How to determine pecuniary jurisdiction of Consumer Forum and Commissions

FeaturedNational Commission for Consumer

Inclusion of amount of compensation and interest in the claim:

In 2003 following averment in the Complaint as prayer came up for consideration before a 3 member bench of National Commission:

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

A three member bench of National Commission concluded:

Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period up to the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.

[Source: Shahbad Cooperative Sugar Mills Ltd. vs. National Insuranc Co. Ltd., 2003 (2)CPJ 81 (National Commission)] (3 Bench comprising of K G Member, R Rao, B Taimni)

However in 2016 without referring to the aforesaid case another 3 member bench of National Commission held (in Ambrish Kumar Shukla vs. Ferrus Infrastructure) that compensation and interest shall be included in determining the jurisdiction. It was held:

It is the value of the goods or services, as the case may be, and not the value or cost of removing the deficiency in the service which is to be considered for the purpose of determining the pecuniary jurisdiction.

The interest has to be taken into account for the purpose of determining the pecuniary jurisdiction of a Consumer Forum.

The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, along with the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a Consumer Forum.

In a complaint instituted under Section 12(1)(c) of the Consumer Protection Act, the pecuniary jurisdiction is to be determined on the basis of aggregate of the value of the goods purchased or the services hired or availed by all the consumers on whose behalf or for whose benefit the complaint is instituted and the total compensation claimed in respect of such consumers.

A complaint under Section 12(1)(c) of the Consumer Protection Act can be instituted only by one or more consumers, as defined in Section 2(1)(d) of the Consumer Protection Act. Therefore, a group of Cooperative societies, Firms, Association or other Society cannot file such a complaint unless such society etc. itself is a consumer as defined in the aforesaid provision.

Ambrish Kumar Shukla vs. Ferrous Infrastructure Pvt. Ltd. decided on 07.10.2016 in CC  97/2016

Conflict of Opinion:

Thus there exists two judgments, both by the National Commission with same number of members and both on one subject, but both at variance inasmuch as the one pronounced earlier (Surjit Singh Jhandwal supra), holds that interest is not to be included in claimed amount while determining pecuniary jurisdiction, while the one pronounced later (Ambrish Shukla supra), holds that the interest has to be included for this purpose.

Even though National Commission is not a court of record, for subordinate Forums and State Commission it is difficult follow the conundrum.

What is a shared residence under Domestic Violence Act.

In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence Under Section 498-A of the Penal Code, 1860. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the Scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality…”

[ Source: Kunapareddy Alias NookalaShanka Balaji Vs. Kunapareddy Swarna Kumari and Anr., (2016) 11 SCC 774]

Section 2(s), of Domestic Violence Act defines shared household asunder:

“(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;”

Questions raised before the Court:

(1) Whether definition of shared household under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share?

(2) Whether judgment of this Court in S.R. Batra and Anr. Vs. Taruna Batra, (2007) 3 SCC 169 has not correctly interpreted the provision of Section 2(s) of Protection of Women from Domestic Violence Act, 2005 and does not lay down a correct law?

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A book about law relating to Bail or Jail

Law relating arrest, bail and personal liberty in India is governed by various legislations as also a number of precedents.

Click here to read free sample of Bail at Google Play Books.

Click here to read free sample of Bail or Jail at Amazon Kindle.

An ebook about law relating to Bail in India. It helps to determine how to get out of prison or jail quickly by explaining all aspects of this branch of Criminal Law.

As regards legislations, it is governed by Criminal Procedure Code, 1973. Offences governed by Indian Penal Code 1860 besides other specialised laws e.g. Narcotics Drugs and Psychotropic Substances Act, 1985, Benami Property Act or Customs Act, 1962 etc.

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Crime Investigation in India

An ebook on Crime Investigation in India:

Crime Investigation in India is governed by various legislations as also a number of legal precedents.

As regards legislations, it is governed by Criminal Procedure Code, 1973. Offences governed by Indian Penal Code 1860 besides other specialised laws e.g. Narcotics Drugs and Psychotropic Substances Act, 1985. Evidence of witnesses during trial is to be evaluated on the touch stone of Evidence Act, 1872.

Apart from above legislations, there are numerous directions, guidelines and cautions by Supreme Court to protect the personal liberty, human rights and human dignity under article 21 of the Constitution of India.

Crime investigation is the domain of police but in case of economic or other classes of crimes some other departments are also authorised to investigate. More importantly the matters of national security are investigated by National Investigation Agency or NIA for short. But all these agencies are bound by same laws barring few exceptions.

The commencement of an investigation happens when a crime is committed. The First Chapter is in regard to introduction to the Crime and Offences.

Read a free sample at Google Play Store.

Read a free sample at Amazon Kindle here

The Chapter 2 is about the Police itself. It explains the source of power of Police Officers and hierarchy of Government over it.

