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Dr. D.J. De Souza v/s Cadila Health Care Ltd.

    RP. No. 28 of 2013
    Decided On, 25 February 2014
    At, Goa State Consumer Disputes Redressal Commission Panaji
    By, MEMBER
    For the Petitioner: In person. For the Respondent: S.V. Kamat, Advocate.

Judgment Text
N.A. Britto, President:

1. The Petitioner herein is the original Complainant in C.C. No.28/2001.

2. The short question for our consideration is whether the Complainant is entitled to the sum deposited in terms of the 2nd Proviso to Section 15 of the Consumer Protection Act, 1986 in addition to the decreetal amount/ or the amount due as per the final order?

3. Some facts are required to be stated to answer the said question.

4. The Petitioner as Complainant had filed a complaint for refund of a sum of Rs.47,196/- being the cost of defective microscope purchased from the respondent/OP with interest @ 18% and Rs.5,000/- as compensation.

5. The complaint was decreed by an order dated 02/06/2003 and what was prayed for was granted to the Complainant.

6. The respondent/OP preferred an appeal against the said order of the Lr. District Forum dated 02/06/2003, being FA No.40/2003 and at the time of filing of the said appeal, the respondent/OP deposited a sum of Rs.25,000/- on 21/07/2003 but the said first appeal came to be dismissed by order dated 06/05/2004 and the respondent/OP, being aggrieved by the said order of dismissal of their appeal, filed a RP No.1739/2004 before the National Commission at New Delhi. In terms of interim order dated 31/03/2006 passed by the Hon’ble National Commission in the said revision a sum of Rs.29,056/- (i.e. Rs.25,000 plus Rs.4,056/- of interest) was paid to the Complainant on 22/07/2006.

7. Subsequently, the award of interest @ 18% came to be reduced to 12% by order of the National Commission dated 12/02/2009.

8. The 2nd Proviso to Section 15 of Consumer Protection Act, 1986 reads as follows:

'Provided further that no appeal by a person who is required to pay an amount in terms of an order of the District Forum shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner 50% of that amount or Rs.25,000/- whichever is less.'

9. The Complainant does not dispute that the Complainant has obtained from this Commission the said sum of Rs.25,000/- plus accrued interest of Rs. 4,056/- on or about 22/07/2006 but it is his submission that the Complainant is entitled to the said sum by way of punitive damages, the respondent/OP having failed in the first appeal filed by them before this Commission bearing no.40/2003.

10. On the other hand, Shri Kamat, the lr. advocate of the respondent/OP would submit that if at all the Complainant was allowed to withdraw the said sum of Rs.25,000/- plus Rs.4,056/- he was allowed to do the same as part of the decreetal amount payable to him. Lr. advocate would submit that the contention of the Complainant that the amount deposited under Section 15 of the Act is towards punitive damages is totally flawed. Shri Kamat would submit that the powers of the District Forum to grant relief to Complainant are enumerated in Section 14 of the Act and that there is nothing in the order dated 5/06/2004 of this Commission or in the interim order dated 31/03/2006 of the National Commission or in the final order dated 12/02/2009 that any additional amount is liable to be paid to the Complainant, beyond the amount ordered to be paid by the District Forum. Shri Kamat would further submit that the deposit in terms of 2nd Proviso to Section 15 of the Act, is required to be made only to protect the interest of the consumers in the appeals filed against the decisions of the District Forum, the intention behind the said Proviso being to restrict the filing of frivolous appeals. Shri Kamat submits that there is no provision in the Act which says that the amount deposited at the time of filing of the appeal is to be paid to the Complainant in addition to whatever has been ordered to be paid under Section 14 of the Act. Shri Kamat has placed reliance on U. Jawahar Lal vs. Union of India and Ors, judgment dated 9/08/2006 of the Andhra Pradesh High Court and to a comment on V. Y. Rao’s Commentary, at page 649.

11. We are unimpressed with the submissions made by the Complainant.

12. The amount deposited in terms of the 2nd Proviso to Section 15 of the Consumer Protection Act, 1986, on the conclusion of the appeal, has got to be paid either to the Appellant if he succeeds or to the respondent in case the appeal is dismissed, but under no circumstances the said amount can be considered to be an additional payment, in addition to the decreetal amount, to be paid to the unsuccessful party in the appeal. The Division Bench of the Andhra Pradesh High Court in U. Jawahar Lal (Supra) was dealing with a prayer to strike down the 2nd Proviso of Section 15 of the Consumer Protection Act, 1986, inserted by Act 62 of 2002 and in declining the prayer sought the Division Bench observed that if the 2nd Proviso to Section 15 is read in the light of the objects of the 1986 Act, they did not find anything unreasonable in the prescription of the deposit of 50% of the amount in terms of the order passed by the District Forum or a sum of Rs.25,000/- whichever is less. The object of this Proviso is to protect the interest of the consumer in the appeals filed against the decision of the District Forum. Therefore, insistence of deposit of specified sum cannot be treated as unreasonable or arbitrary.

13. In the Commentary, referred to herein above, it is stated as follows:

'By Amendment Act of 2002, a condition is imposed for entertaining appeal against the order of District Forum directing the appellant to pay any amount. There was no such requirement earlier. Now, according to the proviso, the appellant who was ordered to pay any amount by the District Forum has to deposit half of the amount so ordered or Rs.25,000/- whichever is less. This seems to have been inserted with a

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view to discourage frivolous appeals. ' 14. In our view, the sum of Rs.25,000/- deposited by the appellant at the time of filing of the appeal, in terms of the 2nd Proviso to Section 15 of the Consumer Protection Act, 1986 can be refunded to the appellant but if refunded to the respondent in the appeal that can only be as a part of the amount due under the decree/ final order. It cannot be as a bonus or punity damages or whatever to be paid by the unsuccessful party to the appeal in addition to the amount due on the decree/ final order. 15. With the above observations we proceed to dismiss this revision petition.