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PETITIONER: THE CHAIRMAN, THIRUVALLUVAR  TRANSPORT CORPORATION

       Vs.

RESPONDENT: THE CONSUMER PROTECTION COUNCIL

DATE OF JUDGMENT09/02/1995

BENCH: AHMADI A.M. (CJ) BENCH: AHMADI A.M. (CJ) MOHAN, S. (J)

CITATION:  1995 AIR 1384            1995 SCC  (2) 479  JT 1995 (2)   441        1995 SCALE  (1)525

ACT:

HEADNOTE:

JUDGMENT: 1.   The  short question which arises for  consideration  in the present appeal is whether the National Consumer Disputes Redressal  Commission  (hereinafter  called  ’the   National Commission’)  constituted under Section 20 of  the  Consumer Protection  Act,  1986  (for  short  ’the  1986  Act’)   had jurisdiction  to  adjudicate upon a claim  for  compensation arising out of a motor vehicle accident, notwithstanding the jurisdiction  conferred  on a  Claims  Tribunal  constituted under  the  Motor  Vehicles Act 1988 (for  short  ’the  1988 Act’).  The factual matrix in which this question arises for consideration, briefly stated, is as under. 2.   Shri.   K.Kumar  was  travelling  from  Kombakonam   to Thanjavur on the night between 2nd and 3rd June, 1990 in  an omnibus  which  met with an accident  near  village  Vayalur while trying to avert a bullock-cart.  It appears that  when the  bus  driver  was in the  -process  of  over-taking  the bullock-cart, the bullocks got panicky whereupon the  driver swerved  the bus to the left and ran into the branches of  a tree  on the road side resulting in damage to  the  vehicle; the  window  panes  having been  smashed.   As  the  vehicle suddenly swerved and the driver applied the brakes Shri.  K. Kumar  who  was sitting in the centre of the rear  seat  was thrown  in  the  front and hit against  the  iron  side-bar, sustaining a serious head injury.  Subsequently he succumbed to the injury.  The Consumer Protection Council, Tamil Nadu, on  behalf  of  the legal representatives  of  the  deceased lodged a complaint before the National Commission under  the 1986  Act claiming compensation.  The appellant herein  con- tested  the  claim contending that the claimant,  i.e.,  the Council,  had no locus standi to maintain the action and  in any the National Commission had no jurisdiction to entertain a petition since exclusive jurisdiction was conferred by the 1988 Act on the Claims Tribunal constituted thereunder.  The National  Commission, contends the  appellant,  side-stepped the  question regarding jurisdiction and  without  answering

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the  same awarded Rs.5,10. lacs by way of compensation  with -interest at 18% per annum from 1st May, 1992 till the  date of  payment.  In addition thereto a sum of Rs. 10,000/-  was awarded  by way of costs.  The entire payment together  with costs  was ordered to be made within three months  from  the date  of judgment.  It is against the said decision  of  the National Commission that the present appeal is preferred. 444 3.   In   order  to  appreciate  the  principal   contention relating to the jurisdiction of the National Commission,  it is necessary to look to the relevant provisions of the  1986 Act.  This law was enacted to provide for better  protection of  the interests of consumers and for that purpose to  make provision  for  the establishment of consumer  councils  and other authorities for the settlement of consumers’  disputes etc.   Section  2 contains the dictionary of the  said  Act. Section 2(c) defines a complaint to mean any allegation made in writing by a consumer complaining that as a result of any unfair  trade  practice  or  a  restrictive  trade  practice adopted by any trader he had suffered loss or damage or  the goods  bought  by  him or agreed to be bought  by  him  were defective  or the services hired or availed of or agreed  to be hired or availed of by him were deficient in any  respect or that a trader was guilty of charging a price in excess of the  fixed  price or that displayed on the goods  or  packet containing  such  goods Section 2(d) defines a  consumer  as under:-               "S. 2(d) - ’consumer’ means any person who,-               (i)   buys any goods for a consideration which               has  been paid or promised or partly paid  and               partly  promised,  or  under  any  system   of               deferred payment and includes any user of such               goods  other  than the person  who  buys  such               goods  for consideration paid or  promised  or               partly  paid or partly promised, or under  any               system  of deferred payment when such  use  is               made  with  the approval of such  person,  but               does  not  include a person who  obtains  such               goods for resale any commercial purpose; or               (ii)  hires  or avails of any services  for  a               consideration which has been paid or  promised               or  partly paid and partly promised, or  under               any  system of deferred payment  and  includes               any  beneficiary of such services  other  then               the person who hires or avails of die services               for consideration paid or promised, or  partly               paid and partly promised, or under any  system               of  deferred payment, when such  services  are               availed  of  with the approval  of  the  first               mentioned person." Section 2(e) defines a "consumer dispute" to mean, a dispute where  the  person against whom a complaint has  been  made, denies   or  disputes  the  allegations  contained  in   the complaint.   Section  2(f) defines a "defect"  to  mean  any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard expected to be maintained by  or under  any  law  by a trader in  any  manner  whatsoever  in relation  to any goods.  Deficiency says Section 2(g)  means any  fault, imperfection, shortcoming or inadequacy  in  the quality, nature and manner of performance which is  required to  be maintained by or under any law for the time being  in force  or has been undertaken to be performed by  a  person. Section 2(o) defines "service" as under:               service"  means  service  of  any  description               which is made available to potential users and

