Meghalaya

StateCommission

FA/07/2014

Shri. Jonathan Langri - Complainant(s)

Versus

M/S Lyndem Design and Others - Opp.Party(s)

Mr. S. Jindal

28 Nov 2014

ORDER

MEGHALAYA STATE CONSUMER DISPUTE REDRESSAL COMMISSION

SHILLONG

 

F.A. No. 7 of 2014

 

BEFORE

 

Hon’ble President: Mr. Justice P.K. Musahary (Retd.)

Hon’ble Senior Member: Mr. Ramesh Bawri

 

Shri Jonathan Iangri

Shillong                                                                                .......... Appellant

 

Versus

 

Lyndem Designs & Others

Shillong                                                                                ........... Respondents

 

For the Appellant                :           Shri S. Jindal, Advocate

For the Respondents        :           Shri D.K. Warjri, Advocate

Date of Judgment              :           29^th April 2015

Whether to be reported    :           Yes

 

JUDGMENT & ORDER

 

Per:  Mr. Ramesh Bawri, Senior Member: This appeal has been preferred by the Appellant against the Order dated 12.08.2014, passed by the learned District Consumer Disputes Redressal Forum, East Khasi Hills, Shillong, in Consumer Case No. 9 of 2014 (hereinafter called the Impugned Judgment). The Appellant was the Complainant before the said Forum and it is the contention of the Appellant before us that the Impugned Judgment is bad in law and facts.

 

2.         The brief facts leading to the filing of the present Appeal, as reflected in the impugned order, are that the Complainant / Appellant had placed a work order with OP No. 1 i.e. Lyndem Designs for construction of his residential house at Lum Wahat Mawpat, Shillong. OP 1 had summarized the cost of construction of the house and as per the Summary of the Costs dated 10.03.2011 provided by the OP 1 the total estimated cost for services to be provided by OP No. 1 towards construction of the residential house amounted to Rs. 39,49,098.69 p.

 

The Appellant paid an advance sum of Rs. 1,20,000 on 21.02.2011, Rs. 50,000 on 3.3.2011 and Rs. 7,80,000 on 11.3.2011 against the work and the same were duly accepted and acknowledged by the Proprietor (L) Aiban Lyndem on behalf of OP 1. It is the contention of the Appellant that inspite of receiving such a substantial amount of money, the Respondent No. 1 did not even commence, let alone complete, the work. Subsequently, on 25.05.2011, the Proprietor of Respondent No. 1, Late Aiban Lyndem, expired. Consequently, the work has remained unexecuted till date.

 

3.         After the death of the Proprietor of Respondent No. 1, the Appellant contacted the Respondent No. 2 in respect of the work which was still incomplete. The Respondent No. 2 was a business associate of the Proprietor of Respondent No. 1 and the Respondent No. 2 then assured the Appellant that the work would be started and completed soon. However, it appears that the Respondent No. 2 expressed an inability to do so on account of lack of funds and requested the Appellant for further payment. Therefore, the Appellant paid the Respondent No. 2 a sum of Rs. 2,00,000  in order to get the work completed. Annexure 6 of the Memo of Appeal clearly reflects the payment of Rs. 2,00,000. However, even after such assurance from Respondent No. 2 and even after the additional payment, the work was not started and / or completed.

 

4.         The Appellant caused the issuance of a legal notice dated 03.01.2014 on Respondents 1, 2 and 3. The said legal notice is at Annexure 7 of the Memo of Appeal. It was the contention of the Appellant in the said legal notice that Respondent No. 3, being the parent of the late Proprietor of Respondent No. 1, was now the legal heir of the late Proprietor and therefore also liable for the debts and liabilities standing against the deceased son. The Appellant therefore requested respondent No. 3 to return the money which the Appellant had paid to his son during his lifetime. Respondents 3, through his Counsel, replied to the said legal notice on 13.01.2014. It was the contention of Respondent 3 that he was not responsible for any liabilities in respect of Respondent No. 1 and, if at all, it was the Respondent No. 2 who was solely liable. The reply dated 13.01.2014 is at Annexure 8 of the Memo of Appeal. However, the said reply also reveals that after the death of the Proprietor, Late Aiban Lyndem, a succession certificate was obtained by Respondent No. 4, mother of Late Aiban Lyndem. The said succession certificate was in respect of the bank accounts standing in the name of the late Proprietor and it has been enclosed at Annexure 5 of the Memo of Appeal. The reply dated 13.01.2014 also brings out that Respondent No. 3, after the death of his son, had cleared a liability of Rs. 11,00,000, standing in the name of Respondent No. 1, with UCO Bank, Shillong. Besides, it is also admitted that Respondent No. 3 did succeed to and/or inherit the personal Bank account of the late Proprietor and other benefits from other sources.

