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Consumer Protection Council, Rourkela |
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advantageconsumer.com
Consumer Protection Council, Rourkela |
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Supreme and fallible – right to blunder? B.Vaidyanathan
Supreme Court is the last resort for those who seek justice in all matters concerning their life and property. So over 125 crores of Indians look up to this body as an embodiment of legal knowledge, wisdom and power, to safeguard their interests and the society and act without fear or favour in the job entrusted to them. If the Supreme Court fails to be professional and gives an impression that it is whimsical and lacks diligence in the dispensation of justice, it can cause immeasurable damage to the Indian democracy. Legal luminaries say that to err is human. However, when a matter is finally decided by the Supreme Court, there is no further appeal from its judgment. The principle of finality of a judgment is an important element in the administration of justice. The principle of finality is insisted upon not because the judgment of the apex court is infallible but because a final decision on merits in a litigation between the parties is supposed to subserve the maxim, interest reipublicae ut sit finis litium, which in simple language means that it is in the interest of the State that there should be an end to litigation. Having said that will it not be cruel to allow the totally irrelevant and whimsical to go unquestioned? In order to remedy miscarriage of justice, however, the review is provided, say the enlightened advocates of the bar. Further it is said that the power of review is exercised when there is an error apparent on the face of the record. They also agree that a court is not easily persuaded that its view was erroneous and in a vast majority of cases review petitions are dismissed. However, where the judicial conscience of the Bench which pronounced the judgment under review is pricked, the court does not stand on its ego but acknowledges its error and gives the requisite relief, they add with pride. But this window of opportunity appears to arise in rarest of rare cases and that too when constitutional bodies or government prefer such Reviews or Curative petitions. Let us now consider how the humungous efforts of Consumer Protection Council, Rourkela, hereinafter referred to as the Council, to bring to book one of the mega scandals of independent India went uncompensated, against the provisions of the Consumer Protection Act, and the Supreme Court being a significant contributor. When such things happen, one wonders whether it will be appropriate to term it as a human error or a commitment of blunder of huge proportions. The Council filed the Original Petition against M/s IOCL for supplying under-weighed LPG refills to the consumers across the country, in the National Consumer Disputes Redressal Commission, New Delhi, in short the National Commission, in 2001 (O.P. No. 224 of 2001). After a thorough investigation and certification by the Professors of IIT, Kharagpur and the Department of Consumer Affairs, Government of India, the National Commission, concurring with the findings of the Council, directed the upgradation of all the 184 LPG bottling plants, in which tare neutralisation of the refills were being done manually. The National Commission though ordered relief to the consumers at large, without any elaboration failed to consider or record its order on Prayer (d) of the Council, which was for award of 1% of the estimated loss of Rs. 750 crores suffered by the consumers in a year, in the Original Petition filed in 2001. After the amendments incorporated in the Consumer Protection Act, in 2003, in line with the provisions of the Act, the prayer (d) was enhanced to 5%. Since the National Commission had overlooked one of the important prayers submitted before it, though the Act specifically provided for it when large number of consumers are affected, the Council filed for a Review before the National Commission. Though the matter could have been decided by circulation, the Review Petition was heard over 10 sittings and lingered on for nearly 3 years. Finally, the National Commission, in August 2010, indirectly agreed to the shortcoming in its Order and observed as under: “…we are of the view that review application for consideration/grant of said prayer (d) which will be deemed to have been declined, is not maintainable under Section 22(2) of the Act. Otherwise also this would require detailed examination of the case which is impermissible under Section 22(2) of the Act. Application is dismissed as such. It will be open to the complainant to have redressal of its grievance as may be permissible under the law.” Since the value of the defective goods (under-weighed LPG refills) involved is about Rs. 65,000 crores and the specified penalty as per the Act is a minimum of Rs. 3,250 crores, it was thought that the National Commission was probably not keen to address such a massive issue, an Appeal was filed before the Supreme Court (Civil Appeal No. 10126 of 2010). We in the Council quite conscious that we have to place the exact facts before the apex court to avoid wastage of time of the presiding officers (judges), have been harping on the issues we sought the adjudication, right from the ‘Listing Proforma’, as under: “15. Point of law and question of law raised in the case: • Whether the Amended provisions of the Consumer Protection Act, which became effective from 15.03.2003, are applicable to the present case, though filed in 2001, as the cause of action continued to exist even till 2007. • Once the Forum (National Commission) concludes that a large number of