Examining The Power Of The Consumer Commissions To Issue A Commission For Expert Opinion

As per Section 38(9)(e) of the Consumer Protection, 2019, corresponding to Section 13(4)(v) of the erstwhile Act of 1986, a District Commission has the same power vested in a Civil Court, under the Civil Procedure Code, 1908, for issuance of a Commission. This provision specifically deals with the power to issue a commission for examination of any witness or any document. The Act however, is silent on whether a District Commission has the competency to issue a commission for local inspection or scientific investigation. This issue came before various High Courts for consideration, which have thereof, pronounced varied and contrary rulings on this lacuna.

Before addressing this issue in detail, it becomes important to delve into the significance of expert opinion in consumer disputes, especially when the alleged defect cannot be determined without proper analysis or inspection through naked eye. It is pertinent to note that, expert evidence is of two types!¹i.e., opinions sought by a Consumer Forum, under Section 38(2)(c) and opinions filed by the Parties, as a part of their respective evidence. Section 38(2)(c) provides that, a District Commission, may at its discretion seek analysis and testing of the alleged defective goods, by sending them to an appropriate laboratory, recognised by the Central or State Government.

It cannot be denied that parties are at liberty to lead expert evidence, by way of Affidavit. However, the issue is, whether a Consumer Commission is competent to appoint a Court Commissioner, for the purpose of adjudication of a product liability claim. This Article seeks to address this conundrum, by studying two contrary High Court Judgments.

Judgments pronounced by the High Court of Andhra Pradesh

In this regard, consider the case of Yogendra Builders & Anr. v. Vidya Paradise Owners’ Welfare Association & And, where the Single Judge of the High Court of Andhra Pradesh noted that the Consumer Commissions lack the authority to issue a commission for any purpose other than what is provided under Section 13(4)(v) of the Consumer Protection, 1986. However, it was also acknowledged that if the consumer forums find it necessary to appoint an expert, specialist, skilled person, or any other person of a similar nature, they may do so for the purpose of appropriate adjudication.

The Division Bench of the High Court, in the case of Sivashakthi Builders, Hyderabad v. A.P State Consumer Disputes Redressal Commission, took a different view than to the Single Judge Bench. It was observed that the Consumer Forums have no competency, under any circumstance, to issue a commission for local inspection, since, the intention of the legislature was to limit the powers of the Consumer Forums to issuance of commission, for examining a witness only.

Thus, the appellate authority has partially upheld the findings of the single Judge in Yogendra Builders & Anr (Supra). The additional observations, which suggest that Consumer Forums may, at their discretion, issue a commission for any purpose other than that provided under Section 13(4)(v), have not been accepted. Consequently, the Judgment in the case of M/s. Shivshakti Builders is deemed binding on the Single Judge Bench Ruling.

In a recent development, the Kerala High Court, in the case of P and N Ceramics & Ors. v. Issac Sebastian, declined to accept the “strict interpretation” of the Division Bench (Andhra Pradesh High Court). The court observed that, despite the absence of a specific provision under the Act for appointing a Commission for local inspection, a Consumer Commission is not precluded from exercising that incidental power. This decision aligns with the Act’s objective of providing a summary mechanism for the timely disposal of matters.

The Court has made the above observations in light of the fact that the litigants would have no other alternative, but to approach Civil Courts. The Court failed to consider the alternatives available to parties to depose expert evidence, which would infact, reduce the otherwise long time taken to summon an expert, examine him, and allow for objections and cross-examination, if any.

Judgments pronounced by the High Court of Madras

In this regard, two Madras High Court Judgments, passed by the same judge, Justice S. Subramani may be referred to. In the case of Malaravan & Anr. Vs. K. Reghupathy & Anr, an application by the Opposite Party to order for production of documents in the possession of the Complainant, was allowed and was observed that, even if the Civil Procedure Code would not apply, the natural justice principles would apply in taking evidence and also to give an opportunity to the parties to adduce additional evidence. Further, In the case of M/s. Ramaniyam Real Estates Ltd. Vs. Triveni Apartments Owners Welfare Association, while referring to the ruling in Malaravan & Anr (Supra), it was observed that, since the Consumer Forums have all the trappings of the Civil Court and the proceedings are legal proceedings, hence, they have the power to issue commission for local inspection.

