Safeguarding Consumer Interests

SANJOG MAHESHWARI

C-1-A/42 B M.I.G. FLATS

                                                                                                                JANAKPURI, NEW DELHI.

                                                CONSUMER IS NOT THE KING!

                                                                                                                -SANJOG MAHESHWARI

              Not long ago, in a consumer case, taking cover under Article 227 of the Constitution, ICICI Bank managed to obtain a stay order from the Hon’ble Delhi High Court on the order passed by the Hon’ble State Consumer Commission who had asked it to pay Rs 55 lakh to an aggrieved consumer as punitive damages for its act of employing goons to recover money from him who had taken loan from the bank.  In the process, the goons employed by the bank as recovery agents, bashed up and inflicted grievous injuries on the driver of the car- a friend of the consumer besides seizing the vehicle from him.

              Article 227 confers on the High Court the Power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) and (3) of the Article invest it with the power to make rules, prescribe forms and settle the tables of fees to be allowed to the workers, officers, practicing advocates, attorneys and pleaders of such courts as may be under its jurisdiction exercisable in a manner not inconsistent with the provisions of any law for the time being in force, and shall require the previous approval of the Governor.” (Emphasis provided)

              The apparent intention here seems to keep the proceedings and justice delivery mechanism of Consumer Courts, or for that matter other such specific purposes courts conceptualized, created and subjected to functioning under the provisions of specific purpose legislation, free from the corruption-contaminated civil court culture- a Raj legacy.  While there are multiple reasons that made way for this culture to seep-and that too in a very big way and substantially- in the working and system of the consumer courts that function under Consumer Protection Act and Rules as well, the main culprit is the presence of advocates and lawyers in these courts whose main claim to fame and fortune lies in employing dilatory tactics, seeking frequent adjournments and exploiting technicalities and loopholes in a legislation to purposefully evade and/or avoid imminent court decisions not favouring their rich and powerful clients. The ICICI case cited above is not an exception. While the above example is just illustrative and by no means purported to be an exhaustive one and there are technicalities galore frequently employed to snub genuine consumer interests in every consumer fora as well all over the country, it invariably happens every time some Mighty and Powerful is involved in a consumer dispute- and they involve too frequently to the comfort of the poor, middle-level consumers pitted against them for the very obvious reasons that more than 80% of the Services are provided by giant organizations whether in Public Sector or in Private Sector for whom the rule of law does not seem to exist. Those who are Somebody do not need courts of law as their interests are automatically taken care of without requiring them even to lift their little finger.

              Further, Section 21 of the Consumer Protection Act, 1986 (as amended up to date), inter-alia,  prescribes that the National Consumer Commission shall have the jurisdiction to entertain  appeals against the orders of any State Commission, and call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Besides this u/s 24 B, ibid, it also exercises administrative control over all the State Commissions in certain matters.

It would thus appear that while the power of superintendence of all courts and tribunals functioning in the territory of its jurisdiction is vested (confined to prescribed areas) in the High Court, the National Commission has, inter-alia, the exclusive jurisdiction to entertain appeals against the orders of any State Commission.

              In the matter cited above, it appears that the lawyers of the bank- a giant banking institution which can easily afford the luxury of employing legal brains expert in exploiting the  technicalities and loopholes in the law- have somehow managed to mislead the Hon’ble High Court on at least three counts: (1) By confusing the  award granted to the complainant against the bank by way of compensation /punitive damages for the loss and injury u/s 14 (d) and (f) with that of imposition of penalties under section 27 of the Consumer Protection Act; (2) By arguing that the occupant of the car, the bank’s goons had bashed ( mistaking him for the consumer himself, a case of mistaken identity), was not the consumer himself but his friend only, and, therefore, the consumer not eligible for any compensation and (3) With regard to the jurisdiction.

              Without going into the nitty gritty of the laws and other issues involved in the matter, it would be pertinent to scan the method of the lawyers of the ICCI Bank in procuring the stay order from the High Court by invoking its supervisory jurisdiction under Article 227.  Whereas the power to control and regulate the working of such courts, granted to the High Court under the said Article is conditional in so far as  the exercise should (a) not be inconsistent  with the provision of any law for the time being in force, and (b) shall require the previous approval of the Governor.”, appeal against the decision of a State Commission u/s 21 of the CPA lies exclusively with the National Commission which, as pointed out above, which u/s. 24B ,ibid, also exercises administrative control over all the State Commissions in certain matters. Here the Administrative control is not subject to any conditions. High Court’s power of superintendence seems to be general in nature and is mainly about making of rules, prescribing of forms and settling the tables of fees to be allowed to the workers, officers, practicing advocates, attorneys and pleaders of such courts as may be under its jurisdiction. Read together in conjunction and not in isolation, the above said provisions of the Article and the Act seem to put the grant of stay on any case decided by any consumer fora in consumer matters beyond the jurisdiction of the Hon’ble High Court. Only the Hon’ble Supreme Court has been empowered to entertain an appeal against an order made by the National Commission u/s 23 of the CPA.

Even if for argument’s sake, it is presumed that the High Court, in fact has the proper and necessary jurisdiction in all consumer matters and is vested with the power to grant stay on the orders of each and every consumer fora right from the District Forum to the National Commission, would it not be more desirable and in the interests of the consumers, an otherwise a hapless lot, if such a power is sparingly exercised only where the settled principles of law have been disturbed by some such  order and certainly not in cases where a grossly aggrieved consumer is sought to be deprived of his rightful compensation by employing the devious technicalities and loopholes in the law? (In this particular case, however, it would appear, that in fact there were no loopholes in the law as such, but were created by the wily lawyers of the bank and, the Hon’ble High Court was taken for a ride, just to deprive the aggrieved consumer of his right to punitive damages/compensation and absolve the banker of their liability to pay it to him).

  In consumer matters the spirit of the law and the orders passed in consonance with it should be honoured more than the technicalities or the dead letters of the law, if at all we want to minimize the trauma which the consumers invariably experience when they are pitted against the unscrupulous corporate giants- “Sharks”, “Dons” and “Kings” of industries, services and business both in the public and private sectors who, aided and abetted by the wily lawyers on their pay-rolls, do not think twice in short-changing gullible consumers.

                                                                                                                -SANJOG MAHESHWARI

 

C1-A/42 B M.I.G. FLATS,

JANAKPURI, NEW DELHI-110058.