National Consumer Disputes Redressal
Con Décor Rep. By Its Managing Partner vs Smt. Smritikana Ghose And Anr. on 16 April, 2002
Equivalent citations: II(2003)CPJ34(NC)
ORDER
D.P. Wadhwa, J. (President)
1. It is the opposite party who is petitioner before us. Respondents (Complainants) had given him the job of interior decoration of their flat and their complaint against the petitioner alleging deficiency in services was allowed by the District Forum which order was affirmed by the Andhra Pradesh State Consumer Disputes Redressal Commission. Petitioner now challenges the order of the State Commission on three grounds:
(i) He was not given right to cross-examine the local commissioner, a lawyer, who was appointed to report on the work done by the petitioner in the flat.
(ii) The local commissioner did not postpone the date of inspection of the flat though the petitioner had requested for the same.
(iii) District Forum had no power to make an interim order appointing a local commissioner.
2. Complainants, who are husband and wife, purchased a flat in a residential complex in the town of Visakhapatnam, possession of which was given to them in April/May, 1999. They wanted to occupy the flat after some internal decoration by December, 1999. They invited quotations for the purpose and the petitioner gave his quotation for a sum of Rs.6,38,795/-. That was in May 1999. Petitioner wanted advance payment in the name of one Mr. K. Bipin Kumar. Complainant did pay a sum of Rs.3,19,397/- being the 50% of the amount as quoted by the petitioner. This was paid by cheque dated 17.5.1999. After receiving this amount petitioner did start the work of interior decoration. Complainants who were residents of Calcutta were visiting flat in Visakhapatnam. They were not satisfied with the quality of work and the material used by the petitioner. They found various defects in the working and required the petitioner to make changes. On 8.6.1999 petitioner sent a letter requesting to the complainants to pay a sum of Rs.2.00 lakhs as further advance payment. He sent details of expenditure so far incurred by it which amounted to Rs.3,16,500/-. Complainants by means of their cheque dated 23.6.1999 paid a sum of Rs.1,50,000/-. Petitioner sent another quotation for Rs.9,88,950/-. By this time petitioner had already been paid Rs.4,69,397/-. Petitioner sent yet another quotation now for Rs.11,13,380/-. Complainants wanted the bills for the work done by the petitioner. It is not necessary for us to detail further facts in this petition except to note that complaining deficiency in service, complainants went to the District Forum. They said only work of Rs. 1.00 lakh had been executed and they therefore, wanted Rs.3,69,397/- back.
3. Since there was a dispute as to the quality and quantity of the work done by the petitioner, complainants requested the District Forum to appoint a local commissioner for the purpose. A local commissioner was appointed who filed her report. She had submitted that so far expenditure incurred by the petitioner was Rs.1,09,600/-. District Forum concluded that at the most petitioner would have incurred an expenditure of Rs.2.00 lakhs. It was, therefore, held that petitioner was liable to refund Rs.2,69,397/- out of the amount of Rs.4,69,397 received by it. District Forum observed that three quotations were given one after another would raise certainly a suspicion and that the bills submitted by the petitioner were not supported by any material, receipts etc. Complaint was fixed for hearing after number of adjournments petitioner came up with an application for permission to cross-examine the local commissioner. District Forum noticed that when order was made appointing local commissioner, petitioner went in appeal before the State Commission also filed writ petition in the Andhra Pradesh High Court which was dismissed and that petitioner tried to delay execution of the warrant of appointment of local commissioner. District Forum also noticed that petitioner did not co-operate with the local commissioner in executing warrant. Time was granted to the petitioner to file objection to the report of the local commissioner. District Forum did not agree to the request of the petitioner for cross-examination of the local commissioner. It was observed that there was no evidence placed by the petitioner to show that the observations of the local commissioner were wrong or that estimate was incorrect. After detailed examination of the facts of the case, District Forum allowed the complaint and directed the petitioner to pay to the complainants the sum of Rs.2,69,397/- with interest @ 12% per annum from the date of the complaint till payment. Complainants were also allowed cost of Rs.1,000/-.
