National Consumer Disputes Redressal
In Re: Authorised Representative Of The ... vs Unknown on 2 January, 2003
ORDER
D.P. Wadhwa, J. (President)
1. It is the normal practice to record appreciation of the assistance rendered by the amicus curiae at the close of the order. In the present case, however, we make a departure. We record our appreciation of the able assistance rendered by Mr. Gopal Subramaniam, Senior Advocate which has benefited us in writing this order. This Commission is grateful to him for the deep study he made on the subject and presented all the points with clarity and with his usual lucid manner. We also record our appreciation of the assistance rendered by Mr. Dayan Krishnan, Ms. Sonia Sharma and Ms. Astha Tyagi who were appointed amicus curiae to assist Mr. Gopal Subramaniam. It was gracious of Gopal Subramaniam to say that but for the research made by the assisting counsel he would not have been able to present his arguments.
2. We suo motu issued notice in the matter of Authorised Representative being Revision Petition No.1017/2002 and for that we recorded our order on 14.6.2002 which gives indication of the issues involved in the case, and we quote:
"Registrar of the National Consumer Disputes Redressal Commission has placed before me a letter dated 15th April 2002 received from the Registrar of the Tamilnadu State Consumer Disputes Redressal Commission enclosing therewith a copy of the order dated 10th April, 2002 in Original Petition No. 104/2000 pending before the State Commission. The order is of as many as 81 pages and then there are Annexures running into 8 pages. The order covers many issues which have far reaching consequences and in fact some of the issues, I do not find to be quite related to the decision of the complaint pending before the State Commission.
A complaint was filed before the State Commission by the widow mother and two minor children of deceased K.N. Subramanian. The complaint relates to medical negligence of Dr. Rangabashyam and the Apollo Hospital Chennai. The complaint was filed through Shri N. Chandrasekaran as an authorized agent. He is the Secretary of Consumer Welfare Foundation, Chennai. State Commission noticed that the complaint was signed only by the widow and Shri N. Chandrasekaran also signed the complaint as a Counsel for the complainant. A vakalat has also been filed in the name of Shri S. Natarajan, Advocate and Shri N. Chandrasekaran as Counsel for the complainant. It appears at a later stage on 14.2.2002, Shri N. Chandrasekaran suo motu revoked the vakalat in favour of Shri S. Natarajan. Shri N. Chandrasekaran has also filed an authorization letter from the widow to represent her case before the State Commission. This authority was not signed by the widow as the guardian of her minor children. Mother of the deceased did not give any authority in favour of Shri N. Chandrasekaran to represent her case .
Deceased, Subramanian had breathed his last on 3.5.1998. The complaint was filed within a period of limitation and it came for admission before the State Copmmission on 14.2.2002, almost four years after the death of Subramanian. State Commission immediately raised a doubt as to whether it was legally permissible for an authorized agent like Shri N. Chandrasekaran to have a right of audience before even the complaint was admitted. State Commission in order to answer this question, issued notices to various Bar Associations and Consumer Associations and also affixed a notice on the Notice Boards of the State Commission and District Forums based in Chennai. State Commission was of the view that Rule-4 subclause (8) of the Tamilnadu Consumer Protection Rules, 1988 could not at all have any legal effect and the said sub-rule must have to be struck down as null and void or must have to be read down in conformity with the statutory provisions of the Consumer Protection Act, 1986. According to the State Commission, the Act itself did not contain any statutory provisions at all empowering the parties to engage an authorized representative on their behalf to represent their case. In this view of the matter the State Commission felt that such an authorized representative of the litigant complainant-consumer not being an Advocate could not at all be given the right of audience though there was no prohibition for the party himself to represent his own case under the Act. After quite marathon discussion expressing its views on some of the questions which we will consider at a later stage, the State Commission did not permit Shri N. Chandrasekaran the right of audience and proceeded to state as under:-
'There is no bar for the complainant to protect her hues of views as respects existence of prima facie materials in the complaint for admission. No purpose will be served by her being asked to argue on her behalf when especially when we on perusal of the averments in the complaint and other documents filed along with it came to the conclusion that there are prima facie materials available in the complaint for admission and therefore we admit the complaint and direct the Registry to issue notice to the parties returnable by 28.5.2002'.
