VOLUNTARY ORGANISATION IN INTEREST OF CONSUMER EDUCATION VOICE Vs. REGISTRAR TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION

JUDGEMENT

(1.) IT is the normal practice to record appreciation of the assistance rendered by the amicus curiae at the close of the order. In the present case, however, we make a departure. We record our appreciation of the able assistance rendered by Mr. Gopal Subramaniam, Senior Advocate which has benefited us in writing this order. This Commission is grateful to him for the deep study he made on the subject and presented all the points with clarity and with his usual lucid manner. We also record our appreciation of the assistance rendered by Mr. Dayan Krishnan, Ms. Sonia Sharma and Ms. Astha Tyagi who were appointed amicus curiae to assist Mr. Gopal Subramaniam. It was gracious of Gopal Subramaniam to say that but for the research made by the assisting Counsel he would not have been able to present his arguments.

(2.) WE suo motu issued notice in the matter of Authorised Representative being Revision Petition No. 1017/2002 and for that we recorded our order on 14.6.2002 which gives indication of the issues involved in the case, and we quote : 'Registrar of the National Consumer Disputes Redressal Commission has placed before me a letter dated 15th April, 2002, received from the Registrar of the Tamilnadu State Consumer Disputes Redressal Commission enclosing therewith a copy of the order dated 10th April, 2002 in Original Petition No. 104/2000 pending before the State Commission. The order is of as many as 81 pages and then there are Annexures running into 8 pages. The order covers many issues which have far -reaching consequences and in fact some of the issues, I do not find to be quite related to the decision of the complaint pending before the State Commission. A complaint was filed before the State Commission by the widow mother and two minor children of deceased K.N. Subramaniam. The complaint relates to medical negligence of Dr. Rangabashyam and the Apollo Hospital, Chennai. The complaint was filed through Shri N. Chandrasekaran as an authorized agent. He is the Secretary of Consumer Welfare Foundation Chennai. State Commission noticed that the complaint was signed only by the widow and Shri N. Chandrasekaran also signed the complaint as a Counsel for the complainant. A vakalat has also been filed in the name of Mr. S. Natarajan, Advocate and Mr. N. Chandrasekaran as Counsel for the complainant. It appears at a later stage on 14.2.2002, Mr. N. Chandrasekaran suo motu revoked the vakalat in favour of Mr. S. Natarajan. Mr. N. Chandrasekaran has also filed an authorization letter from the widow to represent her case before the State Commission. This authority was not signed by the widow as the guardian of her minor children. Mother of the deceased did not give any authority in favour of Mr. N. Chandrasekaran to represent her case. Deceased, Subramanian had breathed his last on 3.5.1998. The complaint was filed within a period of limitation and it came for admission before the State Commission on 14.2.2002, almost four years after the death of Subramanian. State Commission immediately raised a doubt as to whether it was legally permissible for an authorized agent like Mr. N. Chandrasekaran to have a right of audience before even the complaint was admitted. State Commission in order to answer this question, issued notices to various Bar Associations and Consumer Associations and also affixed a notice on the Notice Boards of the State Commission and District Forums based in Chennai. State Commission was of the view that Rule 4 Sub -clause (8) of the Tamil Nadu Consumer Protection Rules, 1988 could not at all have any legal effect and the said sub -rule must have to be struck down as null and void or must have to be read down in conformity with the statutory provisions of the Consumer Protection Act, 1986. According to the State Commission, the Act itself did not contain any statutory provisions at all empowering the parties to engage an authorized representative on their behalf to represent their case. In this view of the matter the State Commission felt that such an authorized representative of the litigant complainant -consumer not being an Advocate could not at all be given the right of audience though there was no prohibition for the party himself to represent his own case under the Act. After quite marathon discussion expressing its views on some of the questions which we will consider at a later stage, the State Commission did not permit Mr. N. Chandrasekaran the right of audience and proceeded to state as under : There is no bar for the complainant to protect her hues of views as respects existence of prima facie materials in the complaint for admission. No purpose will be served by her being asked to argue on her behalf when especially when we on perusal of the averments in the complaint and other documents filed along with it came to the conclusion that there are prima facie materials available in the complaint for admission and, therefore, we admit the complaint and direct the Registry to issue