4. Petitioner went in appeal before the State Commission. State Commission reappraised the evidence and found no merit in the appeal. State Commission also noticed that it was on the request of the petitioner himself local commissioner fixed the date 22.4.2000 for execution of the warrant and asked both the parties to file their memos and be present at the flat with their respective advocates. However, on the notice so issued by the local commissioner, advocate for the appellate wrote on the notice that he had informed the petitioner but he had left for Kerala and would be back only on 30.4.2000. He, therefore, wrote that date be fixed after giving due notice to the petitioner. The matter before the District Forum had been posted for 4.5.2000. Local commissioner, however, executed the warrant by visiting the flat on 22.4.2002. State Commission also noticed that as per the air ticket shown by the petitioner, he left Visakhapatnam on 21.4.2000 when he was aware that the warrant was to be executed by the local commissioner on the next day and the report was to be submitted to the District Forum by 4.5.2000. State Commission was, therefore, of the view that petitioner should have made arrangements for somebody to be present at the time of visit of the local commissioner. Even the advocate of the petitioner failed to appear at the appointed time and place. State Commission also observed that instead of persisting his right to cross-examine the local commissioner, petitioner should have filed his own estimate of the work done with supporting evidence. This the petitioner did not do. State Commission also noticed that plea of the petitioner that as per the oral contract, he was not obliged to give any bills or produce any receipt was not found acceptable by the District Forum. Before the State Commission as well in the material papers filed by the petitioner, the only documents filed by him were receipts of money received by him. Finding no merit in the appeal, State Commission dismissed the same and affirmed the order of the District Forum.
5. Aggrieved, petitioner has challenged the order of the State Commission on the grounds aforementioned. It could not be said that the order passed by the District Forum appointing the local commissioner was without jurisdiction. When it said that forum under the Consumer Protection Act has no power to pass interim order that refers to the grant of any interim relief to the party. Appointing local commissioner is a part of proceedings and cannot be said to be an order granting any relief to the complainants. This objection is quite frivolous.
6. The conduct of the petitioner shows that he was trying to delay proceedings. He was aware of the date of the visit of the local commissioner to the flat on 22.4.20000 and yet he left Visakahapatnam and went a day earlier. He had challenged the order of appointment of local commissioner in the High Court in the writ petition which was dismissed. He was represented by an advocate who could have been instructed to be present at the time of inspection by the local commissioner. In any case he could have instructed any other representative to be present at that time. It must be noticed that the date for return of the commissioner was 4.5.1999 on which date the report was to be submitted. Conduct of the petitioner shows that he wanted to delay the proceedings before a forum under Consumer Protection Act which is to decide the dispute in a summary proceeding. In our view, local commission was right in not agreeing to the request of the petitioner to adjourn the date of her inspection and visit any other day. If the petitioner or his representative was not present it is the petitioner who is himself to blame.
7. Mr. Sharma, learned counsel for the petitioner submitted that the principles of natural justice have been violated inasmuch as local commissioner did not adjourn his visit and petitioner was denied the right of cross-examination.
8. We must state that any request for adjournment in the proceedings before consumer forum unless circumstances are beyond the control of the party is quite abhorrent. There was no justification whatsoever for the petitioner to seek another date from the local commissioner and for postponement of her visit to the site. State Commission had recorded that it was on the request of counsel for the petitioner the date 22.4.2000 was fixed and when formal notice was issued for this date, counsel for the petitioner recorded of non-availability of the petitioner for 22.4.2000 and stating that he would be back only on 30.4.2000. The complaint itself was posted for 4.5.2000 for filing the report. It was for the petitioner to make arrangement to appear either himself or through counsel or any authorised representative. In our view, local commissioner rightly did not agree to the postponement . No fault can be found with that. The order of the District Forum appointing local commissioner was challenged by the petitioner in the High Court in writ petition. Then there was number of adjournment for filing arguments when application for cross-examination of the local commissioner was made. The conduct of the petitioner shows that he wanted to delay the proceedings at all levels. District Forum with which State Commission agreed observed that petitioner could himself have filed his own estimate of the work done with evidence which he failed to do so.
