Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
This appeal has been filed by org. opponent against the judgement and award passed by District Consumer Forum, Central Mumbai in consumer complaint No.138/2008 decided on 18/06/2009. While allowing the complaint partly, Forum below directed the opponent to refund amount of `53,692/- to the complainants towards fare from Johannesburg to Victoria Falls in Kenya and also directed to pay to the complainants `60,000/- as compensation for mental harassment and directed to comply with the order within four weeks from the date of receipt of the order. As such, org. opponent-Kesari Tours Pvt. Ltd., Mumbai has filed this appeal.
All the facts need not to be stated. Suffice it to say that complainants had filed consumer complaint against opponent alleging deficiency in service on their part in not informing them before undertaking tour, their rejection of Visa to Zimbabwe and in not taking them to Victoria Falls due to non-obtaining of Visa. They had booked tour of Kesari Tours Pvt. Ltd. for visiting Kenya and other countries. They had made certain payments which were not in dispute. They found that in the course of tour that they could not visit Zimbabwe and Victoria Falls because opponent had not obtained Visa for Zimbabwe. On return from tour, complainants filed consumer complaint for alleged deficiency in service against the opponent.
Opponent filed written version and denied the allegations of deficiency in service. Opponent however contended that issuing Visa is the sovereign function of the State. It is for that country whether to grant Visa to any person or not. Hence, opponent pleaded that they could not be held responsible if they could not obtain Visa for the complainants’ tour from Zimbabwe. They had mentioned this fact in the brochure given to the complainants. They had specifically mentioned in the brochure that if the passengers need to cancel a tour due to rejection of Visa or rejection of entry into the country, cancellation charges of the Company would be applicable and would be payable by the passengers. There would be no refund if the passenger or any member of his party is unable to travel due to said reasons. Opponent contended that they were not guilty of deficiency in service. They had tried to obtain Visa from Kenya, but could not obtain the same within time, but even for this deprivation of this segment of the tour, they had offered `30,000/- by way of compensation. A cheque was sent for that amount towards full and final settlement. Complainants accepted the same under protest and then sent it back and filed this consumer complaint. They pleaded that they were not deficient in service of any kind and complaint should be dismissed with costs.
Forum below after considering the documents and affidavits placed on record and after hearing Counsels for the parties held that Kesari Tours Pvt. Ltd. was guilty of deficiency in service and that they had deprived their customers (complainants) by keeping them totally in dark by not informing rejection of their Visa before the complainants undertook said tour which according to the Forum below was highly deplorable on the part of opponent and therefore, Forum below was pleased to direct refund of `53,692/-, the amount of airfare from Johannesburg to Victoria Falls and also directed payment of `60,000/- as compensation for mental agony. Aggrieved by this order, Kesari Tours Pvt. Ltd./org. opponent has filed this appeal.
We heard Mr.Harihar Bhave, Advocate for the appellant and Mr.Shool, Advocate for the respondents.
We need not go into the merits of the case. We are finding substance in the arguments of Learned Counsel for the appellant when he argued before us that the judgement and award passed in this case by the District Consumer Forum should be quashed and set aside simply on the ground that the District Consumer Forum which decided the complaint in favour of the respondents was not properly constituted. Learned Counsel for the appellant brought to our notice Section 14 sub-Section (2) of the Consumer Protection Act, 1986 which mandates that every proceeding referred to in sub-Section (1) shall be conducted by the President of the District Consumer Forum and at least one Member thereof sitting together. He also brought to our notice sub-Section (2-A) of Section 14 of the Consumer Protection Act, 1986 which further clearly laid down that every order made by the District Consumer Forum under sub-Section (1) shall be signed by its President and the Member or Members, who conducted the proceeding. These two provisions if read together would leave us in no doubt that the proceeding in the District Consumer Forum must be conducted by the President and two Members primarily, but if for any reason, one Member is absent or not available, then it shall be conducted by the President and the Member present on that particular date. The order should also be signed by the President and the Member sitting and there is no concept of Bench. There can be Benches in the State Commission or in the National Commission, but so far as District Consumer Forum is concerned, primarily, Quorum of the District Consumer Forum is President and two Members and in exceptional cases, if one of the Member is absent, District Consumer Forum can consist of President and one Member, who can clearly dispose of the cases by hearing the matters before them. But, under no circumstances, Section 14 (2)&(2-A) permit only Members to conduct hearing of the case and to pass judgement thereon. Judgement of the District Consumer Forum, we reiterate must be signed by the President and two Members, if they are available and President and one Member, if only one Member is available and sitting with the President. Under no circumstances, law permits two Members to decide the consumer complaint in the District Consumer Forum.
It was contended on behalf of the respondents that one of the Member was designated as In-charge President. May be one of two Members has been kept as In-charge President in the absence of President of said District Consumer Forum, but the In-charge President of the District Consumer Forum is simply required to attend the cases, grant adjournment, take on record affidavits filed, written version filed, notes of arguments filed, but he is not permitted along with other Member present to dispose of the cases and to deliver judgement on behalf of the District Consumer Forum. So, except hearing and disposal of the complaint by judgement, everything else can be done by the In-charge President in the absence of the President. But, disposing of the consumer complaint must necessarily be done by the President and two Members, when both are available and by the President and only one Member, who is available with him to do judicial work. This is a mandate of law as incorporated in Section 14(2) & (2-A) of the Consumer Protection Act, 1986.
In our case, we are finding that the complaint was disposed of by two members, one of whom was In-charge President, but it was not disposed of by the President and Members. At the cost of repetition, we mention that the President is not inclusive of In-charge President and therefore, disposal of instant complaint by two Members alone without having President in the District Consumer Forum on that particular date must be held to be bad in law and on this count alone, appeal will have to be allowed for the procedural blunder committed by the Learned Members of the District Consumer Forum. In the circumstances, we are inclined to pass the following order :-
-: ORDER :-
1. Appeal is allowed. The impugned award dated 18/06/2009 passed by District Consumer Forum is quashed and set aside.
2. Consumer Complaint No.138/2008 is remitted back to District Consumer Forum, Central Mumbai for deciding afresh the complaint after hearing both the parties by the President and Member or Members sitting with him.
3. Both the parties are directed to appear in the District Consumer Forum on 21/02/2011.
4. Parties are left to bear their own costs.
5. Copies of the order be furnished to the parties.