notice to the parties returnable by 28.5.2002. To this extent, we would not like to interfere with the order of the State Commission. However, we do not know the fate of the complaint as of today. During the course of discussion, State Commission referred to the provisions of the Constitution of India, Advocates Act, 1961, Consumer Protection Act, 1986 and the rules framed thereunder by the Central Government and the Tamil Nadu State Government, Civil Procedure Code and the Civil Rules of Practices of Madras High Court, Criminal Procedure Code and various judgments of the High Courts and the Supreme Court. Thereafter, the State Commission has observed as under : Thus it is crystal clear that the provisions adumbrated under the Act, 1986 enables a voluntary consumer organization, registered under the Companies Act, 1956 or under any other law for the time being in force to present a complaint for and on behalf of the aggrieved complainant/consumer in the absence of himself virtually figuring and filing a complaint as a complainant. Authorised agent appear for and on behalf of the complainant or the opposite party in their absence before the Forum on the hearing dates. The authorized agent either for the complainant or for the opposite party is not at all empowered to make a representation or and on behalf of other party he is appearing for. His appearance before the hearing date is actually to dispense with the presence of the complainant or the opposite party on the date of hearing and nothing further. As such, the statutory provisions adumbrated under the Act, 1986 does not give the right of audience either to the voluntary organizations registered under the provisions of the Companies Act, 1956 or any other law for the time being in force or in favour of the authorised agents either for the complainant or for the opposite party. It appears that the salient provisions in the Act, 1986 had been adumbrated in rather a bid to avoid an order being passed, dismissing the complaint of the default of the complainant or an order being passed ex parte on merits or for the avoidance of the technical objection of locus standi that may emerge for the complaint to be filed by such associations instead of by the aggrieved party/complainant/consumer and nothing further. This has raised a substantial issue of law which, as stated earlier, have far -reaching effect. It does appear, prima facie, the State Commission has acted in exercise of its jurisdiction illegally and/or with material irregularity. We would, therefore, in exercise of our jurisdiction under Clause (b) of Section 21 of the Consumer Protection Act, 1986 call for the records of the State Commission limited to the aforesaid questions while, at the same time, allowing the complaint pending before the State Commission to proceed as per the directions issued by the State Commission. In paras 60 to 64, State Commission has referred to certain observations pertaining to functioning of Voluntary Organizations in the State of Tamilnadu which we find are not relevant to the issue pending before the State Commission. These observations, therefore, as far as the complaint before the State Commission is concerned, are not relevant and we do not think these should have formed part of the order. Accordingly, let notice issue to the following : (1) Consumer Welfare Foundation, Through Shri N. Chandrasekaran, Secretary, Consumer Welfare Foundation,Chennai. (2) The Chairman, Apollo Hospital, Greams Road, Chennai -600 006. (3) Dr. N. Rangabashyam, Ramana Surgical Clinic, 38, Venkatnarayana Road, T. Nagar, Chennai -17. (4) Common Cause, Through its Director, Common Cause House, 5, Institutional Area, Nelson Mandela Road, Vasant Kunj, New Delhi -110 070. (5) Consumer Co -ordination Council, 52, Qutab View Apartments, Shaheed Jit Singh Marg, New Delhi. (6) Consumer Education and Research Centre, Though Prof. Manubhai Shah, Managing Trustee, Suraksha Sanskool, Thaltej, Sarkhej Gandhinagar, Highway, Ahmedabad -38 -054, Gujarat. (7) Consumer Protection Cell, Through Shri B. Vaidyanathan, C -66, Sector -2, Rourkela, Sundergarh -769 006. (8) Dr. Sriram Khanna, VOICE, 108, Golf Lines, New Delhi -3. (9) Federation of Consumer Organisations Tamil Nadu (FEDCOT), 32 -A, 1st Floor, Daniel Thomas Nagar, Thanjavur, Thanjavur -613 007. (10) Mumbai Grahak Panchayat, Grahak Bhavan, Sant Dyaneshwar Road, Behind Cooper Hospital, Ville Parle (West), Mumbai -400 056. In view of the importance of the issue we would request Shri Gopal Subramaniam, Senior Advocate, B -5/7, Safdarjung Enclave, Africa Avenue, New Delhi to assist us in the matter. We would request at the same time Shri Dayan Krishnan, Advocate, S -69, Panchsheel Park, New Delhi to assist Mr. Gopal Subramaniam, Advocate. At the same time we appoint Ms. Astha Tyagi and Ms. Sonia Sharma, Advocate, 12/19, (L.G.F.), West Patel Nagar, New Delhi -110 008 to do the research and for rendering assistance to Shri Gopal Subramaniam. They shall be paid Rs. 2,500/ - each from the Legal Aid to meet their out of pocket expenses. A copy of the order shall be sent along with the notice.'