 

5.         It is in the above factual background that the Appellant filed Consumer Case No.  9 of 2014 before the District Consumer Forum, Shillong. All of the above facts were pleaded in the Complaint Petition which was filed. It appears that Respondents 2, 3 and 4 entered appearance before the Learned Forum. Respondent No.2 chose not to contest the matter on merits but acknowledged the fact that she had been paid an advance of Rs. 2,00,000 by the Appellant and that the work still remained incomplete. Nevertheless, Respondent No. 2 contended that her liability is restricted to Rs. 2,00,000 since she had not taken the Rs. 9,50,000 which had earlier been paid by the Appellant to the late Proprietor of Respondent No. 1.  Respondent No. 2 sought some time to make the required payment of Rs. 2,00,000 before the Learned Forum and the Appellant had conceded to this.

 

6.         On the other hand, the Respondent Nos. 3 and 4 filed a showcause against the Complaint Petition and chose to contest the matter on merits. It was the contention of Respondents 3 and 4 that the liability, if any, lay with Respondent No. 2 and that they were not responsible for any liabilities of Respondent No.1. Respondents 3 and 4 based this stand on the contention that they were alien to the work of Respondent No. 1, nor were they partners of Respondent No. 1 and they did not acquire Respondent No. 1 or derive any benefits out of it after the demise of the Proprietor. Significantly, however, Respondents 3 and 4 did admit that they are liable for the liabilities of their late son in matters where they were signatories and had know how of the complete transactions.

 

7.         The matter proceeded before the Learned Forum and hearing was conducted by the parties. Subsequently, the Learned Forum passed the Impugned Judgment dated 12.08.2014 and it is this Impugned Judgment that the Appellant has challenged before this Commission. The operative portion of the Judgment is contained at page 5 thereof and it is worth reproducing the same here verbatim:

 

DECISION OF THE FORUM

After going through the records and submission made by parties, this Forum observes and decides as follows:

 

1. OP No. 1 i.e. Lyndem Designs was a sole proprietor firm, the Proprietor of which is Late Aiban Lyndem who expired on 25.05.2011. This fact has been accepted by the Complainant in his petition also. There is nothing on record to prove that it was taken over the proprietorship of the OP 1 i.e. Lyndem Designs.

 

2. OP No. 2 took a total amount of Rs. 5 lakhs from the Complainant to complete some pending works in her own personal capacity and not as the partner of the OP 1 i.e. Lyndem Designs as it is very clear that OP 1 was a sole proprietorship firm.

 

3. OP 2 has already returned Rs. 3 lakhs out of that amount to the Complainant and hence submitted before this Forum that she would be returning the balance amount of Rs. 2 lakhs to the Complainant by 28.08.2014 by which Complainant has agreed without any further cause of action against OP 2.

 

4. The main issue here is whether OP 3 and 4, that is, parents of the sole proprietor of OP 1 would succeed OP 1, meaning thereby whether they would be liable for the payments etc to be paid by OP 1 to the Complainant within the ambit of Consumer Protection Act, 1986.

 

5. We are of the opinion that the difference between consumer and service provider relationship as envisaged in Consumer Protection Act 1986, vis-a-vis the factum of partnership as governed by the provision by the Indian Partnership Act, 1932 whereby as per Order XXX Rule 1 of CPC, the partner of partnership firm are enable to sue or to be sued in the name of the firm.

