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Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     05 July 2010

CONSUMER COURT need NOT follow Evidence Act or C P Code

Dear All,


Under the Consumer Protection Act (CPAct),  IT IS NOT mandatory to follow the provisions of the Evidence Act or the Civil Procedure Code (CPC)  AND must merely observe the principles of natural justice, devoid of all technicalities.   Hence, disputes have to be tried in a summary manner,  and not DELIBERATELY CONFUSE the case of the CPAct,  with routine judicial technicalities..

 
Keep Smiling .... Hemant Agarwal

 

CONSUMER COURT need NOT follow Evidence Act or CP Code

 

‘Consumer fora must eschew technicalities’
(reproduced from Times of India, dated 05-07-2010, Mumbai edition, page no. 05)


SUBJECT  :
Evidence act is not applicable to the consumer fora : SC
There is no need to file a detailed affidavit; even a short affidavit would suffice.


BACKDROP  :
The avowed objective of the Consumer Protection (CP) Act was to afford speedy and affordable justice to consumer, shorn of technicalities, so that consumers would be able to argue their complaints in person without the need of engaging an advocate. It is because of this reason that the Act does not provide any formats for complaints or applications. The Supreme Court has said that technicalities require to be eschewed by the consumer fora and the National Commission has observed that even a letter can be treated as a complaint.


   Unfortunately, over the years, the consumer fora are losing sight of the intent and purpose of the Act are often becoming hyper-technical. Some of the retired judges who preside over the consumer fora try to bring in technicalities which they have practised all their lives in the civil courts, and thereby frustrate the consumer movement.

 

   Here are some judgments which will illustrate how consumer fora should follow a simple procedure, merely observing the principles of natural justice, devoid of all technicalities.


CASE STUDY  1:
In the case of S P Aggarwal v/s The Sanjay Gandhi Post Graduate Institute of Medical Sciences, Lucknow (FA No. 478 of 2005 decided on March 31, 2010), the National Commission was required to decide whether the proceedings under the CP Act required a detailed affidavit to be filed in accordance with the provisions of the Civil Procedure Code (CPC), or a short affidavit would suffice.


   Aggarwal had filed a complaint before the UP State Commission alleging medical negligence. The State Commission dismissed the complaint because the affidavit filed by the complainant was very short and not in accordance with the provisions contained of Order XIX of the CPC. In appeal, the National Commission observed that the provisions of Order XIX of the CPC cannot be strictly applied to the proceedings before the consumer fora. It held that the State Commission had taken a hyper-technical view in rejecting the affidavit as it had not been prepared in accordance with the provisions of the CPC and the annexures filed along with the affidavit had not been not dealt with in detail as required under the CPC. The National Commission held that the affidavit and the documents filed by the complainant were entitled to due consideration on the basis of the intrinsic value of the documents filed.


   After considering the evidence, the National Commission held that the complainant had established medical negligence and for this he was awarded a compensation of Rs 1 lakh.

 

CASE STUDY  2:
In the case of Consumer Education & Research Society & Anr v/s New India Assurance Co Ltd & Ors [I (2008) CPJ 317 (NC), the National Commission held that an over-technical view should not be taken by the fora. A consumer complaint can even be filed by the parent of an aggrieved person or his Power of Attorney holder. A complaint alleging defect in goods or deficiency in service can be entertained on receipt of a letter stating sufficient facts and the cause of action. Technicalities are not to be encouraged because the only procedure prescribed under the Act is to follow the principles of natural justice and to decide the matter after hearing both the parties. The National Commission rued that unfortunately this aspect has been forgotten and some fora still erroneously try to adhere to the procedure prescribed under the CPC or elsewhere.

 

CASE STUDY  3:
In the case of Malay Kumar Ganguly v/s Dr Sukumar Mukherjee & Ors [III (2009) CPJ 17 (SC), the Supreme Court observed that even though the proceedings under the CP Act are judicial proceedings, they are not civil courts. Hence, disputes have to be tried in a summary manner, following the principles of natural justice, and the provisions of the Indian Evidence Act are not applicable to the consumer fora.


IMPACT
Unnecessary technicalities deter an individual consumer from approaching the consumer fora, thereby frustrating the objective of CP Act. It is hoped that those presiding over the consumer fora make the environment conducive so as to encourage individual consumers to appear in person.



 14 Replies

Daksh (Student)     05 July 2010

Dear Hemant,

Kudos for compiling such a presentable info.  Keep up the good work going.