It is pertinent to note that, the above observations that a District Consumer Redressal Commission having all the trappings of a Civil Court have been so made, without following the Supreme Court ruling in the case of New India Assurance Co. Ltd.Vs. R. Srinivasan, where it was observed that, the District Commission shall have the same powers as are vested in the civil courts only for the limited purpose as enumerated in under Clauses (a) to (f) of Section 38(9) of the Consumer Protection Act, 2019.

With varied conflicting pronouncements of different High Courts, there is ambiguity as to whether the consumer forums indeed have the competency to issue a commission for scientific investigation or local inspection, given the absence of a statutory provision. Further, in the absence of such a statutory provision, it is unclear whether such ancillary powers could be accorded, in the light of natural justice principles.

Consumer Commission Orders: Continuing ambiguity

Consumer commissions have either relied upon the Division Bench Judgment of the Andhra Pradesh High Court or that of the Madras High Court and have thereby evolved a procedure of their own. In this regard, the case of Shib Shankar Chatterjee & Ors. Vs. Bengal Ambuja Housing, may be referred to, whereby, the West Bengal State Consumer Dispute Redressal Commission, relying on the ruling of Madras High Court in Ramaniyam Real Estates Ltd (Supra), observed that since the Consumer Commissions have all trappings of a Civil Court and the proceedings are legal proceedings, they are at liberty to issue a commission for local inspection. Thus, even though the proceedings are summary in nature, a Consumer Commission is at liberty to evolve a procedure of its own for deciding a case, in the interest of justice.

In the case of M/s. VVL Sujatha Vs. M/s. Sai Priya Estates[9], the Andhra Pradesh State Consumer Commission, set aside the decision of the District Forum to appoint a Commissioner for local inspection, being bound by the Judgment in M/s. Shivshakti Builders (Supra). It was observed that, Consumer Forums do not have the power to issue a commission for local inspection, under any circumstance. However, the Commission reiterated that parties are at liberty to adduce expert evidence by other methods, such as by way of an Affidavit.

In the case of Bengal DCL Housing Development Co. Ltd. Vs. Sudip Kumar Mondal [10], State Commission, by relying on the Madras High Court Judgment in Ramaniyam Real Estates Ltd. (Supra) observed that, although the Consumer Protection does not include the power to appoint a commissioner for local inspection under Order 39 Rule 7 of the CPC, it does not preclude the Consumer Forum from appointing a Commissioner to resolve a factual dispute. Because the proceedings are inquisitorial in nature, the Consumer Commissions are not prohibited from appointing an impartial Commissioner to obtain facts regarding the dispute in question.

Conclusion

It is still unclear as to whether the Consumer Commissions have the competency to issue a commission for inspection. As evinced above, various Commissions have relied on either the Madras High Court Judgment or the Division Bench Judgement of the Andhra Pradesh High Court, to decide on the competency. It cannot be denied that these proceedings are inquisitorial in nature and the facts may require analysis from an expert in the field. At the same time, given that consumer forums derive power from statutes and given the glaring absence of a provision in this regard, the conundrum continues. In the meantime, Parties can continue to render expert opinions, on Affidavits without any opposition.

Amrit Raj v. Dhawan Surgicary Care and Multi Specialty Hospital, 2019 SCC OnLine NCDRC 711. ↑
2007 SCC OnLine A.P 739. ↑
2009 KHC 6391. ↑
2021 SCC OnLine Ker 3611. ↑
1997 SCC OnLine Mad 928. ↑
1998 SCC OnLine Mad 438. ↑
(2000) 3 SCC 242. ↑
R.C/83/2010.↑
R.P/44/2009. ↑
R.C/09/31. ↑