TMI Blog2011 (8) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... no.428 of 2000 of alleged deficiency in service was filed before the South Mumbai District Consumer Disputes Redressal Forum, Mumbai (for short, Consumer Forum) against the two tour operators. During the pendency of the complaint, applications were filed by the opposite parties contending that the authorized agent should not be granted permission to appear on behalf of the complainants as he was not enrolled as an Advocate. The Consumer Forum considered the applications and held that the authorized agent had no right to act and plead before the Consumer Forum as he was not enrolled as an advocate. 3. In complaint bearing no.167 of 1997 filed before the Consumer Forum, the majority expressed the view that the authorized agents have a right to file, act, appear, argue the complaint to its logical conclusion before the Consumer Agencies. The issue was taken to the State Consumer Disputes Redressal Commission (for short, State Commission) which stayed the hearing of the matters in which authorized agents were appearing and refused to grant stay where authorized agents were injuncted from appearing before the Consumer Forum. As a result, the proceedings in a large number of cases wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 framed under Act of 1986 permit authorized agents to appear for the parties and such appearance of authorized agents cannot be said to be inconsistent with section 33 of Advocates Act. 10. The Division Bench also dealt with the disciplinary aspect of the matter and held that if authorized agent appearing for the party to the proceedings misbehaves 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 then it is always open to such District Forum or State Commission to pass an appropriate order refusing such authorized agent the audience in a given case. 11. These appeals have been preferred before this court against the impugned judgment. 12. A two-judge Bench of this Court on 21.2.2007 referred these matters to a larger Bench in view of the importance of the matter. The order dated 21.2.2007 reads as under: The basic issue involved in these appeals is whether a person under the purported cover of being an agent can represent large number of persons before the forums created under the Consumer Protection Act, 1986 (In short the Act ) and the Rules ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consumer against unfair trade practices; (c) the right to be assured, wherever possible, access to an array of goods at competitive prices; (d) the right to be heard and to be assured that consumer interests will receive due consideration at appropriate forums; (e) the right to seek redressal against unfair trade practices or unscrupulous exploitation of consumers; and (f) right to consumer education. 3. These objects are sought to be promoted and protected by the Consumer Protection Council to be established at the Central and State level. 4. To provide speedy and simple redressal to consumer disputes, a quasi-judicial machinery is sought to be set-up at the district, State and Central levels. These quasi-judicial bodies will observe the principles of natural justice and have been empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of the orders given by the quasi-judicial bodies have also been provided. 15. Mr. Santosh Paul, learned counsel appearing for the appellants argued these appeals and also submitted the written submissions. He submitted that ordinarily right t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an advocate by his peers. Sections 35, 36 and 37 lay down the procedure for trying complaints, punishment and an appeal to the Bar Council of India from the orders passed by the State Bar Councils. As an additional remedy section 38 provides a further appeal to the Supreme Court. Though the Act relates to the legal practitioners, in its pith and substance it is an enactment which concerns itself with the qualifications, enrollment, right to practise and discipline of the advocates. As provided by the Act once a person is enrolled by any one of the State Bar Councils, he becomes entitled to practise in all courts including the Supreme Court. As aforesaid, the Act creates one common Bar, all its members being of one class, namely, advocates. Since all those who have been enrolled have a right to practise in the Supreme Court and the High Courts, the Act is a piece of legislation which deals with persons entitled to practise before the Supreme Court and the High Courts. Therefore the Act must be held to fall within entries 77 and 78 of List I. As the power of legislation relating to those entitled to practise in the Supreme Court and the High Courts is carved out from the general p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mer movement had primarily started in the West. We can trace history of the consumer movement from the judgment of the leading case Carlill v. Carbolic Smoke Ball Company 1893 (1) Q.B. 256. In this case first time Manufacturers liability for minimum quality standard for product was established. 