To this extent, we would not like to interfere with the order of the State Commission. However, we do not know the fate of the complaint as of today.
During the course of discussion, State Commission referred to the provisions of the Constitution of India, Advocates' Act 1961, Consumer Protection Act, 1986 and the rules framed thereunder by the Central Government and the Tamil Nadu State Govt., Civil Procedure Code and the Civil Rules of Practice of Madras High Court, Criminal Procedure Code and various Judgements of the High Courts and the Supreme Court. Thereafter, the State Commission has observed as under:- 'Thus it is crystal clear that the provisions adumbrated under the Act, 1986 enables a voluntary consumer organization registered under the Compaanies Act, 1956 or under any other law for the time being in force to present a complaint for and on behalf of the aggrieved complainant /consumer in the absence of himself virtually figuring and filing a complaint as a complainant. Authorised agent appear for and on behalf of the complainant or the opposite party in their absence before the Forum on the hearing dates. The authorized agent either for the complainant or for the opposite party is not at all empowered to make a representation for and on behalf of the party he is appearing for. His appearance before the hearing date is actually to dispense with the presence of the complainant or the opposite party on the date of hearing and nothing further. As such, the statutory provisions adumbrated under the Act, 1986 does not give the right of audience either to the voluntary organizations registered under the provisions of the Companies Act, 1956 or any other law for the time being in force or in favour of the authorised agents either for the complainant or for the opposite party. It appears that the salient provisions in the Act, 1986 had been adumbrated in rather a bid to avoid an order being passed, dismissing the complaint for the default of the complainant or an order being passed exparte on merits or for the avoidance of the technical objection of locus-standi that may emerge for the complaint to be filed by such associations instead of by the aggrieved party/complainant/consumer and nothing further'.
This has raised a substantial issue of law which, as stated earlier, have far reaching effect. It does appear, prima facie, the State Commission has acted in exercise of its jurisdiction illegally and/or with material irregularity. We would, therefore, in exercise of our jurisdiction under clause (b) of Section 21 of the Consumer Protection Act, 1986 call for the records of the State Commission limited to the aforesaid questions while, at the same time, allowing the complaint pending before the State Commission to proceed as per the directions issued by the State Commission.
In paras 60 to 64, State Commission has referred to certain observations pertaining to functioning of Voluntary Organizations in the State of Tamilnadu which we find are not relevant to the issue pending before the State Commission. These observations, therefore, as far as the complaint before the State Commission is concerned, are not relevant and we do not think these should have formed part of the order.
Accordingly, let notice issue to the following:-
1. Consumer Welfare Foundation, Through Shri N. Chandrasekaranan, Secretary, Consumer Welfare Foundation, Chennai.
2. The Chairman, Apollo Hospital, Greams Road, Chennai-600 006.
3. Dr. N. Rangabashyam, Ramana Surgical Clinic, 38, Venkatnarayana Road, T. Nagar, Chennai-17.
4. Common Cause,] Through its Director Common Cause House, 5, Institution Area, Nelson Mandela Road, Vasant Kunj, New Delhi-110 070.
5. Consumer Co-ordination Council, 52, Qutab Vew Apoartments, Shaheed Jit Singh Marg, New Delhi.
6. Consumer Education & Research Centre, Through Pfrof. Manubhai Shah, Managing Trustee, 'Suraksha Sanskool', Thaltej, Sarkhej Gandhinagar, Highway, Ahmedabad-38- 054, Gujarat.
