State Consumer Disputes Redressal Commission
Vasudev K Thakkar vs Sunil Sud on 5 April, 2023
Details DD MM YY
Date of Judgment 05 04 2023
Date of filing 25 11 2022
Duration 11 04 -
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
First Appeal No.823/2022
Court No. 1
Thakkar Vasudev Kanaiyalal
Keval Farm, Karodiya Road,
Post Bajva, Vadodara. ...Appellant
Vs
1. Sunil Sud,
Managing Director,
Vodafon India,
Registered office: C-48, Okhla Industrial Area,
Face-2, New Delhi- 110 020.
2. J.S.Deepak,
Secretary, Telecommunication
Department of Telecommunication,
Government of India,
New Delhi- 01.
3. Birendra Maurya
A.D.E.T., Security Wings,
Department of Telecommunication,
Government of India,
Room No.:916, Sanchar Bhavan, 20, Ashoka Road,
New Delhi- 01.
4. Shri Nakhat Parvin Said Madam sir
President, CDRF Main,
Consumer Court, Nr. Amitnagar,
Karelibag, Vadodara.
5. Shri Jalpaben Saumilkumar Dhebar Madam Sir
Member, CDRF Main,
Consumer Court, Nr. Amitnagar
Karelibag, Vadodara. ...Respondent
CORAM : Hon'ble Mr. Justice V. P. Patel, President
Hon'ble Ms. A.C.Raval, Member
APPERANCE : Self for the appellant Ld. Advocate A.N.Mali for respondent no.1 ZARNA A-823-2022 Page 1 of 6 Order by Mr. Justice V.P.Patel, President.
1. The appellant has filed this appeal under section 41 of the Consumer Protection Act, 2019 (for short the CP Act), being aggrieved by and feeling dissatisfied with the judgment and order dt.12.09.2022 passed by the Ld. Consumer Dispute Redressal Commission, Vadodara (Main) (for short CDRC Vadodara) in the Consumer Complaint No.253/2016.
2. Heard Mr. Vasudev Thakkar for appellant himself. Though the notice is duly served to respondent no.1,2 & 3, no one has appeared on behalf of respondent no.1,2 & 3. Considering facts and circumstances of the case, no notices were issued to respondent no. 4 & 5.
Order under Challenge:
3. The appellant/ complainant had filed consumer case no.
253/2016 before CDRC Vadodara (Main). The said complaint has been dismissed with compensatory cost of Rs. 5000/- by the CDRC on 12.09.2022 Arguments of the appellant:
4. Appellant Mr. Vasudev Thakkar has argued that the impugned order was passed by including one of the member Jalpaben S. Dhebar. She had earlier vide order dt. 14/02/2022 declared that she will not entertain this matter inspite of this the impugned order was passed against him. It is further argued that he has filed the special CA no. 21924 Of 2019 before Hon'ble High Court against Jalpaben S. Dhebar, Member CDRC. It is further submitted that order passed by the Ld. CDRC with bias and prejudice, which resulted in miscarriage of justice. He requested to set aside and remand the case.
Merits of the case:
5. The appellant has taken one of the ground in this appeal, which reads as under.
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૧૧. ૧૧૧૧૧૧ ૧૧૧૧૧૧ ૧૧૧ ૧૧૧૧૧ ૧૧૧૧૧ ૧૧૧ ૧૧૧૧ ૧૧૧૧૧૧ ૧૧૧ ૧૧૧ ૧૧૧૧૧૧ ૧૧૧૧૧૧૧૧ ૧૧ ૧૧૧ ૧૧૧૧૧૧ ૧૧૧૧૧૧ ૧૧૧૧૧૧ ૧૧૧ ૧૧૧૧૧ ૧૧૧૧૧૧ ૧૧ ૧૧૧૧૧૧૧૧ ૧૧ ૧૧૧૧૧૧ ૧૧૧૧ ૧૧૧૧૧ ૧૧૧૧૧૧ ૧૧૧૧૧ ૧/૧/૧૧ ૧૧ ૧૧૧૧૧ ૧૧૧૧૧૧ ૧૧ ૧૧૧૧ ૧૧૧૧ ૧૧ ૧૧૧૧૧૧ ૧૧ ૧૧૧૧૧ ૧/૧/૧૧ ૧૧ ૧૧૧ ૧૧૧ ૧૧૧ ૧૧૧૧, ૧૧ ૧૧૧૧૧૧૧૧૧૧ ૧૧૧૧૧૧૧૧ ૧૧ ૧૧૧૧૧૧૧૧૧ ૧૧૧૧ ૧૧૧ ૧૧૧૧૧ ૧૧ ૧૧૧૧૧૧૧૧ ૧૧૧૧૧ ૧૧૧ ૧૧ ૧૧૧૧૧૧ ૧૧૧૧૧૧ ૧૧ ૧૧૧૧ ૧૧૧૧ ૧૧ ૧૧૧૧૧૧ ૧૧૧૧૧૧ ૧૧૧૧૧ ૧૧૧૧ ૧૧ ૧૧ ૧૧૧૧ ૧૧ ૧૧૧૧૧૧૧૧૧૧૧ ૧૧ ૧૧૧૧ ૧૧૧૧૧ ૧૧ ૧૧૧૧૧ ૧૧૧ ૧૧૧ ૧૧૧ ૧૧૧૧૧ ૧૧/૧/૧૧ ૧૧ ૧૧૧ ૧૧૧૧૧ ૧૧૧૧ ૧૧૧ ૧૧૧૧૧૧૧ ૧૧૧૧ ૧૧. (૧૧૧૧૧૧૧-3)"
6. The appellant has produced copy of order dt. 14/02/2022 passed by the president CDRC Vadodara and member (Ms. Jalpaben S. Dhebar) in CC No. 299/2017. On perusing the same it is stated in order as under.
"Before starting the online hearing on merits on 7/02/2022, it has come to the notice of the President this Commission that the complainant has filed one Spl.C.A. No. 40366/2019 before the Hon'ble Gujarat High Court for reviewing Judicial appointment of my predecessor President and two members of this commission, and therefore, it was suggested to produce the status report and copy of the said Writ Petition and the complainant had agreed to produce the same, if it is ordered by this Commission. We see no need to compel the complainant for the same. The said fact of Writ Petition is declared by the complainant in writing on 30/01/2020 wherein he himself bas prayed not to proceed in the mater due to filing of Writ Petition by him. It should be noted that out of above two members, one member is still working with this Main Commission at Vadodara and post of one member is vacant here and so such only one Member against whom the writ is pending cannot take part in the hearing of the above application and so we have two options either to recommend to transfer the matters of complainant to any other Commission or to keep the matter sine die till the new member is ZARNA A-823-2022 Page 3 of 6 appointed in the Main Commission of Vadodara. Hence, the matter is adjourned."
7. The impugned order is passed by the following 3 members out of the same Member Ms. Jalpa S. Dhebar has signed the impugned order.
8. The appellant has produced the copy of the title sheet of special CA No. 21924/2019, wherein Jalpa S. Dhebar is shown as respondent no.5.
9. We have consider the ratio laid down by the Hon'ble Supreme Court in below mentioned cases.:
9.1 P.K. Ghosh, I.A.S. And Ant vs J.G. Rajput on 10 November, 1995, 1987 AIR 513, 1995 SCC (6)744.:
A basic postulate of the rule of law is that 'justice should not only be done but it must also be seen to be done. If there be a basis which cannot be treated as unreasonable for a litigant to expect that his matter should not be heard by a particular judge and there is no compelling necessity, such as the absence of an alternative, it is appropriate that the learned judge should recuse himself from the Bench hearing that mater. This step is required to be taken by the learned judge not because he is likely to be influenced in any manner in dong justice in the cause, but because his hearing the matter is likely to give rise to a reasonable apprehension in the mind of the litigant that the mind of the learned judge, may be subconsciously, has been influenced by some extraneous factor in making the decision, particularly if it happens to be in favour of the opposite party. Credibility in the functioning of the justice delivery system and the reasonable Perception of the affected parties are relevant considerations to ensure the continuance of public confidence in the credibility and impartiality of the judiciary. This is necessary not only for doing justice but also for ensuring that justice is seen to be done.