24. For the first time in 1856 a select committee recommended that a cheap and easy remedy, by a summary charge before a magistrate, should be afforded to consumers who received adulterated or falsely described food. This suggestion was taken up in the Merchandise Marks Act, 1887. Section 17 of the Act provides as follows : That a person applying a trade description to a product was deemed to warrant that it was true, so that a false trade description constituted breach of both criminal and civil law. 25. In a leading English case Donoghue v. Stevenson (1932) A.C. 562, where the consumer claimed to have suffered injury as well as result of drinking from a bottle of ginger-beer containing a decomposed snail. Over a strong dissent the majority held that the manufacturer would be liable. The case did not herald strict liability but it facilitated more claims than were provided under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1960s social activism, consumer advocates insisted on citizens' rights to safe and reasonably priced goods and services and to the full disclosure of product information. The lawyer Ralph Nader gained fame for Unsafe at Any Speed (1965), which detailed safety hazards plaguing General Motors' (GM) Corvair automobile. Using $425,000 won in an invasion‐of‐privacy suit against GM in 1970, Nader founded numerous consumer groups, nicknamed Nader's Raiders, that pursued legal challenges to unsafe products and demanded greater government protection for consumers. The formation of the Consumer Federation of America (1968), the Occupational Safety and Health Administration (1970), and the Consumer Product Safety Commission (1972) attested to the movement's success but also to its regulatory and legalistic bent. Focused on consumers' rights, the modern movement downplayed the power of consumers to effect social change. 30. Ralph Nader played an extremely important role in consumer movement in the United States of America. A note appears in America in Ferment : The Tumultuous 1960s Ralph Nader and the Consumer Movement. An extract is reproduced. It rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d set of basic objectives particularly for governments of developing and newly independent countries for structuring and strengthening their consumer protection policies and legislations. These guidelines were adopted recognizing that consumers often face imbalances in economic terms, educational levels and bargaining power and bearing in mind that consumers should have the right of access to non hazardous products as well as the importance of promoting just, equitable and sustainable economic and social development. Indian perspective 35. It was in this background that the Indian Parliament had enacted the Consumer Protection Act, 1986. The declared objective of the statute was to provide for better protection of the interests of consumers. It seeks to provide a speedy and inexpensive remedy to the consumer. 36. The Consumer Protection Act, 1986 is one of the benevolent social legislations intended to protect the large body of consumers from exploitation. The Act has come as a panacea for consumers all over the country and is considered as one of the most important legislations enacted for the benefit of the consumers. The Consumer Protection Act, 1986 provides inexpensive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersonally or through an agent . 42. The issue is Do the Rules permit a party to have an Agent for merely presenting the papers on its behalf or can the Agent even act and argue? Maharashtra Consumer Protection Rules, 1987 Rule 2(b) defines an Agent to mean a person duly authorized by a party to present any complaint, appeal or reply on its behalf before the State Commission or the District Forum. Under Rule 4(7), the parties are obliged to either appear personally or through authorized agent. If the complainant or his authorized agent fails to appear before the District Forum it may in its discretion either dismiss the complaint for default or decide it on merit. Similarly, where the opposite party (defendant) or its authorized agent fails to appear on the day of hearing, the District Forum may decide the complaint ex parte. A perusal of the provisions show that while the advocates have not been debarred from pleading and appearing, the parties have been given an option to either appear personally or be represented by duly authorized agents. Every advocate appointed by a party is an agent. However, the agent as contemplated under the rules need not necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act was also amended in the years 1991 and 1993 to make it more effective and purposeful. 46. In the developed countries the consumer movement has been going on for several decades in which the trader and the consumer find each other as adversaries. 47. The Consumer Protection Act, 1986 was enacted with the object and intention of speedy disposal of consumer disputes at a reasonable cost, which is otherwise not possible in ordinary judicial/court system. 