consumers suffered loss, across the country, is it not mandatory on its part to invoke Sec. 14(1)(hb)? • When should the Commission below invoke the provisions of Sec. 14(1)(d), and award punitive damages? • What is the reasonable cost envisaged under Sec. 14(1)(i)” Though the Civil Appeal was accepted for detailed examination, without any hesitation, in the first hearing itself, in 2010, by the bench comprising of Justice B.Sudershan Reddy and Justice S.S.Nijjar, all the problems started after the matter came up for hearing in 2012 before the bench comprising of Justice G.S.Singhvi and Justice S.J.Mukhopadhaya. The time of the Supreme Court is precious and one would have expected the bench to come prepared with the issues raised before it for adjudication. Unfortunately, that was not to be. Even after 4-5 sittings there was no change in the status quo. On 16th Oct. 2012, when this author appearing for the Appellant Council found that the bench was continuing to discuss about various aspects not relating to the issues for which the Appeal had been filed, intervened to guide them that the Appeal had been necessitated for determining the award of compensation under Section 14(1)(hb) of the Consumer Protection Act, as the National Commission had failed to adjudicate on this issue. In that connection this author also quoted the judgement of the Supreme Court, in M/s Nagpur Golden Transport Company (Regd.) Vs M/s Nath Traders & Ors., Civil Appeal No. 3546 of 2006, in which for a nominal sum of Rs. 1 lakh or so, value of damaged monoblock pumps, the case traversed from District Forum to Supreme Court and it held that it was a case of undue enrichment and the respondent was directed to pay the amount to the appellant. Whereas the instant case involved Rs. 65,000 crores worth of goods. To this, Justice Singhvi immediately remarked that the author should become a lawyer. In another instance he also remarked that environmental degradation is a much serious issue and in Punjab water levels had gone very low, say, below 250 feet and the author should take up environmental issues. These were probably the ominous indicators that the bench was not going to adjudicate upon the issues for which the Appeal was filed. Since we fully trusted the apex court, we failed to read between the lines. Though all these discussions were held on 16th Oct., the “Record of Proceedings” of the Court recorded as below: “We have heard Shri B.Vaidyanathan, the appellant appearing in person, Shri P.P.Malhotra, learned Additional Solicitor General and Shri Parag P. Tripathi, learned senior counsel appearing on behalf of the Indian Oil Corporation Limited and perused the record. Shri Malhotra and Shri Tripathi say that they will hold consultation with the concerned functionaries of the government and Oil Companies and come out with concrete suggestions on the issues of checking weight of cylinders and the gas and giving wide publicity in print and electronic media about the rights of the consumers to be supplied LPG gas of particular weight. Shri Malhotra and Shri Tripathi further say that they would also hold consultation on the issue of obtaining cylinders by the Oil Companies of the standard specification so that the consumers may not be misled about the weight of the empty cylinders and the quantity of gas.” Recording of the proceedings verbatim is not expected. But an honest reproduction of all that happened is what one expects from such a premier body, which survives on the hard earned tax payers’ money. Unfortunately honesty is in premium in a country, which dreams of ruling the 21st century. But on 5th Dec. 2012, the next date of hearing in the impugned case, started with dictation of the order, without discussing whatever was already ordered, which startlingly concluded that the matter brought by the Council was infructuous. Infructuous means unfruitful or unprofitable. How a case filed for adjudication of an issue of law, without even being discussed upon can become unfruitful, unless the bench entrusted with the job of adjudicating prefers to record as per its whims and conclude contrary to the facts placed on record and discussed in the court. Very sad and pathetic state of affairs indeed. While the bench would have been fully justified to negate the prayers of the Appellant Council, on valid grounds, it is travesty of justice to pass and penalise a voluntary organisation surviving on meagre resources, for having come to it, just because it did not want to adjudicate on an issue of law about which either it did not have sufficient knowledge or the issue being too big to be of comfort to it. Since we in the Council still believed that some mishap had happened due to oversight or whatever, exhausted our option for seeking a Review, which was promptly dismissed. Still not convinced, the Council moved the Curative Petition in 2013 and the same got formally dismissed in July 2014, without a discussion. Readers need to know that to file the Curative Petition, it needs to be certified by a designated Senior Advocate of the Supreme Court, that in the interest of justice the case needs to be reconsidered for reasons which are to be recorded. After all this, if still gaping holes exist in the dispensation of justice, the higher judiciary needs to do some soul searching. Since every concerned party, whether it be the media or the executive have their own axe to grind and are hardly in a position to discuss such aberrations in an objective manner, people of this great nation are being left to the mercy of these demi gods of justice in the supreme judiciary. (The author is the Chief Mentor
of Consumer Protection Council, Rourkela)
********** Also read Let the consumer be doomed.... |
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