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             includes   the  provision  of  facilities   in               connection with banking, financing, insurance,               transport, processing, supply of electrical of               other  energy,  board  or  lodging  of   both,               housing construction, entertainment, amusement               or the purveying of news or other information,               but  does  not include the  rendering  of  any               service free of charge or under a contract  of               personal service." Section  3 provides that the provisions of the Act shall  be in addition to and not in 445 derogation  of the provisions of any other law for the  time being  in  force.   Section 12 inter alia  provides  that  a complaint  in  relation to any goods sold  or  delivered  or agreed  to be sold or delivered or any service  provided  or agreed to be provided may be filed with a District Forum  by the  consumer  to whom such goods are sold or  delivered  or agreed  to be sold or delivered or such service provided  or agreed  to  be  provided  or  by  any  recognised   consumer association  whether the consumer confirmed is a  member  of such  association  or not.  The explanation to  the  section states  that a "recognised consumer association"  means  any voluntary   consumer   association  registered   under   the Companies  Act, 1956 or any other law for the time being  in force.   Section  21  deals with  the  jurisdiction  of  the National  Commission with which we are concerned.  It  reads as under: "21.   Jurisdiction of the National Commission - Subject  to the  other provisions of this Act, the  National  Commission shall have jurisdiction.               (a)   to entertain-               (i)complaints where the value of the goods  or               services  and  compensation, if  any,  claimed               exceeds rupees twenty lakhs; and               (ii)appeals  against the orders of  any  State               Commission; and               (b)   to  call  for the records and  pass  ap-               propriate orders in any consumer dispute which               is  pending before or has been decided by  any               State  Commission  where  it  appears  to  the               National Commission that such State Commission               has exercised a jurisdiction not vested in  it               by   law,   or  has  failed  to   exercise   a               jurisdiction  so vested, or has acted  in  the               exercise of its               jurisdiction   illegally  or   with   material               irregularity. 4.   From  the  Preamble and the various Provisions  of  the 1986  Act  it  becomes clear that whenever  a  complaint  in relation to any goods sold or delivered or agreed to be sold or  delivered  or  any  service provided  or  agreed  to  be provided  arises, the complainant, i.e. the consumer or  any voluntary  consumer association or the Central or any  State Government can move the appropriate Forum under the  statute for redressal.  If the amount claimed by way of compensation exceeds  the  minimum  stated in section  21,  the  National Commission  can take jurisdiction, hear and dispose  of  the complaint.   The limit of Rs. 20 lakhs was  substituted  for Rs.  10 lakhs by Amendment Act 50 of 1993.  In  the  present case,  it is an admitted fact that no petition was filed  on behalf  of the legal representatives of the deceased  victim of  the  accident before the Motor Vehicle  Claims  Tribunal constituted  under  the 1988 Act.  After the  lapse  of  the period  of six months which is the period of limitation  for