 

6. Under the Consumer Protection Act, 1986 Section 2 (b)(5) clearly defined for the service provider meaning thereby, if the service provider was a single person running the sole proprietary firm, the parents of that service provider cannot term as service provider. In the instant case OP 3 & 4 never participate in any of the business carried on by their son and therefore cannot be treated as the successor of the business of the sole proprietor firm running by their son under the ambit of Consumer Protection Act, 1986.

 

We therefore decide that there is no sufficient ground of the Complainant to implicate OP 3 & 4 under the Consumer Protection Act, 1986 to recover the amount due of the late proprietor of OP1. We therefore dispose off this case by giving direction to OP 2 to pay an amount of Rs 2 lakhs to the complainant by 28.08.2014 and decide that Complainant has no cause of action against OP 3 and 4 under Consumer Protection Act, 1986. The Complainant is however free to seek remedy under any other law or under any appropriate authority.

 

Case disposed off accordingly.

 

8.         We have perused the Memo of Appeal and the case records and heard the various submissions extended by the parties and have given our anxious consideration to the same. It is apparent that the limited issue involved in the present appeal is Whether a consumer, under the Consumer Protection Act, 1986 (hereinafter the C.P. Act or the Act) has a right to initiate proceedings against the legal heirs / representatives of a deceased sole proprietor of a concern in respect of any defect or deficiency of any goods or services provided / to have been provided by the deceased sole proprietor  

 

9.         The Appellant has vehemently contended before us that the Impugned Judgment is wrong both in law and in facts and that it has been illegally de-suited causing him immense hardship and injustice. It is contention of the Appellant that having agreed and having found that OP No. 1 was a sole proprietorship firm, the Learned Forum could not have held that the legal heirs of the sole proprietor (Respondents 3 and 4) are not liable for the debts and liabilities of the deceased sole proprietor. On the other hand, the Respondents 3 and 4 have argued that there is no infirmity in the Impugned Judgment and that the Learned Forum was right in having concluded that the Appellant/Complainant did not have any right to proceed against the parents of the deceased sole proprietor, particularly because they neither took any part in the business of OP No. 1 nor were they its beneficiaries.

 

10.       At the outset we must candidly confess that, despite our best efforts, we have been utterly unable to truly comprehend or decipher the actual reasoning adopted by the learned Forum as contained in its decision quoted above. As we shall see later, it appears to us that the learned Forum failed to notice and/or comprehend the true import of the various connected provisions of law, particularly Section 2 (1)(b)(v) of the C.P. Act; Section 2 (11) of the CPC; Order XXX Rules 1 and 10 of the CPC; Indian Partnership Act, 1932 & Section 37 of the Contract Act, 1872 and it is for this reason that it passed the order that it did. Moreover, although an extremely relevant judgment of the Hon’ble Supreme Court (AIR 1999 SC 1484) was admittedly cited before it by the learned Counsel for the Appellant, the learned Forum has not even noticed or discussed it, let alone apply it, or else the result of its own order might have been quite different. We shall, however, attempt to find the right answer to the question raised in this Appeal.

 

11.       Unfortunately, the answer to the above question in not to be directly found in the Consumer Protection Act itself, or else the answer would have been easy to find. Useful reference may therefore be made to the provisions of various other laws and legal precedents in order to settle the issue. To start with, we shall refer to Section 37 of the Contract Act, 1872, which has been pressed into service by the Appellant’s learned counsel. Section 37 states as under:

 

Obligation of parties to contract: The parties to a contract must either perform, or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other law.

Promises bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract.

 

12.       In Ram Baran Prasad Vs. Ram Mohit Hazra & Others (AIR 1967 SC 744) while dealing with Section 37 of the Contract Act, the Hon'ble Apex Court held that In substance these statutory provisions lay down that, subject to certain exceptions which are not material in this case, a contract in the absence of a contrary intention express or implied will be enforceable by and against the parties and their legal heirs and legal representatives including assignees and transferees.

