KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NOS.912/2012 & 482/2013
COMMON JUDGMENT DTD : 30.11.2013
(Appeal filed against the order in CC.No.05/2012 on the file of CDRF, Alappuzha order dated: 05.09.2012)
PRESENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SRI.V.V.JOSE : MEMBER
APPEAL No.912/2012
1. The Airport Manager,
Air India Airlines,
Safdarjung Air Port,
Airoband Marg, APPELLANTS
New Delhi - 110 003
2. The Manager,
Air India,
Durbar Hall Road,
Cochin – 682 016
(By Adv.Menon & pai)
Vs.
1. Dr.Padmakumar,
Thachankottil,
Varavila.P.O
Clappana village,
Kollam District RESPONDENTS
2. Prof.Sukumara Babu,
Manapuzha Tharayil,
Ponakam,
Mavelikkara,
Alappuzha District
3. Prof.Ajaykumar,
Ajayavilasam,
Thototunmukham.P.O
South Mynagappally,
Kollam District
4. The Proprietor,
Croyons communications,
Manackad,
Opposite Panchayath Office,
Vallikunnam.P.O
Alappuzha District 690 501
(R1 to R3 by Adv.Ullas Kambisseri)
APPEAL No.482/2013
1. Dr.Padmakumar,
Thachankottil,
Varavila.P.O
Clappana village,
Kollam District
2. Prof.Sukumara Babu, APPELLANTS
Manapuzha Tharayil,
Ponakam,
Mavelikkara,
Alappuzha District
3. Prof.Ajaykumar,
Ajayavilasam,
Thototunmukham.P.O
South Mynagappally,
Kollam District
(By Advs.R.Ullas Kambisseri &
J.S.Asok kumar)
Vs.
1. The Airport Manager,
Air India Airlines,
Safdarjung Air Port,
Airoband Marg,
New Delhi - 110 003
2. The Manager,
Air India, RESPONDENTS
Durbar Hall Road,
Cochin – 682 016
3. The Proprietor,
Croyons communications,
Manackad,
Opposite Panchayath Office,
Vallikunnam.P.O
Alappuzha District 690 501
COMMON JUDGMENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
In these appeals the order of CDRF, Alappuzha in CC.No.5/2012 dated 05.09.2011 is challenged respectively by opposite parties 1 & 2 and the complainants. The facts in brief necessary for the disposal of these appeals are the following. The complainants three Assistant Professors in the MSM College, Kayamkulam booked three air tickets of opposite parties 1 & 2 through their authorized agent, the third opposite party. The onward journey to New Delhi from Cochin was scheduled on 29.10.2011. Return journey tickets were also booked for 03.11.2011. Deficiencies alleged in the service of the opposite parties are that the onward journey to New Delhi was delayed by three hours, and the return journey flight at 6 A.M. on 03.11.2011, was cancelled. The opposite parties were in fact reluctant to furnish seats in the next flight. Consequent inconveniences also arose like finding accommodation on cancellation of the return flight, second journey to and from the hotel where they got accommodation after cancellation of the return flight etc.
2. It appears that notices were served to the opposite parties and they in fact entered appearance before the District Forum but opposite parties 1 & 2 failed to file their version and subsequently absented themselves continuously. Therefore the case was decided exparte. The third opposite party contended that they were only franchisee of the authorized ticket booking agent of the first opposite party. If there was cancellation of a flight or delay in the departure of flight, it would be intimated to the customer by the first and second opposite parties. But the third opposite party has no obligation in that regard. There was no deficiency in service on their part.
The District Forum based on the proof affidavit filed by the complainants and Exts. A1 to A3 produced by them passed the impugned order.