7. Consumer Protection Cell, Through Shri B. Vaidyanathan, C-66, Sector-2, Rourkela, Sundergarh-769 006.
8. Dr. Sriram Khanna, VOICE, 108, Golf Lines, New Delhi-3.
9. Federation of Consumer Organisations Tamil Nadu (FEDCOT), 32-A, 1st Floor, Daniel Thomas Nagar, Thanjavur, Thanjavur-613 007.
10. Mumbai Grahak Panchayat, Grahak Bhavan, Sant Dyaneshwar Road, Behind Cooper Hospital, Ville Parle (West), Mumbai-400 056 In view of the importance of the issue we would request Shri Gopal Subramanium, Senior Advocate, B-5/7, Safdarjung Enclave, Africa Avenue, New Delhi to assist us in the matter. We would request at the same time Shri Dayan Krishnan, Advocate, S-69, Panchsheel Park, New Delhi to assist Shri Gopal Subramaniam, Advocate. At the same time we appoint Ms.Astha Tyagi and Ms. Sonia Sharma, Advocate, 12/19, (L.G.F.), West Patel Nagar, New Delhi-110 008 to do the research and for rendering assistance to Shri Gopal Subramanium. They shall be paid Rs.2,500/- each from the legal aid to meet their out of pocket expenses. A copy of the order shall be sent along with the notice."
3. We have heard arguments in considerable detail addressed by various counsel and voluntary consumer organizations. Principal arguments have been addressed no doubt by Mr. Gopal Subramaniam. He referred to the preamble of the Consumer Protection Act, 1986('Act' for short) and other provisions in this Act and various other laws which find mention in the impugned order.* During the course of arguments we have been referred to various decisions of the Madras High Court in the case of Thayarammal v. Kuppuswamy Naidu AIR 1937 Madras, 937, Bombay High Court in the case of Madura Coats v. S.L. Mehendle 1998 1 CLR 199 and of the Supreme Court in the case of T.C. Mathai vs. District and Sessions Judge (1999) 3 SCC 614.. on order III of the Section 2 (1):
"(b) 'complainant means' -
(i) a consumer or
ii)any voluntary consumer association registered under the companies Act, 1956 (1 of 1956) or under any other law for
the time being in force; or
(iii) the Central Government or any State Government, who or which makes a complaint;
(iv) one or more consumers, where there are numerous consumers having the same interest;
who or which makes a complaint;
Code of Civil Procedure and to the speech of the Minister of Parliamentary Affairs, Food and Civil Supplies
while introducing the Consumer Protection Bill, 1986 to the Parliament and the United Nations General Assembly - Resolution 39/248.
Other decisions of the Supreme Court on the objects of the Consumer Protection Act namely Laxmi Engineer Workings vs. PSG. Industrial Institute (1995) 3 SCC 583, Indian Medical Association vs. V.P. Santha .... (1995) 6 SCC 651, Indian Photographic Company Ltd. vs. H.D. Shourie (1999) 6 SCC 428, Lucknow Development Authority vs. M.K. Gupta (1994) 1 SCC 243 and of the Bombay High Court in Sanjay r. Kothari & Anr. Vs. The South Mumbai Consumer Disputes Redressal Forum & Anr.( Writ Petition No.1147/2002 decided on 4th September, 2002) have also been referred to.
It is not necessary for us to burden this judgment by quoting the speech of the Hon'ble Minister in detail and the various judgments cited before us except to note a few.