 

13.       It may also be mentioned here that it is well established that the Contract Act applies to proceedings before the Consumer Fora. If any authority is needed, we may cite Marine Container Services South Pvt Ltd. vs Go Go Garments (AIR 1999 SC 80) where, in para 4, the Honble Supreme Court of India unequivocally held that We are not a little surprised to read that the Contract Act does not apply to complaints filed under the Consumer Protection Act. The Contract Act applies to all the litigants before the Commission under the Consumer Protection Act included.

 

14.       Perusal of section 37 of the Contract Act and the judgments above clearly shows that the legal heirs and representatives of a deceased promisor are bound by the promise made by the deceased promisor, unless a contrary contention appears from the contract. That being the case, the subsequent questions that arise are (a) The true import of the terms legal heirs, legal representatives and representatives and (b) Whether Respondents 3 and 4 are or can be said to be the legal heirs, legal representatives or representatives of the late proprietor.

 

15.       The answers to the above questions again do not seem to lie in the Consumer Protection Act, 1986 itself. The Act does not define who is a legal heir, legal representative or representative but the definition of the term legal representative is no doubt contained in Section 2 (11) of the Code of Civil Procedure, 1908 which defines legal representative as a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

 

16.       It will, therefore, be immediately seen that the term legal representative means not only a person who in law represents the estate of a deceased person but also includes any person who intermeddles with the estate of the deceased. There can also be no manner of doubt that the definition of legal representative as given in Section 2(11) of the CPC is an inclusive definition as held by the Supreme Court in Custodian of Branches of BANCO National Ultramarino vs Nalini Bai Naique (AIR 1989 SC 1589) in the following words. Legal representative means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression legal representative.

 

This proposition has been further reiterated by the Honble Supreme Court in Chiranjilal Shrilal Goenka Vs. Jasjit Singh and others [(1993) 2 SCC 507] wherein the Supreme Court held that term legal representative is almost always held to be synonymous with the term personal representative. It was further observed as follows: Mulla on CPC 14th Ed., Vol. I at P.27 stated that a person on whom the estate of the deceased devolves would be his legal representative even if he is not in actual possession of the estate. It includes heirs and also persons who without title either as executors, administrators were in possession of the estate of the deceased. It is, therefore, clear that the term legal representative is wide and inclusive of not only the heirs but also intermeddlers of the estate of the deceased as well as a person who in law represents the estate of the deceased. It is not necessarily confined to heirs alone.

 

17.       Even if we were to assume for a minute that the said definition of legal representative would not, in terms, apply to a case before the Consumer Fora it has to be stated that even in ordinary parlance the said expression is understood almost in the same way in which it is defined in CPC. Whether that definition can govern the Consumer Protection Act or not, it is surely a guide towards its proper interpretation. A legal representative, even ordinarily, means a person who in law represents the estate of a deceased person or a person on whom the estate devolves on the death of an individual. This is plain enough and is not controvertible. The heir of the deceased in possession of the estate is a legal representative whether under the definition in the Civil Procedure Code or in its popular sense.

 

18.       Having understood the width and reach of the term legal representative it will be necessary to delve into such representatives rights and responsibilities for which it will be interesting and pertinent to note the provisions of the lesser known Legal Representatives Suits Act, 1855, section 1 whereof reads as follows and is in our view of universal application, including proceedings under the C.P. Act, inasmuch as it speaks of an action being maintained :

 

1. Executors may sue and be sued in certain cases for wrongs committed in lifetime of deceased. An action may be maintained by the executors, administrators or representatives of any person deceased, for any wrong committed in the lifetime of such person, which has occasioned pecuniary loss to his estate, for which wrong an action might have been maintained by such person, so as such wrong shall have been committed within one year before his death; and the damages, when recovered, shall be part of the personal estate of such person;

 

and further, an action may be maintained against the executors or administrators or heirs or representatives of any person deceased for any wrong committed by him in his lifetime for which he would have been subject to an action, so as such wrong shall have been committed within one year before such persons death; and the damages to be recovered in such action shall, if recovered against an executor or administrator bound to administer according to the English law, be payable in like order of administration as the simple contract debts of such person.