48. In the book on Administrative law, its distinguished author M.P. Jain has brought about the distinction between the Court and the Tribunal. According to him Courts are bound by prescribed rules of procedures and evidence and their proceedings are conducted in public. The lawyers are entitled to appear before them and the judge in the open Court hears the case and decides it by giving reasons for a judgment. The courts are totally independent of the executive will, whereas, the Tribunals are not ordinarily governed by the provisions of Code of Civil Procedure and the Evidence Act, except to the extent it is indicative in the Act itself. There is also a significant difference between the Court and the Tribunal with r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h date, the State Commission may, in its discretion, either dismiss the appeal or decide it on the merit of the case. If respondent or his authorized agents fails to appear on such date, the State Commission shall proceed ex-parte and shall decide the appeal exparte on merits of the case. 54. The clear interpretation of the Rules is that the authorised agent appointed by the (consumer) complainant may appear before the Consumer Fora. The Consumer Fora may, in its discretion, either dismiss the appeal or decide it on the merit of the case. In this view of the matter, it is abundantly clear that the authorized agent of the complainant can act and plead before the State Tribunal otherwise the complaint is liable to the dismissed. 55. The learned counsel for the respondents submitted that non-advocates are permitted to appear in various Forums including Income Tax Tribunal, Sales Tax Tribunal and Monopolies and Restrictive Trade Practises Tribunal, therefore, wherever the legislature has accorded the permission to the persons other than advocates, who appear before these Tribunals can act and appear according to the object of the Act and legislative intention. Legislative intent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct upon the true intention of the legislature. If a statutory provision is open to more than one interpretation, the court has to choose that interpretation which represents the true intention of the legislature. 62. In Bhatia International v. Bulk Trading S.A. and Another (2002) 4 SCC 105, a three Judge Bench of this Court has held as under:- The conventional way of interpreting a statute is to seek the intention of its makers. If a statutory provision is open to more than one interpretation then the Court has to choose that interpretation which represents the true intention of the legislature. 63. It is the bounden duty of the courts to discern legislative intention and interpret the statutes accordingly. The instant case Act and Rules have made specific provisions by which the agents have been permitted to plead and appear on behalf of the parties before the Consumer Forums. Therefore, to interpret it differently would be contrary to legislative intention. 64. We have heard the learned counsel for the parties and the learned amicus curiae. 65. In the written submissions, Shri Jawahar Lal Gupta, learned amicus curiae, submitted that the advocates in these appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. He submitted that in the appeal filed by the Bar Council, considerable emphasis on discipline and ethics was expressed by the learned counsel for the Council. During the course of hearing, a reference was made to the Regulations as framed by the National Consumer Disputes Redressal Commission (For short, National Commission ) under the Act with the approval of the Central Government in 2005. The Regulations actually appear at page 52 of the Bar Act (Professional s 2010 Edition). 69. A perusal thereof shows that the Regulations appear to have been framed by the National Commission in exercise of the power conferred by section 30A with the previous approval of the Central Government. The footnote indicates that these were published in the Gazette of India dated May 31, 2005. 70. Specifically, Regulation 16 inter alia makes provision to ensure that the agents do not indulge in any malpractice or commit misconduct. The relevant part provides as under:- (6) A Consumer Forum has to guard itself from touts and busybodies in the garb of power of attorney holders or authorised agents in the proceedings before it. (7) While a Consumer Forum may permit an authorised agent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een consumers and suppliers of goods and services. The forum so created is uninhibited by the requirement of court fee or the formal procedures of a court. Any consumer can go and file a complaint. Complaint need not necessarily be filed by the complainant himself; any recognized consumers' association can espouse his cause. Where a large number of consumers have a similar complaint, one or more can file a complaint on behalf of all. Even the Central Government and State Governments can act on his/their behalf. The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for business-to-consumer disputes and not for business-to-business disputes. This scheme of the Act, in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal. 76. In Indian Photographic Company Limited v. H.D. Shourie (1999) 6 SCC 428 the court has held that a rational approach and not a technical approach is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturers and traders of consumer goods. A three-tier fora comprising the District Forum, the State Commission and the National Commission came to be envisaged under the Act for redressal of grievances of consumers 79. The agent has been defined both in the Consumer Protection Rules, 1987 and under the Maharashtra Consumer Protection Rules, 2000. The agents have been permitted to appear before the Consumer Forums. The appearance of authorized agents is not inconsistent with section 33 of the Advocates Act, 1961. 80. The legislature in its wisdom has granted permission to the authorized agents because most of the cases before the Consumer Forums are small cases of relatively poor people where legal intricacies are not involved and great legal skills are not required, which may be handled by the authorized agents. 