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preferring  -such a claim expired, the respondent  preferred an application claiming Rs.20 lakhs before the National Com- mission,  It  is,  therefore, obvious  that  the  claim  was preferred  before  the National Commission since  the  legal representatives  of  the deceased had failed to  prefer  the claim  before  the Tribunal under the 1988 Act.   It  would, therefore,  the  proper  at this stage to  refer  to  a  few provisions of the 1988 Act. 5.   The  said Act was enacted to consolidate and amend  the law  relating  to motor vehicles.  Section 2(28)  defines  a "motor  vehicle"  or  "vehicle"  to  mean  any  mechanically propelled  vehicle  adapted for use upon roads  whether  the power of 446 propulsion  is  transmitted  thereto  from  an  external  or internal  source and includes a chassis to which a body  has not  been  attached and a trailer.  The  vehicle  which  was -involved in the accident was indisputably a vehicle  within the  meaning of the said provision.  Chapter XII  refers  to Claims  Tribunals.   Section  165  provides  that  a   State Government  may,  by notification in the  Official  Gazette, constitute  one or more Motor Accident Claims  Tribunal  for such  area as may be specified in the notification  for  the purpose of adjudicating upon claims for compensation in  re- spect of accidents involving the death of, or bodily  injury to,  persons  arising out of the use of motor  vehicles,  or damages  to  any property of a third party  so  arising,  or both.   Section  166 next provides that an  application  for compensation may be made by the person who has sustained the injury  or by the owner of the property or where  death  has resulted  from  the accident, by -all or any  of  the  legal representatives  of  the  deceased  or  by  any  agent  duly authorised by the person injured or all or any of the  legal representatives  of  the  deceased,  as  the  case  may  be. Section 168 then says that on receipt of an application  for compensation, the Claims Tribunal shall, after giving notice of  the  application  to the insurer and  after  giving  the parties an opportunity of being- heard, hold an inquiry  and make  an award determining the amount of compensation  which appears to be a just.  Section 175 next provides that  where any  Claims Tribunal has been constituted for any  area,  no Civil  Court  shall  have  jurisdiction  to  entertain   any question  relating to any claim for compensation which  -may be  adjudicated upon by the Claims Tribunal for  that  area. In the present case the death had occurred due to the injury suffered in the accident arising out   of   the   use  of  a  motor   vehicle.    The   legal representatives  of  the deceased did not prefer  any  claim before the Claim Tribunal for the area in which the accident occurred  but instead the respondent-council  preferred  the claim before the National Commission which without examining the  question whether or not it had jurisdiction  awarded  a sum of Rs. 5,10 lakhs by way of compensation. 6.   The  question  which then arises for  consideration  is whether   the  National  Commission  had   jurisdiction   to entertain  the claim application and award  compensation  in respect of an accident involving the death of Shri K.  Kumar caused  by the use of a motor vehicle.  Clearly  the  Claims Tribunal   constituted  for  the  area  in   question,   had jurisdiction to entertain any claim for compensation arising out  of  the fatal accident since such a  claim  application would  clearly fall within the ambit of section 165  of  the 1988  Act.  The 1988 Act can be said to be a special Act  in relation  to the claims of compensation arising out  of  the use  of a motor vehicle.  The 1986 Act being a  law  dealing