Best Regards

Daksh

N.K.Assumi (Advocate)     05 July 2010

Thanks Hemant.

N.K.Assumi (Advocate)     05 July 2010

Thanks Hemant.

NMP (nmp)     05 July 2010

Hemant'ji

Many many thanks for the very very informative info  and your own comments worth every word of it.

nmp

 

DR.SANAT KUMAR DASH (Eye Specialist)     05 July 2010

DEAR            HEMANT         JI,

                                                           MANY          MANY         THANKS..............................................................................2        YOU                  FOR         THE                 VERY              IMPORTANT           INFORMATION             WITH                     SUPREME            COURT            CITATION.

eswarkumarpotti (wo incharge legal cell)     05 July 2010

Thanks for posting such valuable citation by SC not mandatory to follow evidence act and CPC while adjudicating matters before forum.this is most informative to all practicing advocates in consumer forums. Thanks once again.

anitha Gutti (Advocate)     24 October 2010

It is a very good information, thanks for explanation with good examples...........

valentine (Advocate)     31 October 2010

Consumer Courts should dispose of case without much fuss and facilitate speedy justice. However, the situation is contrary to this principle. Cases are delayed and consumers are harassed. Few successful cases are reported in the newspaper to highlight the good work of the Consumer Courts. However, cases generally languish unless the consumer has pull and push. The Consumer Act says that for all purposes Consumer Court will be a Civil Court and shall exercise all jurisdiction and powers of the Civil Court. It will be a Civil Court and its awards will be considered as civil orders or decrees. CPC takes precedence over all laws and wherever there is a confusion civil provisions are referred as a guideline.

Sanjay Gowda (Practising_Advocate)     06 November 2010

Thanks for sharing such an valuable information!!!!!!!!!1

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     04 March 2011

5 cr for Aussie crippled by fall in Delhi hotel pool
(times of india, mumbai edition dated 04-03-2011 @ page no. 01)


New Delhi: In one of the highest damages awarded to an individual by an Indian court, the Delhi high court on Monday granted nearly Rs 5 crore as compensation to an Australian swimmer who became paralyzed from the waist down after slipping in the swimming pool of an ITDC hotel in the capital 33 years ago.


Susan Leigh Beer was 18 when she slipped on the algae-lined floor of the swimming pool at Akbar Hotel after she jumped into its shallow end. The accident gave her a massive gash in the head, and crippled her for life.      Responding to the court order from her home in Australia, Susan told TOI, “It’s been a frustrating, difficult and long struggle for us all. Let us pray this will be the end of this nightmare.”

HOW WAS IT CALCULATED:
Holding the Indian Tourism Development Corporation Ltd, which managed the hotel, guilty of negligence, Justice B D Ahmed said Beer was entitled to Rs 1,82,00,000 with simple interest at the rate of 6% per annum from January 22, 1982 till the date of the decree, and future simple interest at the rate of 10% a year till its realization—a sum of roughly Rs 5 crore.
  


ITDC’s plea of victim’s    negligence rejected

New Delhi: Thirty-three years ago, 18-year-old Susan Leigh Beer, a member of the Queensland polo team, had come to India on holiday with her parents and brother. During that trip, a jump into a pool at an ITDC hotel in Delhi left her paralyzed after she slipped on its dirty floor. On Thursday, the Delhi HC awarded Beer roughly Rs 5 crore in damages. “It is clear that it was on account of the defendant’s (ITDC) negligence that the floor of the swimming pool was slippery due to which the plaintiff suffered injuries,” the bench said. It took into account that Susan became quadriplegic after receiving head and spinal cord injuries. Her case was pursued by the Australian legal aid services which hired senior advocate Madan Bhatia and Anup Kumar Sinha to argue their case in Delhi.

 

DAMAGES CALCULATION
The court calculated Rs 50 lakh towards damages for physical pain, mental and psychological anguish and loss of education, and Rs 1.27 crore on account of damages for loss of earnings for the rest of her life. It rejected ITDC’s plea that she suffered injuries due to her own negligence. “She merely jumped into the pool in the shallow end as she may have done on hundreds of occasions, being a person more than accustomed to swimming and one who had spent hundreds of hours in and around swimming pools,” it said. TNN
 

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     01 September 2013

SUBJECT:
Bank and its officers held personally liable for misrepresentation in sale of flat.
Background: Officials of banks and PSUs fail to improve their attitude and are not perturbed by litigation, as they feel that it is the organization which will be held liable while they will go scot-free. Dealing this complacent attitude a major blow, the South Mumbai Consumer Forum has held bank officials liable jointly with the bank of deficiency in service and unfair trade practice.


