Introduction & Background
The Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in a landmark decision admitted a Consumer Complaint titled, Akshay Kumar & Ors v Adani Bhrama Synergy Pvt Ltd. CC/48/2021 under section 35(1)(a) of the Consumer Protect Act, 2019, which was originally filed under section 35(1)(c) of the said Act, and upheld the maintainability of Joint Complaints by following the observations laid down by the Hon’ble Supreme Court in Brigade Enterprises Ltd. v Anil Kumar Virmani & Ors. (2022) 4 SCC 138 and has relieved the aggrieved and bona fide consumers by strengthening and reinforcing the legislative intent and objective of the Act against procedural and technical norms. The Hon’ble Commission while adjudicating this crucial and significant aspect has dealt with some paramount and fundamental questions of law which prior to this decision had considerable interpretations. The issues addressed in this landmark decision revolves around the questions of admissibility and maintainability of class action and jointly filed Complaints. The Hon’ble Commission has prudently analysed whether the permission to file a Complaint under section 35(1)(c) of the Consumer Protection Act, 2019 should be granted or not, if not, then whether a joint complaint be permissible in terms of the order passed by the Hon’ble Supreme Court in Brigade Enterprises Ltd. v Anil Kumar Virmani & Ors. (2022) 4 SCC 138, wherein, the Hon’ble Supreme Court has judiciously observed that there may be cases where only “few consumers” and not “numerous consumers” have the same interests, then in that case, the complainants can jointly file a complaint for redressal of their grievances under section 35(1)(a) of the Act. Most importantly, the Commission has dealt with the question of pecuniary jurisdiction by emphasising upon whether each of the persons approaching the Hon’ble Commission for redressal of their grievances against deficiency in services in a collective capacity should fulfil the pecuniary requirement of paid-up amount being Rs. 2 Crore or more, as mandated under Section 58, read with Rule 5 of the Consumer Protection Act, 2019. The provisions of the Consumer Protection Act are in addition to and not in derogation of the provisions of any other law by virtue of Section 100 of the Act.
Issues & Contentions
The issues related to the admissibility and maintainability of class action and jointly filed complaints were the bone of contention in the Consumer Complaint titled, Akshay Kumar & Ors. v Adani Bhrama Synergy Pvt Ltd. CC/48/2021 and in other similarly situated and connected matters as well, which were subsequently referred by a Single Bench to a Larger Bench vide order dated 06.07.2022 for proper adjudication. The Hon’ble Commission has chronologically dealt with all the contentions. While adjudicating the first issue i.e., whether permission to file a complaint under Section 35(1)(c) be granted or not, the Hon’ble Commission has relied upon and reiterated the observations of the landmark judgments of the Hon’ble Supreme Court in Brigade Enterprises Ltd. v Anil Kumar Virmani & Ors. (2022) 4 SCC 138 and of the Hon’ble National Consumer Disputes Redressal Commission in Amberish Kumar Shukla & Ors. v Ferrous Infrastructure Pvt Ltd. CC/97/2016 to elucidate clarity upon the aspect. The Hon’ble Supreme Court while addressing the first issue observed that for the admissibility of a complaint under the category of ‘class-action’ there should be at least one Allottee from each tower of the Project in the Complaint or the averments in the pleadings of the Complaint should mention the complaint being in a ‘representative capacity’ on behalf of similarly situated complainants where there is sameness of interests. The fulfilment of at least one of the two conditions was mandated by the Hon’ble Supreme Court. It was also submitted that where only “few consumers” and not “numerous consumers” have the same interests then there is no restriction in treating the said complaint under the class of ‘Joint Complaint’ under Section 35(1)(a) of the Consumer Protection Act, 2019. Interestingly enough, a complaint filed under section 35(1)(c) could either be “on behalf of” or “for the benefit of” all the consumers having the same interests. Furthermore, Section 38(11) of the Consumer Protection Act, 2019 makes the provisions of Order 1 Rule 8 of the First Schedule of the Civil Procedure Code, 1908, applicable to only those cases where the complainant is a consumer as referred under Section 2(5)(v) which explicitly defines a “complainant” to mean one more than one consumer, where there are numerous consumers having the same interests. The explanation of Order 1 Rule 8 is of great significance as it distinguishes persons having the same interests in one suit from persons having the same cause of action. To establish sameness of interests, it is certainly not required or mandated to establish the sameness of cause of action. The Explanation under Order 1 Rule 8, is a necessary concomitant of the provisions of Rules 1 and 3 of Order 1. Order 1 Rule 1 of CPC, allows many persons to join in one suit as plaintiffs whereas, Order 1 Rule 3 allows many persons to be joined in one suit as defendants. But to fall under Order 1 Rule 1 or Order 1 Rule 3 category, the right to relief should arise out of or be in respect of the same act or transaction allegedly existing in such persons, jointly, severally or in the alternative. To some extent, Rules 1 and 3 of Order 1 are founded upon the sameness of the cause of action. This is why the Explanation under Order 1 Rule 8 distinguishes sameness of interest from the sameness of the cause of action. Since “sameness of interest” is the pre-requisite and a procedural mandate for an application under Order 1 Rule 8, CPC read with Section 35(1)(c) of the Consumer Protection Act, 2019, it was necessary for the complainants to include in the consumer complaint, sufficient averments that would show sameness of interest. As far as the first issue is concerned it has been clear by the Hon’ble Commission that the pleadings and the relief sought are to be considered.