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with  the question of extending protection to  consumers  in general,  could, therefore, be said to be a general  law  in relation  to  the specific provisions  concerning  accidents arising  out of the use of motor vehicles found  in  Chapter XII of the 1988 Act.  Ordinarily the general law must  yield to  the  special law.  Besides, the  complaint  in  question cannot  be  said  to be in relation to  any  goods  sold  or delivered  or agreed to be sold or delivered or any  service provided  or  agreed to be provided to  the  deceased.   The expression  "  service"  as defined by the  1986  Act  means service  of  any  description which  is  made  available  to potential  users  and includes the provision  of  facilities inter alia 447 in  connection with transport.  The accident  that  occurred had  nothing  to do with service provided to  the  deceased. This becomes obvious when one reads the provision along with the  definition of complaint in section 2(c) and service  in section  2(o)  of  the 1986  Act.   Complaint  according  to section 2(c) means any application in writing in relation to an unfair trade practice or as a restrictive trade  practice adopted by any trader or in relation to goods bought by  him or  agreed to be bought by him.  Both these clauses have  no application  whatsoever.   The third clause relates  to  the services  hired  or  availed of or agreed  to  be  hired  or availed of by a consumer.  Therefore, at best it can be said the  complaint in question related to the service  hired  or availed  of by the deceased.  The complaint in  the  instant case  cannot be said to be in relation to any service  hired or  availed of by the consumer because the injury  sustained by the consumer had nothing to do with the service  provided or  availed  of by him but the fatal injury was  the  direct result of the accident on account of which he was thrown out of  his seat and dashed against the iron handle of the  seat in  front of him.  We, have,, therefore, no manner of  doubt that this case squarely fell within the ambit of section 165 of  the  1988  Act  and  the  Claims  Tribunal   constituted thereunder  for  the area in question  had  jurisdiction  to entertain  the same.  As pointed out earlier, the  1988  Act and,  in particular, the provisions in Chapter  XII  thereof creates  a  Forum before which the claim can be laid  if  it arises  out of an accident caused by the use of a motor  ve- hicle.   That  being a special law would  prevail  over  the relevant general law such as the 1986 Act but in the instant case even that question does not arise for the simple reason that   the   dispute  in  question  did  not   attract   the jurisdiction of the National Commission, whatsoever, and the National  Commission has not shown how it had  jurisdiction. The issue was pointedly raised and for reasons best known to the  National Commission it failed to come to grip with  it. Surprisingly, there is no discussion whatsoever in the order of the National Commission in this behalf We arc, therefore, of  the  opinion that the National Commission did  not  have jurisdiction  and as counsel for the appellant put  it  this was a case of unwarranted exercise of jurisdiction. 7.   In fact only a few months ago i.e., on 15thApril, 1993, while  disposing  of a revision application in the  case  of Union   of   India  &  Anr  v.  M.Adai   Kalam   II   (1993) CPJ145(N.C.)the  National  Commission held that  it  had  no jurisdiction  to entertain complaints of loss.  destruction, damage  or  non-delivery of goods by railway on  account  of deficiency  in  service since such claims  fell  within  the exclusive  jurisdiction of the Railway Claims Tribunal  con- stituted  under the Railway Claims Tribunal Act, 1987.   Yet it is difficult to comprehend how it exercised  jurisdiction

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in the present case. 8.   This  Court while admitting the appeal  on  3rdJanuary, 1994 specifically stated that no notice need be sent to  the widow and the child who were awarded compensation.  Not only that  the appellant was directed to pay the compensation  to the  widow and the child within three months therefrom.   It is obvious from this order that this Court felt that it  was not  necessary to make the window and the child run to  this Court to settle the question of law.  The respondent-counsel did not appear in response to the notice but having 448 regard  to the importance of the question this Court by  its order  dated 31st August, 1994 requested Shri R.P. Bhatt  to assist  this Court amicus curiae in answering  the  question whether  or  not in such cases the National  Commission  has jurisdiction  to  entertain the complaint.  In  the  circum- stances  it is not necessary for us to go into  compensation since  there  is no question of reversing the award  in  the sense of calling upon the widow and the child to refund  the amount of compensation already received.  The main  emphasis was to decide the question of law as it was apprehended that similar  cases which have become time barred under the  1988 Act  may be taken to the National Commission under the  1986 Act  even though that body had no  jurisdiction  whatsoever. We should, therefore, rest content by deciding the  question of jurisdiction and holding that the National Commission had no  jurisdiction  whatsoever  and  was  entirely  wrong   in exercising jurisdiction and awarding compensation.  However, in the facts and circumstances of this case while we reverse the order of the National Commission by allowing this appeal we  direct that the appellant will -not be entitled  to  re- cover  the compensation money already paid to the widow  and the  child under this Court’s order.  The appeal %ill  stand disposed of accordingly.  No order as to costs. 449