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Considerations for Transfer of Criminal Trial out of State

Balancing the convenience

While considering a plea for transfer, the convenience of parties would be a relevant consideration. It can’t just be the convenience of the petitioner but also of the Complainant, the Witnesses,the Prosecution besides the larger issue of trial being conducted under the jurisdictional Court. When relative convenience and difficulties of all the parties involved in the process are taken into account, it is clear that the petitioner has failed to make out a credible case for transfer of trial to alternative venues outside the State.

Credibility of Judiciary:

The transfer of trials from one state to another would inevitably reflect on the credibility of the State’s judiciary and but for compelling factors and clear situation of deprivation of fair justice, the transfer power should not be invoked. This case is not perceived to be one of those exceptional categories.

Accused/Journalist involved in property disputes:

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Teachers after superannuation may continue in service for entire academic year

University Statute on Superannuation:

The appellants relied on Statute No. 16.24 of the University, applicable to them,contending that they were entitled to continue beyond the last date of the month in which each of them attained the age of superannuation, till the “30th of June following”in terms of that provision. That statute reads as follows:

“16.24 (1) The age of superannuation of a teacher of the University, whether governed by the new scale of pay or not shall be sixty-five years.(2) No extension in service beyond the age of superannuation shall be granted to any teacher after the date of commencement of these statutes.provided that a teacher whose date of superannuation does not fall on June 30, shall continue on service till the end of the academic session, that is June 30, following and will be treated as on re-employment from the date immediately following his superannuation till June, 30, following.(Provided further that such physically and mentally fit teachers shall be reappointed for a further period of two years, after June, 30, following the date of their superannuation as were imprisoned for taking part in freedom struggle of 1942 and are getting freedom fighters pension) Provided also that the teachers who were re-appointed in accordance with the second proviso as it existed prior to the commencement to the Kumaun University (Twenty-third amendment) First Statute, 1988 and a period ofone year has not elapsed after the expiry of the period of their reemployment, may be considered for re-appointment for a further period of one year.”

Teachers to continue till June 30th

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Scope of Right to Protest in India

Shaheen Bagh Agitation was not warranted:

India, as we know it today, traces its foundation back to when the seeds of protest during our freedom struggle were sown deep, to eventually flower into a democracy. What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy.

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Maintainability of Special Leave Petition against an Order passes in Review

Consistency is the cornerstone of the administration of justice.

It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principle are based on public policy.

The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended.

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Exercise of statutory discretion by Government has to be in public interest.

The mighty says to the meek that you cannot command me to act; I shall act if f like, I shall not act if I choose not to act. The meek says that I possess the strength of law to give you the command; the law, which is no respector of person and which does not allow anybody to rise so high as to be above it.

State Of Orissa vs Janamohan Das, AIR 1993 Ori 180

Discretion of the Government:

Cuttack was calm when the day dawned. Who had known that a “disaster of unprecedented proportions” was going to strike and disturb placid waters of the Mahanadi and Katha-jodi? But it took place. A man-made tragedy took a great toll 124 deaths, according to the State), and it was our well known hooch tragedy. Not that the people of this State have not know a about such tragedies taking place in the past, but then, it was the great dimension of the tragedy which stunned the people, so much so that they almost lost faith in all instrumentalities of the State. People started thinking whether they had been left to the wolves to be killed. The question with which we are seized is about the responsibility of the State to find out why spurious liquor took the toll of 124 lives, and what steps are required to be taken to stop recurrence of such a heinous crime, at the root of which lies the naked greed for money and nothing else.

Continue reading “Exercise of statutory discretion by Government has to be in public interest.”

Bail to an accused not arrested during investigation

Allegations of Cheating

Learned counsel for the complainant vehemently contended that the appellant had duped him of a considerable amount of money and that looking to the seriousness of the allegations against him, this was not a case in which the appellant ought to be granted bail by this Court. Learned counsel supported the view taken by the trial judge as well as by the Allahabad High Court. He argued that given the conduct of the appellant in not only cheating the complainant and depriving him of a considerable sum of money but thereafter issuing a cheque for which payment was stopped made it an appropriate case for dismissal.

Conduct of Investigation:

During the entire period of investigations which appear to have been spread over seven months, the appellant was not arrested by the investigating officer. Even when the appellant apprehended that he might be arrested after the charge sheet was filed against him, he was not arrested for a considerable period of time. When he approached the Allahabad High Court for quashing the FIR lodged against him, he was granted two months time to appear before the trial judge. All these facts are an indication that there was no apprehension that the appellant would abscond or would hamper the trial in any manner. That being the case, the trial judge, as well as the High Court ought to have judiciously exercised discretion and granted bail to the appellant. It is nobody’s case that the appellant is a shady character and there is nothing on record to indicate that the appellant had earlier been involved in any unacceptable activity, let alone any alleged illegal activity.

[Source: Dataram Singh vs The State of Uttar Pradesh decided by SC on 6 February, 2018]

Burden of proof under NDPS Act?

The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable.

Presumption does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. That the right of the accused to a fair trial could not be whittled down under the Act was considered in Noor Aga vs. State of Punjab, (2008) 16 SCC 417 observing:

“58. … An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.
59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.”

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