(c ) 'complaint' means any allegation in writing made by a complainant that -
(i)an unfair trade practice or a restrictive trade practice has been adopted by any trader;
(ii) the goods bought by him or agreed to be bought by him suffer from one or more defects;
(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;
(iv) a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods;
(v) goods which will be hazardous to life and safety when used, are being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods, with a view to obtaining any relief provided by or under this Act;
Mr. Subramanium submitted that if we consider various prouncements of the Supreme Court and of the High Courts on Order - III of Code of Civil Procedure it could be that under the general prevailing law no authorized agent could claim to possess a right of audience in the Court of Law unless specific permission of the Court was obtained and that the word 'appear' in Order III does not include right of audience before a Court. But then the objects of the Act and various pronouncements of the Supreme Court rather go to show that authorized representative can certainly have a right of audience and his right is not merely confined to appearance before a Consumer Forum. Mr. Subramanium referred the Division Bench judgment of the Bombay High Court in the case of Sanjay R. Kothari & Anr. Vs. the South Mumbai Consumer Disputes Redressal Forum and he said that it laid a correct law. He quoted the concluding para of the judgment
(d) 'consumer' means any person who -
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred
(ii) payment and includes any user of such goods other than the persons who buys such goods for consideration paid or promised or partly paid or party promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;
Explanation- For the purpose of sub-clause (i) 'commercial purpose' does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
which is as under:
"We, thus conclude that a party to the proceeding before the District Forum/State Commission has right to authorise a person of his choice to represent him and appearance of such agent authorised by the party on the date of hearing before District Forum/State Commission is not restricted to physical appearance but includes in terms of Rule 4(7) 4(8) or 9(6) of Rules of 2000 to examine and cross examine the witness, address the court and take part in the proceedings as the case may be. Any other view may defeat the very objectives for which Act of 1986 was enacted.."
This judgment of the Bombay High Court was also quoted in extenso to show that the impugned order of the Tamil Nadu State Commission was not correct. The impugned judgment of the learned State Commission was also noticed in the judgment of the Bombay High Court.
(e)'consumer dispute' means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint;
(f).....................
(g).....................
(h).....................
(i).................... .
(j).....................
(k).....................
(l).....................
(m)'person' includes -
(i)a firm whether registered or not;
(ii)a Hindu undivided family;
(iii)a co-operative society;
(iv)every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not;
(n)'prescribed' means prescribed by rules made by the State Government, or as the case may be, by the Central Government under this Act;
(nn.....................
(o) .....................
(p)....................
(q)................
(r)..................."
4. Some of the observations in the judgment of the Bombay High Court we quote:
"The right to appear, therefore includes right of addressing the Court, examining, cross-examining witnesses, oral submissions etc. If we accept the submission of Mr. Singhvi that 'to appear' mean only physical presence before the Consumer Forum for the purposes of filing complaint, appeal, or reply on behalf of the party, it would create a very strange situation before the Consumer Forum/State Commission. If an authorised agent alone appears on the date/dates of hearing, neither the hearing will proceed further nor the consumer forum will be able to either dismiss the complaint for default or decide it on merit or decide it exparte. Consider situation like this: Section 12 of the Act of 1986 permits the aggrieved consumer to file complaint through recognised consumer association. In the complaint, consumer assocation appears through its office bearer as its recognised agent. Does the law i.e. Act of 1986 and Rules of 2000 compel such complainant-association who is espousing the cause of consumer, engagement of legal practitioner to address the Consumer Forum. Answer is simple no. Once the complaint is filed by aggrieved consumer through recognised consumer association, the authorised agent appearing for such recognised consumer association is expected to take the complaint to logical conclusion by full participation in the complaint proceedings which may include addressing the
3. Act not in derogation of any other law.- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
12. Manner in which complaint shall be made. - A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by -
(a ) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;
(b) any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;
(c ) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or
(d)the Central or the State Government.
Explanation.- For the purpose of this section, "recognised consumer association" means any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force.
Forum, examining and cross-examining the witnesses etc. Observation of principles of natural justice alone is sufficient in rendering justice to consumers.
.............................
In view of this, we have no hesitation in giving wider and comprehensive meaning to the expression 'to appear' appearing in Rule 4(7) and 8(7) of the Rules of 2000 to include addressing the Court, examining and cross-examining witnesses etc. We are of the considered view in the light of statutory provisions like section 2(1)(b)(ii) and section 12 of he Act of 1986 and Rule 4(7) and 8(7) of Rules of 2000 tht right of audience inheres in favour of authorised agents of the parties to the proceedings before District Consumer Forum and State Commission and such right is not inconsistent or in conflict with the provisions of Advocates Act".