9. Mr. Sharma referred to an earlier decision of this Commission in the case of Narmada Cement Co. Ltd. Vs. Hotel Nandadeep & Ors.- I(1992) CPJ 299 (NC) to contend that to deny the right to cross-examine a crucial witness is violation of the rules of natural justice. In this case, the petitioner wanted to cross-examine one Dr. Krishnaswamy an expert who had given the report of the quality of the cement. The local commissioner had been appointed to record the evidence of expert. Cross examination was to be done before the local commissioner. It could not be done on that particular day because expert himself was not present. It was submitted that no proper notice of the postponement of the date was given for the cross examination of the expert. It was in these circumstances that this Commission said proper opportunity was not given to cross-examine by the local commissioner. We are unable to appreciate how this judgment helps Mr. Sharma. But there is another judgment of this Commission in the case of Salgaocar Medical Research Centre & Ors. Vs. R.B. Raikar & Ors. - II(1996) CPJ 209 (NC) . This case pertains to medical negligence. An operation was performed on the complainant at the Salgaocar Medical Research Centre by Dr. Narendra Parulekar . Complainant had suffered multiple injuries due to an accident. Even after the operation complainant suffered physical agony and ultimately he was again operated upon by Dr. Bhansali at Jaslok Hospital, Bombay. Cause of suffering of the complainant was that during the first operation a gauze towel of 6"x6" was left in the stomach of the complainant. Complainant alleged medical negligence by the hospital and Dr. Parulekar. Both the hospital and Dr. Parulekar alleged that they were not given opportunity to cross-examine Dr. Bhansali who though had flown from Bombay and was present in the Court and had filed an affidavit. It was stated that State Commission did not give permission to cross-examine Dr. Bhansali on the ground that under Section 13(4)(iii) of the Consumer Protection Act, 1986 evidence on affidavit was legal and further held that affidavit was sufficient to establish negligence on the party of hospital and Dr. Parulekar. This Commission was of the view that opportunity to cross-examine Dr. Bhansali should have been given and went on further to hold that cross-examination was a part of principle of natural justice. It will be seen that it was the reputation of the hospital and Dr. Parulekar who were accused of medical negligence on account of the affidavit of Dr. Bhansali who had later operated upon the complainant. Both the hospital and Dr. Paruler certainly had right to seek cross-examination of Dr. Bhansali and that is certainly not the case here.
10. Whether right to cross-examine a witness is a part of the principle of natural justice reference may be made to the to a Constitution Bench decision of the Supreme Court in the case of State of Jammu and Kashmir v. Bakshi Ghulam Mohammad [1966] Supp. SCR 401. In this case the very question of right of cross examination as a principle of natural justice was involved. This case arose out of the provisions of Jammu and Kashmir Commission of Inquiry Act 1962 which are in pari materia with the provisions of Commission of Inquiry Act, 1962 . We may quote the relevant Sections 4(c ) and Section 10 of that Act as under:
"4(c ) The Commission shall have the power of a Civil Court, while trying a suit under the Code of Civil Procedure Svt. 1977, in respect of the following matters, namely:-
(a) summoning and to enforce the attendance of any person and examing him on oath;
(b) .....
(c) receiving evidence on affidavits."
"10. (1) If at any stage of the inquiry the Commission considers it necessary to inquire into the conduct of any person or is of opinion that the reputation of any person is likely to be prejudicially effected by the inquiry, the Commission shall give to that person a reasonable opportunity of being heard in the inquiry and producing evidence in his defence;
Provided that nothing in this sub-section shall apply when the credit of a witness is being impeached.
(2) The Government, every person referred to in sub-section (1) and with the permission of the Commission, any other person whose evidence is recorded by the Commission:-
(a) may cross-examine any person appearing before the Commission other than a person produced by it or him as a witness,
(b) may address the Commission (3) ..................................
11. The question before the Supreme Court was the right to cross-examine based on statutory provisions as contained in Section 4(c) of the Act. Supreme Court also referred to the provisions of Order 19 Rule 1 of the Civil Procedure Code which may be quoted as under:
"Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:
Provided that it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit."
12. It was contended before the Supreme Court that power of the Commission of Inquiry therefore, to order a fact to be proved by affidavit are subject to proviso that power cannot be exercised when a party desires the production of the persons swearing the affidavits for cross-examining them.
