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State Consumer Disputes Redressal Commission

Brij Mohan vs Suneha Printing Press on 26 August, 2022

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
         PUNJAB, CHANDIGARH.

                         Review Application No.10 of 2022
                                   In
                         First Appeal No.568 of 2022

                               Date of institution : 12.08.2022
                               Reserved On         : 17.08.2022
                               Date of decision : 26.08.2022

Brij Mohan S/o Late Sh. Kewal Ram, R/o H.No.108-B, Type IV, RCF
Township, Kapurthala.

                                                  ....Applicant/Appellant
                                   Versus

1.     M/s Suneha Printing Press, through Sh. Baldev Singh, opposite
       Main Gate, Rail Coach Factory, Hussainpur (Kapurthala),
       Punjab.

2.     M/s Suneha Printing Press through Sh. Bhajan Singh, opposite
       Main Gate, Rail Coach Factory, Hussainpur (Kapurthala),
       Punjab.
                                    ....Respondents/Opposite Parties
                         Review Application under Section 50 of the
                         Consumer Protection Act, 2019 and the
                         Rules framed thereunder against the order
                         dated    15.06.2022   passed    by     this
                         Commission in First Appeal No.568 of 2019.
Quorum:-
       Hon'ble Mrs. Justice Daya Chaudhary, President
               Mrs. Urvashi Agnihotri, Member.

1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No

2) To be referred to the Reporters or not? Yes/No

3) Whether judgment should be reported in the Digest? Yes/No Present:-

For the applicant : Sh. Brij Mohan, In Person.

JUSTICE DAYA CHAUDHARY, PRESIDENT The applicant/appellant being aggrieved by the order dated 15.06.2022 passed by this Commission in First Appeal No.568 of 2019 has filed the present Review Application under Section 50 of the Consumer Protection Act, 2019 (hereinafter to be referred as "The Act of 2019") and the Rules framed thereunder by raising certain grounds.

2. Said appeal was partly allowed vide order dated 15.06.2022 and the order dated 26.07.2019 passed by the District Commission, Kapurthala was modified by directing the respondents/opposite parties to refund an amount of ₹2,000/- paid as advance along with interest @ 9% per annum instead of 12% w.e.f. 17.12.2016 till its realization in view of ratio of the judgment of the Hon'ble Supreme Court in case National Insurance Company Ltd. v. M/s Hareshwar Enterprises (P) Ltd. & Ors. Civil Appeal No.7033 of 2009 decided on 18.08.2021. However, the compensation was enhanced from ₹10,000/- to ₹13,000/-. An amount of ₹2,000/- was awarded towards litigation expenses for the purpose of typing etc. as the applicant had appeared personally to argue the case and did not engage any counsel.

3. The Review Application has been filed on the ground that the compensation increased is on the lower side and the amount of ₹2,000/- towards litigation expenses has been stated to be meagre as the applicant/appellant had to travel from Kapurthala to Chandigarh Review Application No.10 of 2022 3 and vice-versa and travelled by his own car to attend his case whereas even as per AC bus fare, the amount should have been ₹12,000/- approximately. It has also been submitted by the applicant that the documents filed by him have not been taken into consideration while passing the order. By stating to be a case of error apparent, the applicant has prayed that the order passed by this Commission is required to be modified/reviewed.

4. In addition to that it has also been submitted by the applicant that this case should not have been heard by the Bench where Mr. Rajinder Kumar Goyal was the Member. At the end of the application, it has also been mentioned that the applicant is not interested to take even a single penny from the enhanced amount of compensation/costs of the case including litigation expenses and the entire amount would be deposited in the Free Legal Aid Account.

5. We have heard very patiently and carefully the arguments raised by the applicant/appellant while appearing in person at the admission stage of the application.

6. The Review Application has been filed under Section 50 of the Act of 2019 for modification/review of the order dated 15.06.2022 passed by this Commission in First Appeal No.568 of 2019.

7. The question for determination is as to whether the present Review Application filed in the year 2022 under the amended Act of 2019 for review of the order dated 15.06.2022 passed by this Commission in First Appeal No.568 of 2019 to challenge the order Review Application No.10 of 2022 4 dated 26.07.2019 passed by the District Commission in the complaint filed under the un-amended Act of 1986 is maintainable or not?

8. On perusal of the application, it is apparent that that the applicant/appellant has filed the application under Section 50 of the amended Act of 2019 and that too when the entire proceedings have taken place under the old Act of 1986. Before saying anything on the merits of the present application, it is to be seen/considered as to whether the Review Application is maintainable under the new Act of 2019 when the complaint was filed under the provisions of the old Act of 1986.