.......................................
25. It is now well settled position of law that the right conferred on advocates under the provisions of the Advocates Act is a statutory right and not a fundamental right guaranteed under the Constitution. A person who is not an advocate cannot practise law. Any person other than party to the proceedings or advocate cannot claim right of audience before the Court, tribunal or authority until it is provided by law or such person is specifically permitted by such court, tribunal or authority. This is in sum and substance is the scheme of Sections 29, 32 and 33 of the Advocates Act, 1961 and Section 14 of Bar Councils Act, 1926 which is still operating as Chapter IV of Advocates Act, 1961 has not fully come in opertion and Section 14 of Bar Council's Act, 1986 cannot be said to have been repealed.
...............................................
30. Power to make rules. (1) The Central Government may, by notification make rules for carrying out the provisions contained in clause (a) of sub-section (1) of Section2, clause (b) of sub-section (2) of section 4, sub-section (2) of section 5, clause (vi) of sub-section (4) of section 13, section 19, sub-section (2) of section 20 and section 22 of this Act.
(2) The State Government may, by notification, make rules for carrying out the provisions contained in clause (b) of sub-section (2) and sub-section (4) of section 7, sub-section (3) of section 10, clause (c) of sub-section (1) of section 13, sub-section (3) of section 14, section 15 and sub-section (2) of section 16.
29. It goes without saying that if authorised agent appearing for the party to the proceedings misbehaves or does not behave in sober fashion or exhibits violent behavior or does not maintain the decency and decorum of the District Forum or State Commission or interferes with the smooth progress of the case or like reason, it is always open to such District Forum or State Commission to pass an appropriate order refusing such authorised agent the audience in a given case".
5. In our view Bombay High Court has taken correct view of the law on the subject. Bombay High Court was considering the definition of the word 'agent' as given in Rules 4(7), 8(7) and 9(6) of the Maharashtra Consumer Protection Rules, 2000 and same is the definition of 'agent' in the Tamil Nadu Consumer Protection Rules, 1998 as given in Rules 4(8) and 9(6).
6. It may also be noticed that the 'agent' as defined in the Central Consumer Protection Rules, 1987 means 'a person duly authorized by a party to present any complaint, appeal or reply on its behalf before the National Commission' and this definition of 'agent' is same as in the Rules of Tamil Nadu and Maharashtra. It may also be noticed that when definitions are given in any Act/Rules these always start with the words 'unless the context otherwise requires'.
The Powers-of-Attorney Act, 1882, 'power-of-attorney' includes any instrument empowering a specified person to act for and in the name of the person executing it (Section 1A). Section 2 of this Act provides for execution of power-of-attorney. Similar is the definition under Section 2(21) of the Stamp Act, 1899.
"2. Executive under power-of-attorney.- The donee of a power-of-attorney may, if he thinks fit, executive or do any instrument or thing in and with his own name and signature, and own seal, where sealing is required, by the authority of the donor of the power, and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof".
7. When the Act specifically refers to certain provisions of the Code of Civil Procedure as applicable to proceedings before a Consumer Forum it is not the requirement of law to refer to other provisions of the Code. Some of the provisions of the Code may be made use of on the ground of justice, fair play, equity and good conscience. Even then those provisions can be modified to suit the procedure for deciding a consumer dispute before a Consumer Forum. In this view of the matter it was not at all necessary for the State Commission to refer to Order III of the Code which contains provisions for recognised agents and pleaders for their appearance before a court of law. There cannot be any distinction before a Consumer Forum for an authorised agent for appearing or acting before a Consumer Forum. Authorised agent and voluntary consumer organization as defined in the Act have certainly right of audience before the Consumer Forum and that right cannot be taken away by referring to the provisions of the Code which have no application. Act itself is a departure from the ordinary procedure prescribed in the Code. We have to break the shackles of a procedure which is too technical in civil jurisprudence.