13. This is how the Supreme Court dealt with the contention:
"The contention was accepted by the High Court. We take a different view of the matter. We first observe that the inquiry before the Commission is a fact-finding inquiry. Then we note that s.10 which, in our opinion, applies to a person whose conduct comes up for inquiry by the Commission directly, has a right to cross-examine only those persons who give viva voce evidence before the Commission against him. If s. 4 (c ) conferred a right to cross-examine every one who swore an affidavit as to the facts involved in the inquiry, then s.10(2) would become superfluous. An interpretation producing such a result cannot be right. It also seems to us that O.19 r. 1 has to be read with O.18 r. 4 which states that the evidence of the witness in attendance shall be taken orally in open court. It would appear, therefore, that O.19 r. 1 is intended as a sort of exception to the provisions contained in O.18 r. 4. The Act contains no provision similar to O.18 r.4. Therefore, when s.4 (c ) of the Act gave the Commission the power of receiving evidence on affidavits, it gave that as an independent power and not by way of an exception to the general rule of taking evidence viva voce in open court. It would be natural in such circumstances to think that what the Act gave was only the power to take evidence by affidavit and did not intend it to be subject to the proviso contained in O.19 r. 1. If it were not so, then the result really would be to require all evidence before the Commission to be given orally in open court. If that was intended, it would have been expressly provided for in the Act. We should here refer to Khandesh Spinning etc. Co. Ltd. V. Rashtriya Girni Kamgar Sangh[1960]2 SCR 841 where this Court dealing with a somewhat similar section like s. 4(c ) observed that facts might be provided by an affidavit subject to O. 19 R. (1). The observations appear to have been obiter dicta. In any case that case was dealing with a statute different from the one before us. The observation there made cannot be of much assistance in interpreting the Jammu and Kashmir Inquiry Act. The number of witnesses swearing affidavits on the side of the Government may often be very large. In fact, in this case the number of witnesses swearing affidavits on the side of the Government is, it appears, in the region of four hundred. The statute could not have intended that all of them had to be examined in open court and subjected to cross-examination, for then, the proceedings of the Commission would be interminable. We feel no doubt that the Act contemplated a quick disposal of the business before the Commission, for otherwise the object behind it might have been defeated. While on this topic we would impress upon the Commission the desirability of speedy disposal of the inquiry. For these reasons, in our view, s. 4(c) of the Act does not confer a right on a party appearing before the Commission to require a witness giving evidence by an affidavit to be produced for his cross-examination. The Commission would, of course, permit cross-examination in a case where it thinks that necessary. The view that we take should not put any party in any difficulty. He can always file affidavits of his own denying the allegations made in affidavits filed on behalf of the other party. If the evidence on both sides is tendered by affidavits, no one should be at any special disadvantage. We have also to remember that s.9 of the Act gives the Commission power to regulate its own procedure subject to any rules made under the Act. We find that the rules provide that evidence may be given by affidavits and the Commission may after reading it, if it finds it necessary to do so, record the evidence of the deponents of the affidavits and also of others; see rr.6,7, and 8. Rule 10 reproduces the restricted right of cross-examination given by s.10. Rule 11 says that in all matters not provided by the rules, the Commission may decide its own procedure. One of the matters covered by the rules is cross-examination of witnesses. So the rule contemplate cross-examination as a matter of procedure and the Commission is free to decide what cross-examination it will allow provided that in doing so it cannot go behind the rules relating to cross-examination. Section 9 of the Act has to be read in the light of these rules. All this, we think, supports the interpretation we have put on s. 4(c). We also feel that the procedure before a body like the Commission has necessarily to be flexible. We, therefore, reject the last contention:".
14. It will, therefore, be seen as per the law laid down by the Supreme Court that provisions of 4(c ) are similar to the provisions contained in Section 13(4) (i), (ii) and (iii). It may also be noticed that sub-section (3) of Section 13 of the Consumer Protection Act provides that when a procedure under sub-sections (1) and (2) had been followed the proceedings cannot be set aside on the ground that principles of natural justice had not been complied with.
15. As noticed above, when reputation of a person is involved he may insist on the right of cross-examination. But that principle cannot be extended in each and every case. It is for the Forum under the Consumer Protection Act to consider whether at all cross-examination is required or the matter could be disposed of on the basis of evidence by means of affidavits. Each case, therefore, will depend on the facts of that case and to read the judgment of this Commission in the case of Salgaocar Medical Research Centre vs. R.B. Raikar & Ors. otherwise would not correct in view of the law laid down by the Supreme Court in the case of Bakshi Ghulam Mohammad.
16. We would, therefore, hold that cross-examination of a witness or a party before a forum under the Consumer Protection Act is not a rule. It is only an exception. When reputation of a person, like a medical practioner in the case of alleged medical negligence is involved, he will have a right to cross-examine any person alleging professional negligence against him. When it is merely a question as to veracity of the statement of the witness, cross-examination cannot be permitted. In that case to contradict a party can certainly file his own affidavit or of any other witness. If cross-examination of a person is to be permitted in every case under the Consumer Protection Act, the whole object of this Act would be lost and there would hardly be any difference in proceedings before a Forum under the Act and a Civil Court. Many disputes involving high stakes and huge values are decided in writ jurisdiction by the High Courts and Supreme Court merely on the basis of affidavits. It, therefore does not appeal to reason that when Consumer Protection Act permits evidence to be led by means of affidavits right of cross-examination must be resorted to in every case. A forum under Consumer Protection Act must exercise extreme caution in permitting cross-examination.
17. We, therefore, do not find any merit in any of the questions raised by the petitioner. This petition is, therefore, dismissed