Kerala

StateCommission

A/14/428

R KISHORE - Complainant(s)

Versus

JUSTIN JOSEPH - Opp.Party(s)

S SHANAVAS

13 Nov 2015

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NOS.428/14 & 480/14

COMMON JUDGMENT DATED :16/11/15

 ( Against the order in CC.No.66/2011 on the file of CDRF, Kollam order dated : 01.08.2014)

 

PRESENT

 

SRI.K.CHANDRADAS NADAR     : JUDICIAL MEMBER

SMT.A.RADHA                               : MEMBER

SMT.SANTHAMMA THOMAS      : MEMBER

 

APPEAL NO.428/2014

APPELLANT

 

          R.K. Kishore,

          Managing Director,

          Assiano Builders and Developers,

          Sowparnika Buildings,

          Kadappakkada, Kollam,

 

          (By Adv. Sri. Ram Mohan & N.G. Mahesh)

 

                                                                                                          VS.

 

RESPONDENTS

 

1.   Justin Joseph, S/o. Joseph,

          Residing at Mavila  Veedu,

          House No.5/317,Viavathu Junction,

          Vellimoncheri, Perinad Village,

          Kollam.

 

2.   Sunitha, W/o. Justin Joseph,

          Residing at Mavila Veedu,

          House No.5/317, Vlavethu Junction,

          Vellimoncheri, Perinad Village, Kollam.

         

 (By Adv. Sri. Dinesh Sajan)

 

APPEAL NO.480/14

 

APPELLANTS

 

1.   Justine Joseph, S/o. Joseph,

           Mavila  Veedu,

          House No.5/317,Viavathu Junction,

          Vellimoncheri, Perinad Village,

          Kollam.  Originally belonged to

          Vadakkevila Kizhekkethil House,

          Uliyacovil Muri, Kollam East Village,

          Kollam Taluk, Kollam.

 

2.   Sunitha D/o. Wilson,

 Mavila  Veedu,

          House No.5/317,Viavathu Junction,

          Vellimoncheri, Perinad Village,

          Kollam.

 

          (By Adv. Sri. Dinesh Sajan, K)

 

                                                                                                VS.

 

RESPONDENT

 

          R. Kishore,

          Styled as Managing Director of

          Assiano Builders & Developers,

          “Souparnika Buildings”, 2^nd Floor,

          Above Sony Service Centre (Madonna)

          Kadappakada, Kollam – 1.

 

          (By Adv. Sri. Ram Mohan)

 

COMMON JUDGMENT

 

SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER

        Appellants are respectively the opposite party and the complainants in CC.No.66/2011 in the CDRF, Kollam. Complainants 1 & 2 the appellants in Appeal No.480/2014 are husband and wife. They engaged the opposite party a builder to construct a building. Alleging deficiency in service and unfair trade practice on the part of the builder, the complainants had approached the consumer forum for compensation. After recording evidence and hearing parties the president of the consumer forum and the members together pronounced two separate orders on 01.08.2014. Both the orders took the view that the complaint was liable to be allowed in part. As per the order of the president of the forum the complainants were entitled to Rs.3,00,000/- on various accounts from the opposite party. But according to the members the opposite party is liable to pay Rs.7.50,000+ Rs.50,000/- as compensation. So in both the orders apparently deficiency in service or unfair trade practice on the part of the opposite party was found. But they differed in the matter of the amount of compensation payable to the complainants. The orders of the consumer forum are being challenged in these appeals.

        2. The orders of the consumer forum according to the appellants violate the provisions of section 14 (2A) of the Consumer Protection Act and therefore not sustainable. Section 14 (2A) mandates that every order of the District Consumer Forum shall be signed by the President and the Member or Members who conducted the proceeding. The proviso to Clause (2A) is important and it provides for resolution in case of difference of opinion between the president and the members. The proviso reads " provided that where the proceeding is conducted by the president and one member and they differ on any point or points, they shall state the point or points on which they differ and refer the same to the other member for hearing on such point or points and the opinion of the majority shall be the order of the district forum ". 

        3.     The proviso does not state specifically the procedure to be adopted when the president and the both the members conduct the proceedings.  As mentioned already, this was a case in which the president and the two members together conducted the proceedings. The president took a view and the members together took the diametrically opposite view on one of the main point. The moot question is whether such a procedure is contemplated by the proviso. It is pertinent to mention that once the president expresses opinion on points in dispute, the member is entitled to differ on any point or points. But the final decision is dependent on the decision of the other member on the point or points in which the president and the member differs. It is significant that the proviso contemplates reference of the point or points on which there is difference of opinion for hearing of the other member. This indicates that the decision of the other member on differing point or points shall be meaningful, impartial, after full application of mind and unbiased.  In the present case under appeal such a meaningful procedure did not happen. When the president took a view as per order dated 01.08.2014, the members together took a different view.  This violates the procedure contemplated by the proviso referred to.  Once the president expresses opinion on the various points, it is sufficient that the member expresses opinion on the points in which he or she differs. The other member after full application of mind should take independent decision and agree or disagree with the view of the president or the member as the case may be. The proviso also makes clear that the opinion of the majority thus taken shall be the order of the consumer forum.

        4.     In the present case, apart from pronouncing two orders taking contradictory views there is no effective order which can be put into execution. That order should find a place in the form of the majority opinion. It is not sufficient that the majority opinion is inferred from the two orders passed by president and members respectively. In view of the said conclusion, it is unnecessary to enter into the merit of the contentions of the parties. The order of the consumer forum is liable to be set aside and sent back for taking fresh decision in accordance with section 14 (2A) of the Consumer Protection Act and its proviso after hearing the matter afresh.

                 In the result, both the appeals are allowed. The orders under appeal are set aside. The matter is send back to the CDRF, Kollam with direction to hear CC.No.66/2011 afresh and dispose of the matter in accordance with law and directions contained in this judgment. The parties shall appear before the consumer forum on 30.12.2015.

K.CHANDRADAS NADAR   : JUDICIAL MEMBER

 

 

A.RADHA                               : MEMBER

 

 

SANTHAMMA THOMAS      : MEMBER

 

 

 

be/

 

 

 

 

 

 

 

KERALA STATE

 CONSUMER DISPUTES

 REDRESSAL COMMISSION

 SISUVIHARLANE VAZHUTHACADU

 THIRUVANANTHAPURAM

 

 

 

APPEAL NOS.428/14 & 480/14

COMMON JUDGMENT DATED :16/11/15

 

 

 

Be