8. Advocates Act, 1961, Chapter-IV prescribes provisions for right to practise . Section 29, 30, 32 and 33 falling in this Chapter have been referred to being relevant.
"29. Advocates to be the only recognised class of persons entitled to practise law.- Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.
30. Right of advocates to practise. - Subject to the provisions of this Act, every Advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends,-
(i) in all Courts including the Supreme Court;
(ii)before any tribunal or person legally authorised to take evidence; and
(iii)before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.
9. Noting the written submission of Mumbai Grahak Panchayat where question has been raised whether a person who is neither a part of consumer organization nor related to the consumer in any manner nor a practicing lawyer can appear on a regular basis before a Consumer Forum as an authorized person, Mr. Subramanimum submitted that there was considerable merit in the submission that such a practice might be detrimental to the working of the Consumer Forum as such person not having any linkage with a consumer organization may become parallel body which might in fact exploit a consumer rather than subserve his interest as there was no accountability attributable to such persons. In this context Mr. Subramanium referred the decision of the Supreme Court in the case of Harishankar Rastogi vs. Girdhari Sharma (1978) 2 SCC 165 where the Supreme Court observed:
"Judges may suffer if quarrelsome, ill-informed or blackguardly or blockheadly private representatives filing arguments at the court. Likewise, the party himself may suffer if his private representative deceives him or destroys his case by mendacious or meaningless submissions and with no responsibility or respect of the court. Other situations, settings and disqualifications may be conceived of where grant of
32. Power of Court to permit appearances in particular cases. - Notwithstanding anything contained in this Chapter, any Court, authority or person may permit any person, not enrolled as an advocate under this Act to appear before it or him in any particular case.
33. Advocates alone entitled to practise. - Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any Court or before any authority or persons unless he is enrolled as an advocate under this Act.
permission for a private person to represent another may be obstructive, even destructive of justice. Indeed, the Bar is an extension of the system of justice; and advocate is an officer of court...."
10. On the argument as to the rights of advocates under the Advocates Act vis-à-vis right of consumer organization Mr. Subramanium submitted that this was an argument which was stated to be rejected. He said first of all Section 30 of the Advocates Act had not been notified and that apart Supreme Court has upheld the legislation depriving the right of lawyers from appearing in courts, for example, the Labour Court. In such circumstances, when lawyers can themselves appear before the Consumer Forum it cannot be said that there is any deprivation of their rights. It is settled principle of law that when there are special two enactments, the latter enactment would prevail and in this case, the latter enactment is the Consumer Protection Act, 1986.
11. VOICE (Voluntary Organization in Interest of Consumer Education) did not agree with the submission of Mr. Deshpande appearing on behalf of Mumbai Grahak Panchayat that the definition of 'agent' should be given a limited meaning. Reference was made to the meaning of 'agent' Code of Civil Procedure - ORDER-III:
1.Appearances, etc., may be in person, by recognized agent or by pleader - Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:
Provided that any such appearance shall, if the Court so directs, be made by the party in person. in the General Clauses Act, 1897 and in Blacks Law Dictionary. Word 'person' has also been defined in the Act itself and it includes "(i) a firm whether registered or not; (ii) a Hindu undivided family; (iii) a co-operative society; (iv) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860)) or not".
12. While a Consumer Forum will permit an authorised agent to appear before it but authorised agent will not be one who has used this as a profession to earn his livelihood. A Consumer Forum has to guard itself against unscrupulous authorised agents who exploit the consumer for their own benefit and have no interest of the consumer to his heart and stranger to consumer movement. A Consumer Forum can certainly examine the qualification, relationship and antecedent of an authorised agent when he represents a consumer. It can certainly forbid such an authorised agent for appearing before it in any particular complaint, appeal or revision. While Bar Council of State or Bar Council of India exercises control over the conduct of a lawyer there is no such control over a 'professional' authorised agent and even in the case of voluntary consumer organization Code of Conduct* has been formulated by Government of India. Complainants are certainly pouring in regarding exploitation of consumers
2. Recognized agents:- The recognized agents of parties by whom such appearances, applications and
3. acts may be made or done are:-
(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of parties not resident within the
(c) local limits of the jurisdiction of the Court within which limits the appearance, application or
(d) act is made or done, in matters connected with such trade or business only, where no other
(e) agent is expressly authorized to make and do such appearances, applications and acts.