 

19.       The appropriate question which we would now need to turn to is whether Respondents 3 and 4 would qualify as the legal representatives of Respondent 1, seen in the light of the legal position discussed above. The Appellant would have us believe that they do qualify, whereas the Respondents have contended otherwise. Learned counsel for the Appellant has drawn our attention to the Judgment rendered by the Honble Apex Court in the case of Ashok Transport Agency vs. Awadhesh Kumar, reported in AIR 1999 SC 1484 which was a case in which the Proprietor of a Sole Proprietorship concern had died before institution of the suit. The Hon’ble Apex Court has settled the law unequivocally in this regard vide paragraph 6 of the judgment in the following words:

 

6. A partnership firm differs from a proprietary concern owned by an individual. A partnership is governed by the provisions of the Indian Partnership Act, 1932. Though a partnership is not a juristic person but Order XXX Rule 1 CPC enables the partners of a partnership firm to sue or to be sued in the name of the firm. A proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against a proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business. The provisions of Rule 10 of Order XXX which make applicable the provisions of Order XXX to a proprietary concern, enable the proprietor of a proprietary business to be sued in the business names of his proprietary concern. The real party who is being sued is the proprietor of the said business.

 

Para 7 of the said judgment is further illuminative of the issue wherein the Honble Court has observed that:

 

In the present case A.C. Basu, Proprietor of Ashok Transport Agency, had died before the institution of the suit and on the date of the institution of the suit, the proprietary concern was not in existence. Only the legal representatives of A.C. Basu could be sued with regard to any cause of action arising against A.C. Basu in connection with the proprietary business.

 

20.       Ashok Transport (supra) was reiterated in Raghu Lakshminarayanan vs M/s Fine Tubes (AIR 2007 SC 1634) and it was further held that it is trite that a proprietary concern would not answer the description of either a Company incorporated under the Indian Companies Act or a firm within the meaning of the provisions of the Section 4 of the Indian Partnership Act. and that The distinction between partnership firm and a proprietary concern is well known. It is evident from Order XXX Rule 1 and Order XXX Rule 10 of the Code of Civil Procedure.

 

Again in M/s Bhagawati Vanaspati Traders vs Senior Superintendent of Post Offices, Meerut (AIR 2015 SC 901) the Honble Supreme Court held that in a sole proprietorship concern an individual uses a fictional trade name, in place of his own name. Thus a suit against a sole proprietary concern is a suit against the proprietor of the business and the sole proprietary concern is to be treated as an Individual and the name of such a concern can even be substituted with the name of the Sole Proprietor.

 

It will immediately clear from these judgments that the Highest Court of the land has held in the clearest of terms that in the event of the death of the proprietor of a proprietary concern, the legal representatives of the proprietor can be sued in respect of the dealings of the proprietary business.

 

21.       Incidentally, here we may also refer with advantage to the following passage from Salmonds Jurisprudence (12th Edn.) Page 443, which reads as follows:

The rights which a dead man thus leaves behind him vest in his representative. They pass to some person whom the dead man, or the law on his behalf, has appointed to represent him in the world of the living. This representative bears the person of the deceased, and therefore has vested in him all the inheritable rights, and has imposed upon him all the inheritable liabilities of the deceased. Speaking of the rights and liabilities of the representatives of deceased persons, Salmond also observes Just as many of a mans rights survive him, so also do many of his liabilities; and these inheritable obligations pass to his representative, and must be satisfied by him.