(3.) MR . Subramaniam submitted that if we consider various pronouncement of the Supreme Court and of the High Courts on Order III of Code of Civil Procedure it could be that under the general prevailing law no authorized agent could claim to possess a right of audience in the Court of Law unless specific permission of the Court was obtained and that the word appear in Order III does not include right of audience before a Court. But then the objects of the Act and various pronouncements of the Supreme Court rather go to show that authorized representative can certainly have a right of audience and his right is not merely confined to appearance before a Consumer Forum. Mr. Subramaniam referred the Division Bench judgment of the Bombay High Court in the case of Sanjay R. Kothari (supra), and he said that it laid a correct law. He quoted the concluding para of the judgment which is as under : 'We, thus conclude that a party to the proceeding before the District Forum/State Commission has right to authorise a person of his choice to represent him and appearance of such agent authorised by the party on the date of hearing before District Forum/State Commission is not restricted to physical appearance but includes in terms of Rule 4(7), 4(8) or 9(6) of Rules of 2000 to examine and cross -examine the witness, address the Court and take part in the proceedings as the case may be. Any other view may defeat the very objectives for which Act of 1986 was enacted...' This judgment of the Bombay High Court was also quoted in extenso to show that the impugned order of the Tamil Nadu State Commission was not correct. The impugned judgment of the learned State Commission was also noticed in the judgment of the Bombay High Court. Some of the observations in the judgment of the Bombay High Court we quote : 'The right to appear, therefore includes right of addressing the Court, examining, cross -examining witnesses, oral submissions etc. If we accept the submission of Mr. Singhvi that to appear mean only physical presence before the Consumer Forum for the purposes of filing complaint, appeal, or reply on behalf of the party, it would create a very strange situation before the Consumer Forum/State Commission. If an authorised agent alone appears on the date/dates of hearing, neither the hearing will proceed further nor the Consumer Forum will be able to either dismiss the complaint for default or decide it on merit or decide it ex parte. Consider situation like this : Section 12 of the Act of 1986 permits the aggrieved consumer to file complaint through recognised consumer association. In the complaint, consumer association appears through its office bearer as its recognised agent. Does the law i.e. Act of 1986 and Rules of 2000 compel such complainant -association who is espousing the cause of consumer, engagement of legal practitioner to address the Consumer Forum. Answer is simple no. Once the complaint is filed by aggrieved consumer through recognized consumer association, the authorised agent appearing for such recognised consumer association is expected to take the complaint to logical conclusion by full participation in the complaint proceedings which may include addressing the Forum, examining and cross -examining the witnesses etc. Observation of principles of natural justice alone is sufficient in rendering justice to consumers. ................................... In view of this, we have no hesitation in giving wider and comprehensive meaning to the expression to appear appearing in Rules 4(7) and 8(7) of the Rules of 2000 to include addressing the Court, examining and cross -examining witnesses etc. We are of the considered view in the light of statutory provisions like Section 2(1)(b)(ii) and Section 12 of the Act of 1986 and Rules 4(7) and 8(7) of Rules of 2000 that right of audience inheres in favour of authorised agents of the parties to the proceedings before District Consumer Forum and State Commission and such right is not inconsistent or in conflict with the provisions of Advocates Act.' ....................................... 25. It is now well -settled position of law that the right conferred on Advocates under the provisions of the Advocates Act is a statutory right and not a fundamental right guaranteed under the Constitution. A person who is not an Advocate cannot practise law. Any person other than party to the proceedings or Advocate cannot claim right of audience before the Court, Tribunal or Authority until it is provided by law or such person is specifically permitted by such Court, Tribunal or Authority. This is in sum and substance is the scheme of Sections 29, 32 and 33 of the Advocates Act, 1961 and Section 14 of Bar Councils Act, 1926 which is still operating as Chapter IV of Advocates Act, 1961 has not fully come in operation and Section 14 of Bar Councils Act, 1986 cannot be said to have been repealed. ....................................... 29. It goes without saying that if authorised agent appearing for the party to the proceedings misbehaves or does not behave in sober fashion or exhibits violent behaviour or does not maintain the decency and decorum of the District Forum or State Commission or interferes with the smooth progress of the case or like reason, it is always open to such District Forum or State Commission to pass an appropriate order refusing such authorised agent the audience in a given case.'