IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WP(C).No. 18789 of 2008(J) -------------------------------------- PETITIONER: ------------------- M/S. EMINENT SEA FOODS PVT. LTD., PLOT NO.9, COCHIN FISHERIES HARBOUR, THOPPUMPADY, KOCHI, REP. BY ITS MANAGING DIRECTOR, MAJ (RTD.) C.J. THOMAS, AGED 76, YOHANNAN VARGHESE, RESIDING AT ANSU VILLA, KADAVANTHRA, KOCHI-20. BY ADV. MR.V.VENUGOPALAN NAIR, MR.C.UNNIKRISHNAN. RESPONDENTS: ------------------------ 1. THE KERALA STATE INDUSTRIES DEVELOPMENT CORPORATION LTD., REP. BY ITS MANAGING DIRECTOR, KESTEN ROAD, KOWDIAR, THIRUVANANTHAPURAM. 2. THE KERALA STATE FINANCIAL CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, HEAD OFFICE, VELLAYAMBALAM, THIRUVANANTHAPURAM. 3. THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHCAUD, THIRUVANANTHAPURAM. R1 BY MR. SAJI VARGHESE , S.C, K.S.I.D.C, R2 BY MR. M.M.SAYED MUHAMMED, S.C, K.F.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/01/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.18789/2008-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT IN O.P. 18/2003. EXT.P.1.A: COPY OF THE POSTAL COVER SENDING EXT.P.1. RESPONDENTS' EXHIBIT: EXT.R1.A: COPY OF THE VERSION ON 24/05/2004 FILED BY THE R.1. BEFORE THE R.3. IN O.P. NO. 18/2003. //TRUE COPY// P.A. TO JUDGE. prv. ANTONY DOMINIC, J. -------------------------------- W.P.(C) NO.18789 OF 2008 (J) ------------------------------------------------------ Dated this the 28th day of January, 2009 J U D G M E N T Challenge in this writ petition is against Exhibit P1 order passed by the Kerala State Consumer Disputes Redressal Commission, dismissing O.P.No.18 of 2003 filed by the petitioner as barred by limitation and also on the ground that it is not maintainable since the petitioner is not a “consumer” as defined under the Consumer Protection Act, 1986. 2. The contention raised by the learned counsel for the petitioner is that Exhibit P1 needs to be set aside by this Court, for the reason that the order has been passed by a single member of the Kerala State Consumer Disputes Redressal Commission. According to counsel, an order could be passed only by a bench consisting of two members. W.P.(C) No.18789 of 2008 - 2 - 3. The learned counsel for the petitioner referred to Section 16(1B)(i) and (ii) of the Consumer Protection Act, 1986. Section 16(1B)(i) provides that the jurisdiction, powers and authority of the State Commission may be exercised by benches thereof. Section 16(1B)(ii) provides that a bench may be constituted by the President with one or more members as the President may deem fit. The counsel wanted to me to understand the section as providing that a bench, with at least two members alone could be constituted by the President. 4. However, I am not persuaded to understand the section in the manner as canvased by the counsel for the petitioner. In my view, it is obvious from Section 16 referred to above, that it is within the powers of the President of the Commission to constitute benches with one or more members as he may deem fit. If that be so, the contention that Exhibit P1 having been passed by a a single member of W.P.(C) No.18789 of 2008 - 3 - the Commission is without jurisdiction is totally unacceptable. 5. The counsel then referred me to Section 16(1B)(iii) of the Act which provides the procedure that is to be adopted in case that there is difference of opinion between members of a bench. In my view, sub section (iii) referred to by the counsel only lays down the procedure to resolve the difference of opinion, which may arise in a bench consisting of more than one member. That does not mean that there can be only benches of more than one member. 6. The learned counsel then referred to me to Section 18 of the Act, which provides that provisions of Sections 12, 13 and 14 and rules made thereunder for the disposal of complaints by District Forum shall, with such modifications as may be necessary, be applicable to the State Commission. W.P.(C) No.18789 of 2008 - 4 - 7. It is true that Section14(2) provides that every proceeding referred to in Sub-section (1) shall be conducted by the President of the District Forum and at least one member thereof sitting together. Sub Section 2(A) of Section 14 also provides that every order made by the District Forum under sub-section (1) shall be signed by its President and the member or the members who conducted the proceeding. 8. However, these provisions by itself cannot be imported and made applicable to the functions of the State Commission and this is clear from Section 18 itself, which provides that the applicability of sections 12, 13 and 14 shall be subject to such modifications as may be necessary. Understanding Sections 16 and 18, in the light of Sections 12, 13 and 14, I am of the considered opinion that a bench of the State Commission can be constituted by a single member of the Commission. W.P.(C) No.18789 of 2008 - 5 - 9. Finally it was contended that in view of the judgment of this Court in FON-ESS-INDIA (P) LIMITED v. KERALA STATE DISPUTES REDRESSAL COMMISSION [2006(3) KLT 500], the Commission ought to have considered the maintainability of the case. 10. According to the learned counsel for the petitioner, in this case, the maintainability was scheduled to be heard after pleadings were completed and therefore, the procedure adopted was illegal. I am not persuaded to agree with the counsel. A reading of Exhibit P1 judgment shows that the State Commission wanted to decide on the question of the maintainability before deciding on the merits of the case. There is nothing wrong in the procedure adopted. In any case, if the petitioner had any objection, he should have raised this objection in time before the Commission itself. I am not persuaded to consider the contentions belatedly raised. W.P.(C) No.18789 of 2008 - 6 - Therefore, I do not find any merit in the contentions raised by the petitioner. The writ petition fails and the same is accordingly dismissed. ANTONY DOMINIC, JUDGE skr