by some of the of the voluntary consumer organizations. That certainly cannot be permitted and in that eventuality Regulations to be framed has to prescribe for blacklisting of such a voluntary consumer rganization. A Consumer Forum has to guard itself from touts and busybodies in the garb of attorney holders or authorized agents in the Consumer Forums exploiting the already harassed gullible and innocent consumer.
A voluntary consumer organization can certainly engage a counsel or it can itself represent through its office bearer as per the rules governing it. A question may arise where a consumer himself is a complainant along with a voluntary consumer organization and the complainant may choose to withdraw from the complaint. Can voluntary organization be allowed to proceed with the complaint? If a dispute affects the complainant individually perhaps not, but if the issue involved concerns unfair trade practice or restrictive trade practice it may be so.
No form is prescribed for authorising an agent to appear before a Consumer Forum. Authorisation can be by way of special Power of attorney executed on a non-judicial stamp paper or even on a plain paper duly attested. The power of attorney holder may even engage a counsel if authorised to do so.
When there is a conflict between the rules and the substantive law, a Tribunal can certainly while taking note of the rule follow the substantive law or may read down the rule so that there is no conflict between it and the substantive law. A Tribunal has no jurisdiction to hold that a rule to be void and then strike it down.
Mr. S. Pushpavanam, Secretary, consumer Protection Council, Tiruchirappali , in his written submissions pointed out the difficulties which a consumer might face in engaging a lawyer. He said anyone who tried to get the service of free legal aid would know how cumbersome it was and how unhelpful were the lawyers. He said one could not expect professionals like lawyers to function like service-minded NGOs. He also submitted that the question posed in the impugned order of the Tamil Nadu State Commission was never raised and nobody doubted the right of NGOs to appear and plead before the Consumer Forum.
Written submissions were also filed by Consumer Co-ordination Council, New Delhi, Consumer Protection Council, Rourkela through its Secretary, Mr. B. Vaidyanathan, SMN Consumer Protection Council, though its Secretary V.Y. Yegnaraman, Federation of Consumer Organization , Orissa through its President Mr. K.N. Jena, Common Cause, through Mr. H.D. Shourie, Director, Consumer Welfare Foundation, Chennai through its Secretary Mr. N. Chandrasekaran , Wolrd of Mothers through Mr. K. Acharya, Member Secretary, Mumbai Grahak Pachayat through Mr. Shirish V. Deshpande and Consumer Education and Research Centre (CERC). They all speak with one voice that the impugned order of the State Commissions is not correct. It was submitted by Mr. H.D. Shourie that a representative of recognized Consumer Organization could not only file a complaint but could also continue to appear before the Consumer Forum and pursue the case on behalf of the consumer. CERC said that the impugned order was retrograde step for the consumer movement and that the impugned order is opposed to the legislative intent as set out in the Act and against the judicial pronouncements giving meaning to the objectives of the Act.
Mr. Subramanium concluded his argument with the following submission:
"Keeping in mind that the composition of consumer courts is such that it includes not only judicial members but also non-judicial members from the field of administration and social work this envisages a new approach, which is to be shorn of the shackles of procedural law so that access to justice is easy and simple. In this context, to say, that a consumer association cannot plead the case of the consumer or an association cannot appear before a consumer court will be to defeat the purposes of the Act itself. Therefore Recognized Consumer associations should have the right of audience before the fora under the Act".
13. After superb exposition of the law on the subject we do not think we can add anything to what Mr. Subramanium said in his submissions and with which we agree.
14. To the extent aforesaid impugned order of the Tamil Nadu State Consumer Disputes Redressal Commission is modified.