9.2 Ranjit Thakur vs Union of India and Ors on 15 October,1987 1987 AIR 2386, 1988 SCR (1)512:
It is the essence of a judgment that it is made after due observance of the judicial process; that the E Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial "coram non-judice". (See Vassiliadas v. Vassiliades-AIR 1945 PC 38).
7. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly. "Am I biased? "but to look at the mind of the party before him.ZARNA A-823-2022 Page 4 of 6
Lord Esher in Allinson v. General Council of Medical Education and Registration, I 1894] 1 Q.B. 750 at 758 said:
"The question is not, whether in fact he was or was not biased. The Court cannot inquire into that ........... In the administration of justice, whether by a recognised legal court or by persons who, although not a legal public court, are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration any person who is to A take part in it should not be in such a position that he might be suspected of being biased."
10. Considering the contents para 15 and 17 of the appeal memo, the allegations are made against the President and Member Ms. Jalpaben S. Dhebar by the appellant. At present the president (respondent no.4) and Member (respondent no.5) are joined as party in this appeal and they are working in the Consumer Disputes Redressal Commission Vadodara (Main). If case is conducted after remand the prejudice will cause to the complainant. Therefore, the consumer complaint no. 253/2016 is required to be transfer in another Consumer Disputes Redressal commission. For that necessary order will be passed in the final order.
11. We have considered the said ground stated in memo of appeal; reasons stated in impugned judgment, the documentary evidence produced on record, ratio laid down by the Hon'ble supreme Court in above referred cases, arguments of the appellant, facts and circumstances of the case.
We are of the opinion that record shows that the prejudice cause to the appellant/ original complainant. The basic principle of rule of law is justice should not only be done but it should also be seen to be done. This principle is applicable in this case. Therefore, the order passed by the Ld. District Commission is required to be set aside and the case is required to be remanded back. In the interest of justice following order is passed.
ORDER
1. The Appeal No. 823 of 2022 is hereby partly allowed.
ZARNA A-823-2022 Page 5 of 62. The judgment and order dt. 12.09.2022 passed by the Ld. District Commission, Vadodara (Main) (for short Ld. District Commission) in the Consumer Complaint No. 253/2016 is hereby quash and set aside.
3. The matter is remanded back for taking fresh decision. The Ld. District Commission is directed and ordered to re-admit the Consumer Complaint No. 253/2016 under its original number and status in the register of Consumer Complaint.
4. Thereafter, the consumer complaint no. 253/2016 is transfer to the Ld. Consumer Dispute Redressal Commission Vadodara (Additional). The Ld. Consumer Dispute Redressal Commission Vadodara (Additional) is directed and ordered to proceed to determine the complaint; and the evidence (if any) recorded during the original trial shall, subject to all just expectations, be evidence during the trial of Consumer Complaint after remand.
5. It is made clear that we have not expressed any opinion on merits of the case, the CDRC Vadodara (Additional) shall decide the complaint according to law within 2 months from the date of transfer of consumer complaint.
6. No order as to cost.
7. Registry is directed to send certified copy of this judgment to the parties free of cost. Registry is further directed to send copy of this judgment to the District Commission Vadodara (main) and to the District Commission Vadodara (Additional) through E-mail in PDF format for taking necessary action.
Pronounced in open court today on 5th April, 2023.
[Ms. A.C. Raval] [Justice Mr. V.P.Patel]
Member President
ZARNA A-823-2022 Page 6 of 6