9. Admittedly, the Consumer Complaint was filed by the complainant before the District Commission on 09.01.2019 under the old Act i.e. the Act of 1986 and the said complaint was decided by the District Commission on 26.07.2019 under the provisions of the old Act of 1986 itself. However, the present Review Application has been filed under Section 50 of the Act of 2019. At the very outset, a query was put to the applicant as to how the order passed by this Commission in the appeal filed under the provisions of the old Act of 1986 can be reviewed in view of the provisions of new Act of 2019 when the appeal was filed under the old Act of 1986. Instead of answering the query, the applicant submitted that everything has been mentioned in the grounds of the Review Application and the same can be filed under the provisions of the new Act. In-spite of repeated queries raised in this regard no answer was given by the applicant. Even a specific question Review Application No.10 of 2022 5 was raised at the time of hearing that why such objection was not raised regarding hearing of the appeal by the Bench where Mr. Rajinder Kumar Goyal was the Member. The case was argued at length but no such objection was raised. Orally he has stated that he has a right to raise the objection at any point of time.

10. It is relevant to mention that under the old Act i.e. the Act of 1986, there was no provision of filing of review. It appears that intentionally the Review Application has been filed under the new Act i.e. the Act of 2019 just to make it a ground whereas the same is not maintainable. However, otherwise also no error/mistake has been pointed out except the ground of enhancement of compensation. Moreover, the Review Application is not maintainable for enhancement of compensation and litigation expenses. The review is not a remedy to claim enhanced amount of compensation/costs. In case the applicant is aggrieved by the order passed by this Commission, he could have filed the appeal before the Hon'ble National Commission but no such appeal has been filed.

11. The review is also not re-hearing of the original case and the power of review cannot be confused with the appellate power which enables a superior Court to correct all errors committed by the subordinate Court. The scope of the power of review is very limited and that too under the amended Act (The Act of 2019) but not under the old Act (The Act of 1986) and the same is to be confined strictly and only to the errors which are apparent on the face of the record. Review Application No.10 of 2022 6

12. The applicant has made all efforts to convince this Commission that he has a right to file the Review Application under the amended Act as the Review Application has been filed in the year 2022 whereas the Review Application has arisen out of the complaint filed under the old Act of 1986.

13. The repeal of a law is not to affect the previous operation of any enactment i.e. the proceedings under the Act of 1986 but to continue for cases which were filed prior to the implementation of Act of 2019 on 20.07.2020. The same is evident from the repeal and saving section (Section 107) of the Consumer Protection Act, 2019 which has been reproduced as under:

"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."

14. We may also take the assistance of Section 6 (b) of the General Clauses Act, 1897 to further clarify 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 anything duly done or suffered thereunder."

15. Moreover, unless the legislature explicitly provides that the amendment is retrospective in nature, it will be considered as 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 Apex Court has discussed the proviso to Section 113 of the Income Tax Act, 1961 and has 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.

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. YamashitaShinnihon 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) Review Application No.10 of 2022 8

16. Similarly, the Apex Court in Hitendra Vishnu Thakur v State of Maharashtra reported in 1994 (4) SCC 602, 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 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."

8. 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 i.e. Consumer Protection Act, 1986. Hence, the Opposite party cannot resort to the provisions as inculcated in the new act so far as the present case is concerned as their case will be governed by the provisions of the old act since it was already adjudicated on 24.02.2020 i.e. before the coming into effect of the new act."

17. By considering the above discussion in reference to the provisions of the old Act of 1986 and new Act of 2019, it can safely be said that the Act of 2019 is prospective in nature. The cases pending and adjudicated and the rights/obligations created before coming into effect of the Act of 2019 were to be adjudicated under the old Act of 1986. The applicant cannot resort to the provisions as inculcated in the new Act so far as the present case is concerned as the present case is governed by the provisions of the old Act of 1986 as it has already been adjudicated on 26.07.2019 by the District Commission much earlier before coming into effect of the new Act of 2019.

18. As per the provisions of the old Act of 1986, nowhere the power of review to the State Commission has been provided. This issue was settled by the Hon'ble Supreme Court in the case titled as Rajeev Hitendra Pathak and Ors. v. Achyut Kashinath Karekar and Anr. reported in (2011) 9 SCC 541 wherein the Apex Court has held as under:

"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.

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."

19. In view of the detailed discussion and the law position as discussed above, we are of the view that the present Review Application is not maintainable as the complaint was filed before the District Commission under the un-amended Act of 1986 and the Review Application has been filed in the year 2022 under the amended Act of 2019.

20. Even on merits, the applicant has no case to review the order dated 15.06.2022 passed by this Commission as only the flimsy grounds have been raised in the application. It amounts to abuse of the process of law as the applicant is playing hide and seek with the Commission as even under the new Act of 2019, the Review Application for enhancement of the amount of compensation/costs cannot be entertained. The Review Application is not only contrary to the provisions of the new Act but also unnecessary and irrelevant arguments have been raised therein and as such the same is not maintainable. The Review Application deserves to be dismissed with Review Application No.10 of 2022 11 costs but we are not imposing any costs as the applicant is appearing in person.

21. Accordingly, the Review Application is dismissed in limine being not maintainable.

22. Since the main Review Application has been disposed of, so all the pending Miscellaneous Applications, if any, are accordingly disposed of.

(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER August 26, 2022.

(Gurmeet S)