3. The pertinent aspect of the impugned order is that it is passed by the President in charge and a Member of CDRF, Alappuzha. The office of the President was obviously lying vacant and one of its members was given charge of the office of the President under section 22D of the Consumer Protection Act. As regards the question whether there was deficiency in service on the part of opposite parties 1 & 2 both of them concurred and answered the question in the affirmative. But regarding the quantum of compensation payable to the complainants they disagreed. The President in charge was in favour of awarding compensation of Rs.1 lakh to each complainant. Further he was in favour of awarding Rs.25,000/- to the complainant towards expenses incurred by them for getting accommodation in a star hotel in New Delhi again due to cancellation of the flight and for further stay. He was in favour of ordering punitive costs of Rs.1000/- and Rs.6400/- towards taxi charges from Karunagappally to Cochin Airport and return journey from Cochin airport to Karunagappally. He was in favour of ordering Rs.2000/- also as cost of proceedings. But the Member who participated in the proceedings disagreed and according to her compensation of Rs.10,000/- to each complainant would be sufficient. Further she was in favour of awarding costs of Rs.1000/-.
4. The main argument taken by opposite parties 1 & 2 in Appeal No.912/2012 is that the order is in total violation of Section 14 (2A) of the Consumer Protection Act. For convenience we quote the provisions of Section 14 (2A). “Every order made by the District Forum under sub-section (1) shall be signed by its President and the Member or Members who conducted the proceeding. 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".
5. Three questions crop up based on the above provision. Firstly the question is whether a member in charge of the President under section 22D of the Consumer Protection Act is “President “within the meaning of Section 14 (2A). Secondly, whether in the light of difference of opinion between the two members who participated in the proceedings, the order is valid and thirdly the extent of opinion that could possibly be that of the third member to whom the differing point is referred for decision.
6. While considering the first question it is pertinent to notice that President or the Members of a District Forum discharge quasi judicial functions and administrative function is mainly discharged by the President. In his absence the administrative functions will have to be discharged by someone else. It is in this context Section 22D is relevant. The wording “unable to perform the duties of his office “is significant. No doubt such duties would also include judicial powers but the provisions of Section10 regarding the composition of the Forum can not be totally ignored. Where as the President of a District Forum should be a person who is or has been or is qualified to be a District Judge, the other members need possess a bachelors degree from a recognized university. So when Section 14 (2A) insists that every order made by the District Forum under sub-section 1 should be signed by its president and the member or the members who conducted the proceeding, the President is apparently referred as persona designata and would not include a member in charge of the President under section 22D. This is the reasonable interpretation when the provisions in the Consumer Protection Act referred to are interpreted together. So it appears that the impugned order was passed without the President as signatory.
7. Regarding the second question there is clear violation of the proviso to section 14 (2A). There was failure to refer one of the points in which there was a disagreement to a third member and pass orders according to the opinion of the majority. It is true that the office of the President was lying vacant but that would not dispense with the obligation to refer points of difference to a third member.
8. The third question really does not arise in this appeal but in certain points the opinion could be in the affirmative or in the negative and in such cases there would be no difficulty and the third member would affirm the decision of one or the other. But on points like quantum of compensation the third member can very well express an opinion different from the opinion of the other two and in that case difficulty would arise. So by and large the third member should concur with the opinion of either of the other members. This appears to be the spirit of proviso to Section 14 (2A).
9. It follows that the District Forum ought not have granted certified copy of the impugned order before the third member decided the differing point. In disposing of these appeals the other aspects to be considered are that now the office of the President of the District Forum Alappuzha is duly filled up and he can decide the differing point. However request was made during arguments that opposite parties 1 & 2 may be given opportunity to file version and contest the case. This was opposed by the learned counsel for the appellants in Appeal No.482/2013 who seek enhancement of compensation. In fact, in both these appeals the prayer is to set aside the order of the District Forum. So it appears to be just and proper to allow opposite parties 1 & 2 to contest the case on merits and to direct the District Forum to decide all questions afresh.
In the result, these appeals are allowed as below. The order passed by CDRF, Alappuzha on 05.09.2011 in CC.No.05/2012 is set aside in full. The matter is sent back to the District Forum with direction to parties to appear before the District Forum on 03.01.2014. If opposite parties 1 & 2 file their version within two weeks, thereafter they should be allowed to contest the case on merits. In that case the District Forum shall proceed to record all evidence to be adduced by the parties and decide the case in accordance with law. The parties shall bear their respective costs in these appeals.
K.CHANDRADAS NADAR : JUDICIAL MEMBER
V.V.JOSE : MEMBER
be