 

22.       In the case before us, the issue is similar to the Ashok Transport case (supra), inasmuch as it is a case concerning a proprietary concern and the legal representatives of the deceased proprietor. The proprietor here too had died before the institution of the proceedings before the District Forum and, on the date of institution of the proceedings, the proprietary concern was not in existence. It is also the admitted position that Lyndem Designs is a Sole Proprietorship concern of which late Aiban Lyndem was the Sole Proprietor and that the proprietor had expired leaving behind only Respondent Nos. 3 and 4 as his legal heirs. That being the case, and in view of the above discussion, including the elucidation of the law conducted by the Hon’ble Apex Court, we have no hesitation in holding that the Respondent Nos. 3 and 4 are the legal heirs of the late Proprietor and, in that capacity, are liable for the outstanding obligations etc of the late Proprietor. Regrettably, we cannot bring ourselves to agree with the contention of the Respondents 3 and 4 that not having participated in the business of their deceased son, they cannot now be held accountable in any manner. The legal position described above does not make participation in the business a precondition to being held liable and, in any event, by their own admission, the Respondents had cleared off a previous liability owed by their deceased son to UCO Bank. Even if this was, as has been contended, on account of a mortgage having been created over the house of the Respondents to secure a business loan taken by the deceased, this fact in itself would indicate participation and/or intermeddling of the Respondents in the business of the deceased son, thereby rendering them liable as representatives of the late Aiban Lyndem. However, this discussion is trite since, as we have observed, participation or nonparticipation in the business cannot be a yardstick to determine whether any cause of action has arisen against the legal representatives of a deceased proprietor. The legal position could not be clearer that after the death of a proprietor, the legal representatives of the late Proprietor can be sued with respect to any cause of action that has arisen in connection with the proprietary business. In the present case, the Respondent Nos. 3 and 4 can be sued in respect of the cause of action which has very clearly arisen in respect of the proprietary concern of their deceased son. We cannot also overlook the very pertinent fact that Respondent 4 had admittedly obtained a Succession Certificate in respect of the late Proprietors movable properties and that Respondents 3 and 4 have admitted in their showcause filed before the learned Forum that they are liable at least in respect of the liabilities of their late son in matters where they are signatories and have know how of the complete transactions. These admitted facts alone confirm their status as legal representatives of the late Proprietor of Respondent No. 1 and renders them liable to be proceeded against, in the light of the law discussed above.

 

23.       Before concluding, however, although we have already expressed that we have been unable to fully comprehend the reasoning adopted by the learned Forum in its impugned order, we have noticed certain observations therein, over which we deem it necessary to clear the air. For one, the learned Forum has completely misunderstood the provisions of Section 2 (1) (b) (v) of the C.P. Act which reads thus:

 

(b)       complainant means

            ...........

(v)        in case of death of a consumer, his legal heir or representative; who or which makes a complaint;

 

The Appellant had submitted before the learned Forum and also submits before us that, according to Section 2 (1) (b) (v) of the C.P. Act, when a consumer dies his legal heir or representative can become the Complainant before the consumer court. In other words, the legal heir or representative of a consumer can come before the court as a complainant on account of the death of the consumer. Therefore, according to the Appellants Counsel, it should also logically follow that when a service provider dies his legal heir or representative can be made to stand as opposite party before the consumer court. In other words, death of the service provider should not prevent the consumer from seeking relief from his legal heirs or representative, else the consumer will lose a valuable and efficacious right under the C.P. Act. There is force in this contention in view of the fact that sub clause (v) of clause (b) did not exist earlier and was inserted in subsection 1 of Section 2 of the C.P. Act, 1986 only in the year 2002 vide the Consumer Protection (Amendment) Act, 2002. Despite that, even prior to the insertion of the said subclause, the Honble National Commission had unequivocally held in several of its judgments that, although in the definition of the expression consumer, there are no express words indicating that his legal representative is also included within its scope, by operation of law, a legal representative gets clothed with the rights, status and personality of the deceased for the purpose of enforcing the cause of action which has devolved on him under the Act. For example, see Louie and Anr. vs Kannolil Pathumma and Anr decided on 16.11.1992.

 

Similarly, although there are, as yet, no express words in the Act indicating that the legal heir / representative of the trader or service provider is also included within its scope, it stands to reason that this too would hold true as a corollary of the judgments of the Honble National Commission and that in such a case, by operation of law, a legal representative of the legal heir / representative of the trader or service provider too would get imposed with the responsibilities and liabilities of the deceased for the purposes of the Act. Perhaps the Legislature will, in due course, consider and think it fit to amend the Act appropriately to take the issue beyond controversy. However, until then, we have had to take the help of the existing law and legal precedents in order to decide the matter presently before us.