81. The other reason is that a large number of litigants may not be able to afford heavy professional fees of trained advocates, therefore, authorized agents have been permitted. 82. It is the bounden duty and obligation of the Court to carefully discern the legislative intention and articulate the same. In the instant case we are not really called upon to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (7) While a Consumer Forum may permit an authorized agent to appear before it, but authorised agent shall not be one who has used this as a profession: Provided that this sub-regulation shall not apply in case of advocates. 89. These provisions are enacted for providing proper guidelines and safeguards for regulating appearance and audience of the agents. The aforesaid regulation in our considered opinion is a reasonable restriction on the right to appear by an agent. Such reasonable restrictions as provided for are to be strictly adhered to and complied with by the Consumer Forum hearing cases under the Consumer Protection Act so as to rule out any misuse of the privilege granted. In terms of the said regulation and other regulations as provided and framed by the National Commission and as approved by the Parliament of India, the Consumer Forum has the right to prevent an authorized agent to appear in case it is found and believed that he is using the said right as a profession. The Consumer Forums being empowered with such Regulations would be in a position to judge whether the agent appearing before it is in any manner exercising such privileges granted for any ulterior purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y) may receive for the services rendered by him. Tax Court 96. The US Tax Court adjudicates disputes over federal income tax. Taxpayers are permitted to litigate in many legal forums (such as a district federal court), but many choose the Tax Court because they may litigate their case without first paying the disputes tax amount in full. Non-Attorney Representation 97. Tax Court Rules state that all representatives must be admitted to practice before the Tax Court in order to appear in proceedings on behalf of a taxpayer. To be admitted, a nonattorney must pass a special written examination and obtain sponsorship from two persons who are already admitted to practice before the Court. 98. Representatives before the Court are instructed to act in accordance with the letter and spirit of the Model Rules of Professional Conduct of the American Bar Association. Representatives may be disciplined for inappropriate conduct and may be suspended or banned from appearing in the Court. Court of Appeals for Veterans Claims 99. The Court of Appeals for Veteran s Claims reviews decision of the Board of Veterans Appeals, which adjudicates disputes pertaining to Veteran s benefits. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The judge may disqualify a non-attorney from appearing in court if the judge has reason to believe the non-attorney has intentionally misled the court, or otherwise demonstrated that he is unsuitable to exercise [the right to be a representative]. The statute specifically mentions that the judge may disqualify a representative for conduct done in previous judicial appearances. 3) The court rules and relevant legislation do not appear to prescribe a limit to the number of appearances a non-lawyer can make before the small claims court. However, the statute allows a judge to discipline a non-attorney representative for conduct in previous judicial proceedings. This suggests that if a judge believes a non-attorney is making frequent appearances before a small claims court and charging in appropriate fees, the judge may disqualify the non-attorney from appearing in a particular case. Australia 106. State Governments in Australia have their own court systems and also specialized courts to deal with certain subject matter. In the State of Victoria, statutory law states that only lawyers may appear in court as representatives with a few exceptions. A non-attorney may represent a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation Process a) The National Commission may consider creating a process through which non-advocates may be accredited to practice as representatives before a Forum. b) Non-advocates who are accredited through this process shall be allowed to appear before a Forum on a regular basis c) The accreditation process may consist of 1) an written examination that tests an applicant s knowledge of relevant law and ability to make legal presentations and arguments 2) an inspection of the applicant s educational and professional background 3) an inspection of the applicant s criminal record d) the National Commission may prescribe additional requirements for accreditation at its discretion provided that the additional requirements are not arbitrary and do not violate existing law or the Constitution. Fees a) A representative who wishes to receive a fee must file a written request before the Forum b) The presiding officer will decide the amount of the fee, if any, a representative may charge or receive c) When evaluating a representative s request for a fee, the presiding officer may consider the following factors : 1) the extent and type of services the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
