Per Hon’ble Mr.Justice S.B.Mhase, President
Heard Mr.A.V.Patwardhan-Advocate for the applicant/ appellant.
This appeal can be disposed of at the admission stage without notice to the other side, since the original complaint was dismissed or rejected by the District Forum at the stage of removal of objection in view of regulation 9 of Consumer Protection Regulations, 2005.
This appeal takes an exception to an order passed by the President of District Forum, Mumbai Suburban on 31/12/2012 in consumer complaint no.CC/12/586. By the said order complaint has been dismissed or rejected stating that the objections in spite of undertaking given to the District Forum that the objections will be removed within 15 days, they were not complied with and, therefore, as per the directions of the State Commission, complaint is dismissed.
Appeal has been filed on 11/03/2013 and there is delay of 23 days in filing this appeal and, therefore, along with appeal delay condonation application being no.MA/13/32 has been filed by the original complainant/appellant.
Ground for condonation of delay is that the junior advocate Mr.Jagdhish Gowda, who was handling this complaint had suddenly left office of Mr.A.V.Patwardhan due to family problems of Mr.Jagdhish Gowda and, therefore, delay of 23 days has occurred. In the present matter apart from the reason given for condonation of delay, what we find that the order passed by the District Forum is not sustainable in law for the reasons stated below and, therefore, in the interest of justice, we are inclined to condone delay and delay is accordingly condoned.
Since on perusal of the order dated 31/12/2012, we notice that for non removal of objections complaint was dismissed, therefore, we tried to know from the appellant/original complainant as to what were the objections which were required to be removed. Ld.Counsel Mr.Patwardhan reported us that the description of the opponent is shown as M/s.Bajaj Allianz Ltd. and the District Forum was of the view that the Head office should be numbered as opponent no.1 and the branch office should be numbered as opponent no.2 and since it was not so stated, the complaint when placed before the District Forum after 15 days was dismissed as stated above by the President.
Ld.counsel submitted that the Head Office of M/s.Bajaj Allianz Ltd. is located at Pune and, therefore, address at Pune has been given. However, he submitted that main business of the said Insurance Company is carried out at Mumbai Branch office and, therefore, complainant has given address of the Mumbai office. He submitted that it is not necessary to make branch as a party.
We do not appreciate his submission and we do not find merit in his submissions. What we find that the insurance policy has been taken by the complainant from the Mumbai branch office of M/s.Bajaj Allianz Ltd., though policy has been issued in the name of M/s.Bajaj Allianz Ltd. Head office, but that is an usual practice of every Insurance Company. It is well settled principle that the juridic persons like Insurance Company which has number of branches in the country, in such cases, complaint should be filed within the jurisdiction of the District Forum where the branch office is located. Therefore, in the present matter also complainant ought to have made the branch at Mumbai as a party to the proceeding. Instead of doing that he has shown address of the branch at Mumbai as an address of M/s.Bajaj Allianz Ltd., namely, he has tried to show that Head office is having two addresses, which is not a correct position in law.
At this stage, Ld.counsel invited our attention to the clause from the insurance policy stating that all the grievances in respect of insurance company shall be communicated to the Head office and, therefore, he stated that he has rightly made a party. We are not impressed by this submission also. That provision has been made in the agreement for the purpose of redressal of the grievances between the parties inter-se prior to approaching any legal forum i.e. either Consumer forum and/or Civil Court. By this method the jurisdiction of the authorities cannot be taken. On the contrary, for the convenience of the consumers the Parliament has made a provision that even a branch office can be made party if the transaction has taken place at a branch office. This is made convenient for the benefit of the consumers, because under the regular provisions of Civil Law it is well settled principle that the suit shall be filed where the defendant resides or cause of action has taken place. That provision has been modified while making provisions of Consumer Protection Act, 1986 and it is permitted to file a complaint at Consumer Forum within whose jurisdiction branch office functions. Had such a provision be not made in the Consumer Protection Act, 1986, it would have been necessary for every consumer to file a complaint as against corporate sector, service provider, at a place where corporate sector is placed. Now in the present case all the complaints against M/s.Bajaj Allianz Ltd. would have required to be filed in Pune District Forum or Pune Court and that would have caused serious prejudice to the rights of the consumers. Therefore, clause which provides for pre-litigation correspondence and redressal of grievances cannot be extended to nullify statutory provisions of Consumer Protection Act, 1986 and, therefore, we do not find any substance in the said contention.
Apart from that there is serious lacuna in the order passed. What has been found by the State Commission that the procedure as provided in regulation no.9 which contemplates that whenever complaint has been presented by the complainant, the Registrar shall scrutinize the complaint and if there are any objections, those objections shall be made known to the complainant. Thereafter, he shall give period of 15 days to comply with those objections and if the objections are complied with within a period of 15 days, complaint shall be numbered and processed further for hearing. However, if the objections are removed by the complainant and/or his advocate then Registrar of the Consumer Forum is under obligation under the said regulation to place the matter before Consumer Fora, namely, District Forum in the present case. Thereafter, District Forum is expected to pass an order. Here the District Forum can pass three types of orders:-
1. District Forum can give reasonable time for the compliance of objections.
2. District Forum can take away the benefit of limitation, forfeit the benefit of limitation if he finds that the complaint has been filed only to protect it from the limitation but the objections are not purposely removed by the complainant and he desires to prolong the complaint by way of protraction.
