JUDGMENT
1. The petitioner has challenged the legality and validity of the order passed by the first respondent-the Karnataka State Consumers’ Disputes Redressal Commission (for short ‘Redressal Commission’) urging various legal contentions.
2. Certain undisputed facts necessary for examining and considering the rival contentions of the parties are stated as hereunder.-
The 2nd respondent herein filed a complaint under Section 7 of the Consumer Protection Act, 1986 (for short “Act of 1986”), before the first respondent claiming reimbursement of Rs. 5,25,237.55 towards the value of the consignment together with another sum of Rs. 4 lakhs towards loss of interest and loss of reputation suffered by the company due to deficiency of service attributable to the petitioner and others who were made as respondents in the complaint. The first respondent-Re-dressal Commission following the procedure laid down under Section 19 read with the Karnataka Consumer Protection Rules, 1988 served notice upon the petitioner in the complaint, who after engaging a lawyer filed statement of counter and took up a preliminary objection that the first respondent has no jurisdiction to entertain the complaint. According to them the 2nd respondent-complainant was not a ‘consumer’ in terms of the definition of Section 2(d) of the Act, 1986 and sought for rejection of the complaint. Thereafter, an enquiry was conducted in accordance with the provisions of the Act and Rules referred to supra. The 2nd respondent filed an affidavit of its manager and the affidavit of its partner-
Srinivas Shenoy, S.B. respectively vide Exs. C-1 to C-97 in their evidence. The petitioner neither adduced evidence nor produced documents. Not even an application filed seeking permission of the Forum to cross-examine the manager and partner of the 2nd respondent-Company. The Redressal Commission after examining the evidence on record with reference to the preliminary objection and also the plea of the complainant that there was deficiency in the service rendered by the petitioner, placing reliance upon the judgment of the National Commission in Synco Textiles Private Limited v Economic Transport Organisation, has passed the impugned order directing the petitioner to pay a sum of Rs. 5,75,237.55 towards the value of the goods in 22 consignments with interest at 18% per annum from 10-7-1992 till the date of its payment to. the complainant with costs of Rs. 2,500/- towards the proceedings before the Forum. The legality and validity of the said order is challenged in this writ petition.
3. Smt. Vaishali Hegde, learned Counsel appearing on behalf of the petitioner placing reliance upon the judgment of the Apex Court in the case of United Commercial Bank Limited v Their Workmen, contended that enquiry was conducted and arguments were heard by two members of the Redressal Commission but the impugned order was passed by three member of the Redressal Commission, that the 3rd Member who has not heard the matter has signed the impugned order and influenced the other two member. It is contended that vatidly constituted member under the provisions of the Act and Rules have not passed the impugned order, and hence the order is void ab initio. Learned Counsel for the petitioner prays for quashing of the impugned order.
4. The reliance placed upon by the learned Counsel for the petitioner on the judgment of the Supreme Court is at paragraph (13). In that case, the contention was that the order impugned therein was passed by a person who was ceased to be the Member of the Tribunal as on the date of passing of the award. The Supreme Court has held that when the service of a Member under Rule 5 of the Industrial Disputes Rules, 1949 ceases to be available to the Tribunal, the jurisdiction of the remaining members to continue the proceedings would affect the proceedings and as such the award passed by the said Tribunal was held to be invalid in law.
5. This Court has examined the correctness of the submission made on behalf of the petitioner keeping in view the provisions of Sections 12, 13, 14 and 18 of the Act and the Rules framed thereunder. Relevant portions of Rule 4 of the Rules which is applicable to the facts of this case is extracted as hereunder.-
“4. Place of sitting and procedure as to conduct of Meeting etc., of District Forum.-
(5) No act or proceedings of the District Forum shall be invalid by reason only on the existence of any vacancy in the office of member or any defect in its constitution”.
Section 13 provides for procedure to be followed by the District Forum on receipt of the complaint. Section 16 speaks of the composition of the State Commission comprising a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President and two other members, one of whom shall be a woman. Section 18 of the Act provides for procedure applicable to State Commissions which clearly states that provisions of Sections 12, 13 and 14 and the rules made thereunder are applicable for disposal of complaints by the District Forum.
6. In this case, the learned Counsel for the respondents has pointed out that the Rules of 1988 framed by the State Government are the procedure to be followed for the purpose of conducting enquiry proceedings. Learned Counsel for the petitioner did not dispute this. By reading sub-rule (5) of Rule 4 of the Rules 1988 extracted above answers the question raised by the learned Counsel for the petitioner.
7. I have examined the judgment of the Supreme Court rendered in the case referred to supra. The Supreme Court has rendered the judgment on the basis of the undisputed facts and with reference to Rule 5 of the Central Industrial Disputes Rules, 1949 which is not analogous to sub-rule (5) of Rule 4 of Rules 1988. In that case, to constitute a valid Tribunal, three persons were required, which is mandatory under Rule 4 of the Industrial Disputes Rules, 1949.
8. In the instant case, in view of sub-rule (5) of Rule 4, enquiry and proceedings, can be conducted by the State Consumer Forum either by the President alone or by the member and any vacancy in the State Forum shall not render the proceedings void ab initio in law. In view of the above said statutory rule, the enquiry and proceedings conducted by the State Commission consisting of two members are not void ab initio. Further, in the instant case it is an undisputed fact that two members had heard the matter. As on the date of the passing of the order, the 3rd Member was also appointed by the State Government following the procedure contemplated under Section 16 of the Act 1986, that was not the situation in the Apex Court case cited. In this view of the matter, the reliance placed upon the judgment of the Supreme Court referred to supra, has no application to the facts of this case. Therefore, contention that the 3rd Member who had not heard the matter, has influenced the other two members by signing the impugned order is without any substance and the said contention is rejected.
9. I have carefully gone through the order of the Redressal Commission with regard to the merits of the case. The said Commission on the basis of the evidence, documents and other material available on record and on proper appreciation of the same, has recorded a finding of fact that there was deficiency in the service rendered by the petitioner to the 2nd respondent. The learned Counsel for the petitioner is unable to show that the said finding is erroneous in law either for want of evidence, or on the ground that the said finding was not supported by valid and cogent reasons. The petitioner had neither adduced evidence nor
produced documents much less challenged the evidence adduced on behalf of the 2nd respondent. No satisfactory explanation is forthcoming for its absence before the Tribunal.
10. Hence, no relief can be granted to the petitioner. The further contention that the Redressal Commission has no jurisdiction on the ground that the 2nd respondent was not a consumer has been rightly answered by the Redressal Commission with reference to the provisions of the Act and placing reliance upon the judgment of the National Consumer Forum. In my considered view, the findings recorded by the Redressal Commission on the said contentions are legal and valid and does not call for interference by this Court.
11. For the reasons stated supra, the writ petition must fail and accordingly, writ petition is dismissed.