Moving ahead with the second issue, i.e., whether a joint complaint will be permissible in case the permission to file a class action complaint is rejected by the Hon’ble Commission in the light of the observations laid down by the Hon’ble Supreme Court in Brigade Enterprises Ltd. v Anil Kumar Virmani & Ors. (2022) 4 SCC 138. The Hon’ble National Commission has analysed the contention and has iterated that once the application filed under Section 35(1)(c) of the Consumer Protection Act, 2019 stands to be rejected then in that case the complaint is also liable to be dismissed unless those complainants fall under the definition of “Complainant”. It is pertinent to observe that there is no obligation upon the class of consumers who decide to jointly come together for redressal of their grievances to only be placed under the scope of Section 35(1)(c ) of the CPA, 2019 and take recourse of Order 1 Rule 8 CPC. In cases where only a “few consumer” and not “numerous consumers” have the same interest the consumers can be suited under the ambit of Section 35(1)(a) of the CPA,2019. There is absolutely no bar in the act that prohibits these consumers from joining together and filing a Joint Complaint. A Joint complaint stands in contrast to the complaint filed in a representative capacity. It is true that a careful reading of the section 2(5)(i) uses the expression “a consumer”. If the vowel “a” and the word “consumer” appearing in Section 2 (5)(i) are to be understood to exclude more than one person, it will result in a disastrous consequence while reading section 2(5)(vi) of the said Act. To clarify the ambiguity of the statute while interpreting a few parts of the definition section the General Clauses Act, 1897, can be read together with the Act. Under Section 13(2) of the General Clauses Act, 1897 it is made abundantly clear that the words that are defined in singular capacity shall include the plural and vice versa in all Central Acts and Regulations unless there is anything explicitly repugnant in the subject or content. We cannot read anything repugnant in the subject or context of Section 2(5) or Section 35(1)(c) or 38(11) of the Consumer Protection Act, 2019 to conclude that the word in “consumer” shall include numerous consumers together. The Hon’ble National Commission while adjudicating upon the second issue concluded that there is no sameness of interest and by placing reliance upon the principle laid down by the Hon’ble Supreme Court in Brigade Enterprises (supra), the permission to file a complaint in a representative capacity under section 35(1)(c ) was rejected yet all the complainants were given permission to file a joint complaint under Section 35(1)(a).
The third and the most contentious issue i.e., whether each of the Complainants have to pay the consideration of more than ₹2 Crore or not, so that the Hon’ble Commission can entertain their Complaints was addressed with a detailed rational by the Hon’ble Commission.
Reiterating the observations of the Hon’ble Supreme Court in Brigade Enterprises (supra) read with the observations of a Three-Member Bench of the Hon’ble National Commission in the case of Amberish Kumar Shukla & 21 Ors. v Ferrous Infrastructure Pvt. Ltd. I 2017 CPJ 1 (NC) which was affirmed by the Five-Member Bench of the Hon’ble National Commission vide Order dated 26.10.2021 passed in CC No. 1703 of 2018, Renu Singh vs. Experion Developers Private Limited and other connected matters, the Hon’ble National Commission held that as there has been no bar for the complainants to proceed jointly for filing a consumer complaint and furthermore pursuant to the inclusion of several complainants within the definition of Section 2(5)(v) of the CPA, 2019 it can be concluded that in Consumer Protection Act, 1986, the value of goods or services and compensation claimed was to be taken for determining the pecuniary jurisdiction of the Consumer Fora but the Principle laid down by the Larger Bench in the case of Ambrish Kumar Shukla (supra), would also be applicable for determining the value of goods and services paid as consideration in the Complaint where the Complaint has been filed as a Joint-Complaint by more than one person and as in the present case as the value of consideration paid by all the complainants is more than Rs. 2 Crore, therefore the pre-requisite of the paid-up amount being met permits the National Consumer Forum to entertain the Complaint without any question of maintainability.
Conclusion
On a close reading of the rational observations laid down by the Hon’ble NCDRC in Akshay Kumar & Ors v Adani Bhrama Synergy Pvt Ltd. CC/48/2021 and other connected matters read with the law laid down by the Hon’ble Supreme Court in Brigade Enterprises Ltd.
v Anil Kumar Virmani & Ors. (2022) 4 SCC 138 it can be concluded that the Hon’ble National Consumer Forum is determined to attain the objective behind the enactment of the said Act and is keeping the legislative intent of protecting and promoting the rights of the consumers at a priority by not dismissing the complaints on technical grounds without interpreting the statute rationally and judiciously for the advancement of the consumers against the mala fide practiced of the service providers.