CASE STUDY:
The Greater Bombay Co-operative Bank had acquired a flat in a building at Murbad in Kalyan under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Ordinance. In its advertisement issued in a local newspaper, the bank announced the auction sale of this flat, representing that the built-up area was 360 sq ft and the expected price as Rs 3,29,000. Sanjay Pendurkar successfully bid for the flat, which was then sold to him for Rs 3,29,000. The bank’s authorized officer executed a sale deed in Sanjay’s favour and handed over all the relevant documents to him on November 30, 2010.


Soon after taking possession, Sanjay had the flat measured and found that its carpet area was only 195 sq ft, while its built-up area was 234 sq ft. He promptly sent a letter on December 8, 2010, requesting the bank to cancel the sale and return the amount paid by him. The bank ignored Sanjay’s letter.


A few months later, on March 6, 2011, Sanjay came across an advertisement in Nav Shakti newspaper for the auction sale of the same flat. The only difference was that the builtup was stated to be 222 sq ft, for which the expected price was Rs 2,22,000. Sanjay had a legal notice issued to the bank for the intentional misrepresentation of flat’s area, thereby inducing him to pay Rs 1,07,000 more, under the wrong impression that the size of the flat was larger. The bank ignored the notice as well as a subsequent reminder.


Apprehensive that the bank would continue with the auction and evict him forcibly so that it could hand over the flat to whoever would succeed in the fresh auction, Sanjay filed a consumer complaint before the South Mumbai District Forum, against the bank, the manager of its Bhuleshwar branch and its authorized officer. The forum served a notice, yet the bank and its officials did not care to appear or file their reply.


The forum compared the two advertisements issued by the bank for the auction of the same flat. In its ex parte order of June 29, 2013, delivered by presiding officer S M Ratnakar on behalf of the bench, along with S S Patil, the forum observed that the first advertisement stated the built-up area to be 360 sq ft, while the subsequent one stated it was 222 sq ft. The forum concluded that the bank had made a misrepresentation about the area and had overcharged Sanjay. Comparing the expected price advertised by the bank in the two advertisements, the forum found the difference to be Rs 1,07,000. It held that the bank as well as its officials were guilty of deficiency of services and unfair trade practices.


Accordingly, the forum held the bank, its Bhuleshwar branch manager Karadikar and authorized officer Rajesh Gujar jointly liable to a refund Rs 1,07,000, along with 9% interest from the date of the sale certificate till its refund. Additionally, costs of Rs 5,000 were awarded to Sanjay. The forum also held that the issuance of a notice for a public auction without cancellation of the sale certificate would constitute an encroachment on Sanjay’s right and title to the flat. It, therefore, permanently restrained the bank and its officers from dispossessing Sanjay from the flat.


IMPACT:
The forum judgment holding the officials liable should shake up complacent officials and hopefully bring about an attitudinal change.

====

 

FOR THE LARGER INTEREST OF THE "CONSUMER", THE ORDER OF THE "CONSUMER COURT", IS  "ATTACHED HEREWITH".    Please download for study.

 

Keep Smiling .... Hemant Agarwal


Attached File : 283165567 bank employees liable - consumer court.pdf downloaded: 48 times

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     01 September 2013

CASE STUDY  3:
In the case of Malay Kumar Ganguly v/s Dr Sukumar Mukherjee & Ors [III (2009) CPJ 17 (SC), the Supreme Court observed that even though the proceedings under the CP Act are judicial proceedings, they are not civil courts. Hence, disputes have to be tried in a summary manner, following the principles of natural justice, and the provisions of the Indian Evidence Act are not applicable to the consumer fora.

 

Dear All,

The SC judgement, mentioned in the above case strudy -3, is attached herewith.  Please download for reference.

 

Keep Smiling .... Hemant Agarwal


Attached File : 283165567 malay kumar ganguly vs sukumar mukherjee ors. on 7 august 2009.pdf downloaded: 71 times

surjit singh (Assistant)     04 September 2013

It is a valuable information for person who generally hesitate to approach the consumer court fearing the technicalities of evidence act and code of civil procedure. I appreciate this efforts. Thanks.

BASANT AGRAWAL (PROP)     05 May 2015

i want registerd complaint in distri consumer court,but some documentry evidence held by opposite party such as my application form 

 


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