexpensive and expeditious consumer service. 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. 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. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings. Moreover, in case of petty consumer disputes, to direct a consumer to approach the telegraph Department for appointment of an Arbitrator for the adjudication of a small dispute, would be a just denial of justice to him especially when the legislature has enacted a consumer friendly legislation for better protection of the consumer rights.

 

The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 has been enacted to provide for the institution of provident fund, pension and deposit linked insurance funds for employees working in factories and other establishments.

 

The Employees provident fund Act empowers the provident fund commissioner to hold an enquiry to determine the amount due from an employer. The supreme court in REGIONAL PROVIDENT FUND COMMISSIONER VERSUS SHIV KUMAR JOSHI (2000-AIR(SC)-0-331; 2000-SCC-1-98 ) the supreme court while considering the scope of Section 2(1)(o) of the Consumer Protection Act, held that the statutory authority not vested with sovereign function while discharging its statutory function provides service and would be liable under the Act in case of any deficiency.

 

The remedy of approaching the Company Law Board constituted under Section 10(E) of the Companies Act under the provisions of Sec 45-QA (2) of the Reserve Bank of India Act is in addition to the remedy available under the Consumer Protection Act. A depositor may approach either the Consumer forum or the Company Law Board under Sec 45-QA (2) read with sub-section (9) of section 58-A of the Companies Act for there is no apparent “exclusion of jurisdiction” of consumer forums for entertaining a dispute at the behest of a depositor

 

The Regulation for Consumer Grievance Redressal forum and Electricity Ombudsman 2004 makes provision for Electricity Consumer grievance Redressal Forum(inbuilt dispute settlement mechanism in the Electricity Board) for adjudication of disputes .Section 42(8) of the Electricity Act 2003 saves the right of the consumer to approach any other forum such as the Forum constituted under the Consumer protection Act 1986.

 

SATPAL MOHINDRA  VERSUS SURINDRA TIMBER STORES (1999-SCC-5-696)- has specifically held that the provisions of the Consumer protection Act are required to be interpreted as broadly as possible. It has jurisdiction to entertain a complaint despite the fact that other Forum/courts would also have jurisdiction to adjudicate upon the matter.

 

The most important of which is a Full Bench decision reported in AIR 2000 –SC- 2008 "Skypak Couriers Ltd. v. Tata Chemicals Ltd. "it was observed  as follows -Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force"


                                                           

K.SURESH BABU

M.A.(CRIMINOLOGY)M.A.(DEFENSE STUDIES)M.A(LABOUR STUDIES)B.L.

14/28,VINCENT COLONY,WILLIAMS ROAD,CANTONMENT

TRICHY-620001


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