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, the case of Yogendra Builders & Anr. v. Vidya Paradise Owners’ Welfare Association & And, may be referred to, where, the Single Judge of the High Court of Andhra Pradesh had observed that, the Consumer Commissions lack the power to issue a commission for any other purpose than what is provided under Section 13(4)(v) of the Consumer Protection, 1986. However, it was also observed that if the consumer forums deem necessary to appoint an expert, specialist, skilled person or any other person of a like 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 findings of the single Judge in Yogendra Builders & Anr (Supra), have been partly upheld. The further observations that Consumer Forums may, at its discretion issue a commission for any other purpose, than what is provided under Section 13(4)(v), have been not been accepted. Therefore, the Judgment in the case of M/s. Shivshakti Builders, is considered binding over the Single Judge Bench Ruling.

Very recently, the Kerala High Court, in P and N Ceramics & Ors. v. Issac Sebastian refused to accept the “strict interpretation” of the Division Bench (Andhra Pradesh High Court) and observed that even though there is no specific provision under the Act to appoint a Commission for local inspection, however, considering the object of the Act in providing a summary mechanism for timely disposal of matters, a Consumer Commission is not precluded from exercising that power (which is incidental).........Read more

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