State Consumer Disputes Redressal Commission
Andaman & Nicobar Islands
Port Blair
Present: Justice Arunabha Basu, President.
CONSUMER CASE NO. 01 of 2012
Shri. S.K. Alagiri, S/o Late Singan Kumarandi, R/o Anarkali, PS Aberdeen,
Port Blair. ……………Complainant
-vs-
Dr. Rohindra Lall, Rohin’s Eye Hospital, 23, AIR Road, Delanipur, Port Blair.
……………Opposite party
Order No.21
Date: 21.06.2013
The impugned order is passed to dispose of the application filed by the Opposite party to this case, whereby and whereunder the opposite party prayed for an order to recall my earlier order being order No.10 dated 23.11.2012 where I expressed my unwillingness to hear the case and directed that henceforth the case will be dealt by other Members of the Commission.
The application is opposed by the Complainant to this case and he filed a written objection.
After going through the recital in the application it appears that the Opposite party has raised the question of legality of the order passed by me as mentioned above and also about propriety of such order.
I have heard the submission made by learned Advocate appearing for the respective parties. The legal question raised in the application relates to the interpretation of Sub-Section 2 to Section 14 of the Consumer Protection Act 1986 (“Herein after called the Act”). Sub-Section 2 to Section 14 provides that proceeding shall be conducted by the President along with at least one Member. The provision of Section 14 is applicable mutatis mutandis to commission in terms of Provision under Section 18 of the Act. In this connection mention may be made of Section 22 D of the Act, which is also been quoted in the application filed by the opposite party. Under Section 22 D it is provided that “when the office of the President of a District Forum, State Commission, or of the National Commission, as the case may be, is vacant or a person occupying such office is, by reason of absence or otherwise, unable to perform the duties of his office, these shall be performed by the seniormost member of the District Forum, the State Commission or of the National Commission, as the case may be.” It is evident that the language of the Section 22 D clearly stipulates that in the absence of the President for whatever reason the duties of the office of the President shall be performed by the seniormost Member. It gives us a clear indication that presence of President is not mandatory in order to decide the applications that may be filed before the Commission. It must be borne in mind that the learned Members of the Commission are independently empowered to decide any judicial matter. The provision of law makes it abundantly clear that in case of difference of opinion between President and other Member the matter shall be referred to the other Member and the decision given by the Member shall form the majority decision. This decision is made clear by Sub-Section 2 A of Section 14 of the Act.
The rules framed by A &N Administration i.e., A&N Islands Consumer Protection Rules 2011 has also made similar Provision Rule 11 and Rule 12 of the aforementioned Rule also provides such a contingency and the seniormost Member of the Commission is empowered to discharge the functions of the President during his absence in terms of provision under Rule 12.
In this regard it may be pointed out that the legality of the order passed by the Members of the Commission in the absence of President has been questioned before the Hon’ble Supreme Court in Gulzari Lal Agrawal-vs-Accounts Officer reported in (1996) 10 SCC 590. The Hon’ble Supreme Court in aforementioned decision held that the order passed by the Commission even in the absence of the President cannot be deemed to be illegal.
The learned Advocate for the complainant also objected the maintainability of the application mainly on the ground that the application filed by the opposite party is in effect an attempt to review my order dated 23.11.2012 and the same is not maintainable on the ground that the provision of the review is not applicable before the Commission. It is correct that the Commission discharges judicial functions and the provisions of the CPC has limited application as provided in the statute. Review of the order is not included in the limited application of CPC as mentioned in Section 13 of the Act.
So far as the merit of the application is concerned I find the same is not legally maintainable. Moreover, when a Judge recuse himself from hearing a case, the Judge is not bound to give reasons or explanations for doing so. Normally, a Judge will hear a case placed before him unless the situation demands where he feels that it may not be proper to hear the case. Under these circumstances the application filed by the opposite party stands rejected. However, while making submission learned Advocate for the Complainant submitted that the case may be adjourned sine die. I am also of the view that the matter may be placed before the next President of the Commission as my term will expire on February 2014. My successor in office shall constitute the bench afresh and the parties will be given proper notice about the resumption of the hearing.
President
State Commission