3. District Forum can reject the complaint.
Such a discretion is vested in view of regulation 9 with District Forum or Consumer Fora, namely, State Commission or National Commission. Having found that State Commission of Maharashtra has noticed that these provisions are not followed by the Registrars of the District Fora, number of matters for number of years are kept pending for removal of objections and, therefore, the directions have been issued that these regulations shall be implemented by the Registrar and Registrar shall not keep the file with him under objection after a period of 15 days and bring it to the notice of the District Forum so that District Forum can pass an appropriate order. State Commission has also provided scrutiny form and in the said scrutiny form taking the provisions of regulation no.9 to simplify the work of the District Forum, certain orders which are required to be passed by the Registrars have been also provided for. Not only that but to make it note to the complainant initially undertaking was provided that the complainant will remove it within 15 days and later on that form was improved and now it is made know to the complainant that such objections are there and he shall remove it within 15 days. Unfortunately, administrative directions given by the State Commission have not been properly understood by the President of the District Forum, Mumbai Suburban. He has wrongly construed undertaking obtained from the consumer, namely, he will comply the objections within 15 days. On the contrary, regulation no.9 itself contemplates period of 15 days for compliance of objections by the complainant and by consequential amendment said regulation has provided that if objections are not complied within 15 days matter shall be placed before the District Forum. That is the statutory provision which has been brought to the notice of the District Forum. Therefore, when the matter is placed before the District Forum, instead of exercising the jurisdiction and power as stated above, by passing appropriate orders, District Forum has simply mechanically to keep a blame on State Commission has observed that in view of the orders of the State Commission, matter is dismissed. This approach of the District Forum is absolutely illegal and contrary to the provisions of law, more specifically, regulation no.9. Therefore, order itself is not sustainable under regulation no.9 because reason assigned in the order is absolutely bad in law.
There is one more aspect that sub regulation no.4 of regulation 9 requires that if the objections are not removed within 15 days, matter shall be placed before the Consumer forum, namely, in the present case before the District Forum for passing an order. District Forum means President and two members together. At the most in view of provisions 14(2) of the Consumer Protection Act, 1986, it means President and one member. But in any circumstances, it does not mean singularly President and/or singularly any member of the District Forum. For passing an every order by the District Forum President and one member is necessary u/sec.14(2) of the Act. That mandatory provision has been overlooked by the President of Mumbai Suburban District Forum when he passed an order on 31/12/2012 impugned before this Commission. He has passed that order singularly sitting when under law he has no power to pass such an order singularly sitting. Therefore the order is not sustainable.
We are aware that in administrative instructions issued under section 24-B of the Act, we have instructed District Forum that in urgent circumstances and situation a single member of the District Forum, in order to meet the ends of justice can pass an appropriate order but we have made it obligatory on such a member to place the matter before the District Forum consisting of President and Member as required u/sec.14(2) of the Act in the next available meeting of the District Forum so as to confirm the order pass singularly. That procedure has not been followed by the President even subsequent to passing of an order on 31/12/2012. From any angle order of dismissal or rejection of the complaint is not sustainable in law. It is an arbitrary exercise of the powers by the President overlooking to the statutory provisions, namely, section 14, regulation 9 and also administrative instructions issued u/sec.24-B. Though he is quasi judicial authority he is not above the law. Consumer Forum has to work within the purview of the powers vested in them. What we find that it is a perverse exercise of the powers of the President of the District Forum and, therefore, order is required to be quashed and set aside. Apart from that while passing such an order at objection stage one has to keep in mind that Consumer Fora are working for the purpose of redressal of grievances of the parties. It is benevolent legislation for the consumers provided by way of speedy remedy and hyper technical views like this which results into denial of trial and delivery of justice shall not be taken and the Consumer Fora shall refrain themselves from passing such types of orders, which is a simplicitor intention of the Parliament of this country, has been overlooked by the President of the District Forum while passing this order. We find that order is not sustainable in law. It is hereby quashed and set aside.
At this juncture, Mr.Patwardhan-Ld.counsel submitted that he will remove the objection, namely, he will add the branch office at Mumbai as opponent no.2. We grant such permission to him and he shall make appropriate amendment in the complaint pending in the District Forum and, thereafter, complaint shall proceed in accordance with the law. Therefore, we pass following order:-
ORDER
1. Misc.application no.MA/13/32 for condonation of delay is allowed. Delay in filing the appeal is condoned.
2. Appeal is allowed.
3. Order dated 31/12/2012 is set aside. Complaint no.CC/12/586 is restored to original position. Complainant is directed to carry out amendment by adding branch office of M/s.Bajaj Allianz Ltd. located at Mumbai as opponent no.2.
4. Under the facts and circumstances of the case, no order as to costs.
5. Copies of this order be circulated to all the District Fora in the State of Maharashtra.
Pronounced on 1st April, 2013.
