State Consumer Disputes Redressal Commission
Cj Darcl Logistics Ltd. vs The New India Assurance Co. Ltd. on 22 May, 2023
CJ DARCL LOGISTICS LIMITED VS THE NEW INDIA ASSURANCE COMPANY LIMITED 22.05.2023 Present: Mr. Manu Beri, Counsel for the revisionist. RA-10/2023 1.
The Applicant has preferred a review application under section 50 of the Consumer Protection Act, 2019 seeking the review/modification of the order 07.03.2023 and in specific, the direction to hear the appeal and application for condonation of delay, again on merits. The Review Petitioner has submitted that as per the Consumer Protection Act, 1986 ( hereinafter referred to as the 'Old Act') limitation period for preferring an appeal is 30 days which ended on 21.04.2022 as certified copy was received on 22.03.2022. Therefore, going by the Old Act there is a delay of only 8 days and sufficient cause for the said delay is shown by the medical records and affidavit of the legal officer filed with the present Review Petition. It is submitted that affidavit of the legal officer could not be filed with the Appeal & application for condonation of delay as she was ill and suffering from typhoid. It is further submitted that the order dated 07.03.2023 was filed without giving any opportunity to the Petitioner to file rejoinder and that the Petitioner could have brought on record the documents with the rejoinder which are now being filed with the Review Petition.
2. The bare perusal of the application filed by Applicant reflects that it has been preferred under section 50 of the Consumer Protection Act, 2019 ( hereinafter referred to as the 'New Act'). However, the entire proceedings of the present case took place according to the Old Act. Hence, before delving into the merits of the present application, it is imperative to ascertain whether the present application filed on 05.04.2023 for review of the order dated 07.03.2023 is maintainable under the New Act or not.
3. The repeal of a law shall not affect the previous operation of any enactment DISMISSED PAGE 1 OF 7 CJ DARCL LOGISTICS LIMITED VS THE NEW INDIA ASSURANCE COMPANY LIMITED i.e. the proceedings under Consumer Protection Act, 1986 shall continue for cases which had been filed prior to the implementation of Consumer Protection Act, 2019 on 20.07.2020. The same can be gauged through repeal and saving section (Section 107) of the Consumer Protection Act, 2019 which has been reproduced below:
"107. (1) The Consumer Protection Act, 1986 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.
(3) The mention of particular matters in sub-section (2) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of repeal."
4. We may also take the assistance of Section 6 (b) of the General Clauses Act, 1897 to further this view. Section 6 (b) of the General Clauses Act, 1897 has been reproduced below:
"6 Effect of repeal. : Where this Act, or any 1 [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or DISMISSED PAGE 2 OF 7 CJ DARCL LOGISTICS LIMITED VS THE NEW INDIA ASSURANCE COMPANY LIMITED anything duly done or suffered thereunder"
5. Moreover, unless the legislature explicitly provides that the amendment is retrospective in nature, it will be considered prospective. The aforesaid view has been taken by the Apex Court in the case of CIT v. Vatika Township (P) Ltd. reported in (2015) 1 SCC 1 wherein the Court discussed the proviso to Section 113 of the Income Tax Act, 1961 and held that it was prospective and not retrospective. While deciding the case, the Constitution Bench laid down certain general principles which have been reproduced as under:
"28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit: law looks forward not backward. As was observed in Phillips v. Eyre [Phillips v. Eyre, (1870) LR 6 QB 1] , a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.
DISMISSED PAGE 3 OF 7 CJ DARCL LOGISTICS LIMITED VS THE NEW INDIA ASSURANCE COMPANY LIMITED
29. The obvious basis of the principle against retrospectivity is the principle of "fairness", which must be the basis of every legal rule as was observed in L'OfficeCherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. [L'OfficeCherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd., (1994) 1 AC 486 : (1994) 2 WLR 39 : (1994) 1 All ER 20 (HL)] Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later."
(emphasis in original)
6. Similarly, the Apex Court in Hitendra Vishnu Thakur vs State of Maharashtra reported in 1994 (4) SCC 602, the court has culled out the ambit and scope of an amending Act and its retrospective operation and has held the following:
"26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then DISMISSED PAGE 4 OF 7 CJ DARCL LOGISTICS LIMITED VS THE NEW INDIA ASSURANCE COMPANY LIMITED been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:
(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."
7. Taking into account the aforesaid discussion, we conclude that the Consumer Protection Act, 2019 is prospective in nature. Thus, the cases pending or adjudicated and rights/obligations created before the coming into effect of the Consumer Protection Act, 2019 will continue to be adjudicated under the Old Act. Hence, the Applicant cannot resort tothe provisions as inculcated in the DISMISSED PAGE 5 OF 7 CJ DARCL LOGISTICS LIMITED VS THE NEW INDIA ASSURANCE COMPANY LIMITED New Act so far as the present case is concerned as her case will be governed by the provisions of the Old Act.
8. So far as the provisions of the Consumer Protection Act, 1986 are concerned, it does not provide the power of review to the State Commissions. This position of law was settled in the case of Rajeev Hitendra Pathak and Ors. v. Achyut Kashinath Karekar and Anr. reported in (2011) 9 SCC 541 wherein the Apex Court held:
"36. On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
37. The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly.
38. In our considered opinion, the decision in Jyotsana's case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained.
DISMISSED PAGE 6 OF 7 CJ DARCL LOGISTICS LIMITED VS THE NEW INDIA ASSURANCE COMPANY LIMITED
39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review or recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law."
9. Having discussed the position of law in terms of the power of review with the State Commission, we hold that the proceedings in Consumer Case no.39 of 2011 will be governed by the Consumer Protection Act, 1986 and the order dated 07.03.2023 cannot be reviewed by this Commission. Consequently, RA- 10/2023 is dismissed as not maintainable.
10. File be consigned to the record room.
JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) (J.P. AGRAWAL) MEMBER (GENERA DISMISSED PAGE 7 OF 7