At, National Consumer Disputes Redressal Commission NCDRC
By, THE HONOURABLE MR. PREM NARAIN
By, PRESIDING MEMBER
For the Petitioner: Maibam N. Singh, Advocate. For the Respondents: R1 & R2, Ex parte, R3, Girijesh Pandey, Bharat Swaroop Sharma, R4, Pramod K. Singh, Advocates.
This revision petition has been filed by the petitioner against the order dated 29.6.2013 passed by the State Consumer Disputes Redressal Commission, Assam (for short, ‘State Commission’) in First Appeal No. 07/2009.
2. Brief facts of the case are that on 25.9.1999 the petitioner took one domestic gas connection vide consumer No. 10830, Card No. H/17525-65/17528 from respondent No. 1 the authorized distributor of Indian Oil Corporation/Respondent No. 3 herein. On 6.12.1999 in the evening the house of the petitioner was burnt to ashes due to blasting of defective cylinder of LPG and the petitioner also sustained injuries and had been under treatment for a long time. The petitioner immediately informed the fire brigade and on receiving the information, the fire service reached the spot and extinguished the fire. The petitioner lodged an FIR before the Dispur Police Station, which was registered as G.P.E. No. 546 dated 8.12.1999. In 2001 the petitioner filed a complaint before the District Forum, Kamrup, Guwahati being complaint case No. 63/2001. The petitioner accordingly prayed compensation of Rs. 3,45,000 for loss of property caused due to the fire caused by blasting of cylinder. Except for Respondent No. 2, all other respondents on receiving the notice appeared and filed their written statement denying all the allegations made by the petitioner. On 4.11.2008 the District Forum after hearing the submissions of the parties, came to the conclusion that there was no cogent or sufficient evidence on record to show that LPG cylinder was a defective one and also that the alleged manufacturing defect in it could not be established by the complainant. Accordingly the complaint was dismissed. Aggrieved by the order dated 4.11.2008 passed by the District Forum, Kamrup, the petitioner preferred First Appeal No. 07/2009 before the State Commission. The State Commission vide order dated 15.5.2010 dismissed the application for condonation of delay and accordingly dismissed the appeal filed by the petitioner and confirmed the order passed by the District Forum. The petitioner preferred a revision petition before this Commission being Revision Petition No. 2395 of 2010. Vide order dated 19.4.2011 this Commission allowed the revision petition filed by the petitioner and remanded the matter to the State Commission. The State Commission after hearing the submissions of the parties dismissed the appeal filed by the petitioner and confirmed the order passed by the District Forum.
3. Hence, the present revision petition.
4. Heard the learned Counsel for the parties and perused the record. Respondent Nos. 1 and 2 were proceeded ex parte. Respondent No. 2 was proceeded ex parte vide order dated 2.5.2016 of this Commission as the notice returned with postal remarks “refused”. Similarly respondent No. 1 was proceeded ex parte vide order dated 29.11.2016 as respondent No. 1 did not appear despite service of notice.
5. Learned Counsel for the petitioner stated that the arguments of the parties were heard by the Presiding Member and the other Member of the State Commission, whereas at the time of passing the judgment only one member signed the order and the Presiding Member has not signed the order which is apparent from the order itself. It is further clear from the note/endorsement written on the top left side of the first page of the order that “When the dictation of the judgment is transcribed Mr. M.K. Barooah, Hon’ble Member is not available as his term already expired. However, the judgment is signed by other Member. This note is prepared as per direction of the Hon’ble President. Sd/- 12.2.2015”. The State Commission ought to have fixed the matter for re-hearing as the Hon’ble Presiding Member had not signed the order.
6. On the other hand, learned Counsel for respondent No. 3 and respondent No. 4 stated that as per Sub-rule (5) of Rule 7 of the Assam State Consumer Rules, 1989, it has been prescribed as under:
“(5) No Act or proceeding of the State Commission shall be invalid by reason only of the existence of any vacancy among its Member or any defect in its Constitution thereof.”
7. Learned Counsel further argued that similarly Section 29A of the Consumer Protection Act, 1986 also provided for similar contingencies and there also it is clearly stated that :
“29A. Vacancies or defects in appointment not to invalidate orders—No act or proceeding of the District Forum, the State Commission or the National Commission shall be invalid by reason only of the existence of any vacancy amongst its member or any defect in the constitution thereof.”
8. From the above it is clear that if the Member had demitted the office, he cannot obviously sign the proceedings but his absence will not make order invalid in the light of these two provisions. Thus, there is no illegality in the order passed by the State Commission and the same may be upheld.
9. I have carefully considered the arguments advanced by the learned Counsel for the parties and have examined the material on record.
10. A proceeding is fully complete if signed by all the Members who have heard the arguments. The intent of Section 29A of the C.P. Act, 1986 does not seem to cover such situation as in the present case two Members heard the proceedings but only one of them signed the proceedings. The proceedings of the Commission will not be invalid if there is any vacancy of a Member or if any Member has taken part in the proceeding and has singed also but later on some defect is found in his appointment. Similarly, Sub-rule (5) of Rule 7 of the Assam State Consumer Protection Regulation, 1989 also does not cover the present case. The practice obtaining in various Commissions is that if one Member is not available or has demitted office then the matter has to be re-heard by another Bench consisting of one of the earlier Member or some other new Members. As the President of the State Commission has power to constitute the Bench, even a new Bench may have been constituted consisting of only one Member who had earlier heard the case. But if the case was heard by two Members, both the members were required to sign the judgment and care should have been taken by both the Members who had heard the case to sign and pronounce the judgment before one of the Members demits office. It is also surprising to note that the order of the State Commission is dated 29.6.2013, b
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ut the endorsement as per order of the President of the District Forum is dated 12.2.2015. Thus this endorsement does not add any legal value to the judgment of the State Commission. Thus I am of the view that the order dated 29.6.2013 passed by the State Commission which has been signed by only one Member is not tenable in the eyes of law. 11. Based on the above discussion, R.P. No. 957 of 2015 is allowed and the order dated 29.6.2013 passed by the State Commission is set aside and the matter is remanded to the President of the State Commission to constitute a Bench to hear and decide this matter. 12. Parties to appear before the State Commission on 13.8.2018. Ordered accordingly.