 

24.       In our opinion, it is consistent with the object and scheme of the Act and conducive for the achievement and promotion of the legislative purpose underlying the statute to give an extended meaning to the expression service provider used in the Act so as to include legal representatives of deceased service providers. Unless such a broad and pragmatic view is taken, the result that would follow is that, even in a case of gross negligence or deficiency in the performance of service arising from the death of the deceased, a Complainant will be left without any remedy under the Act for the redressal of his grievance arising out of the said deficiency. We cannot believe that such an anomalous situation was intended by Parliament. We therefore have to apply the well established principle of interpretation that the provisions of a social welfare legislation are to be liberally construed so as to suppress the mischief and advance the remedy.

 

In this view of the matter too we, therefore, cannot but hold that Respondents 3 & 4 who are the parents and legal representatives of the deceased can be proceeded against under the Act to enforce the cause of action against the deceased in respect of which the right to seek legal remedies has survived and become part of his estate since, in the eye of law, they stand in the shoes of the deceased as his representatives.

 

25.       The learned Forum also appears to have confused itself regarding the provisions of the Indian Partnership Act, 1932 and Order XXX Rule 1, CPC. The Indian Partnership Act obviously has no application to the instant case. Similarly, bare reading of Order XXX Rule 1, CPC which reads as follows will show that it only applies to partnership firms and not to proprietary concerns:

 

Suing of partners in name of firm

(1) Any two or more persons claiming or being liable as partners and carrying on business, in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.

 

(2) Where persons sue or are sued partners in the name of their firm under sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice such pleading or other document is signed, verified or certified by any one of such persons.

 

This confusion would not have occurred had it reflected upon the clear enunciation of law made in Ashok Transport (supra) wherein it has been made amply clear that a partnership firm differs from a proprietary concern owned by an individual. A partnership is governed by the provisions of the Indian Partnership Act, 1932 and Order XXX Rule 1, CPC enables the partners of a partnership firm to sue or to be sued in the name of the firm whereas a proprietary concern is only the business name in which the proprietor of the business carries on the business and in the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business. It is the provisions of Rule 10 of Order XXX, CPC which enable the proprietor of a proprietary business to be sued in the business names of his proprietary concern. Rule 10 of Order XXX, CPC is reproduced below for the sake of further clarity:

 

Suit against person carrying on business in name other than his own  Any person carrying on business in a name or style other than his own name, or a Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of such case permits, all rules under this Order shall apply accordingly.

 

26.       The learned Forum has further made a passing reference in its order observing that this case looks like a money suit and has, in its conclusion, granted liberty to the Appellant to seek remedy under any other law or under any appropriate authority from which we reasonably deduce that it has perhaps referred to a money suit being filed by the Appellant. In this regard we would like to observe that if the grievance of the Complainant is fit to be taken up as a money suit in a civil court, then, in the facts and circumstances of the case, there is nothing to preclude it from being taken up in a consumer court. It bears mention that it has been held in Patel Roadways Ltd. vs Birla Yamaha Ltd. (AIR 2000 SC 1461)  that a suit is a generic term and that a  proceeding before the Consumer Fora comes within the term suit. This judgment has been approved by a Constitution Bench of the Supreme Court in Economic Transport Organisation vs M/S Charan Spinning Mills (P) Ltd. [2010 (4) SC 114].

 

27.       Lastly, we must also bear in mind the 3-Judge Bench decision of the Honble Supreme Court rendered in the case of Kishori Lal vs. Chairman, E.S.I. Corporation reported in AIR 2007 SC 1819 where it has held that the jurisdiction of a Consumer Forum should not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter. Reference may be made to paragraph 17 of the said judgment where the law has been enunciated in the following terms

 

17. It has been held in numerous cases of this Court that the jurisdiction of a Consumer Forum has to be construed liberally so as to bring many cases under it for their speedy disposal. In Spring Meadows Hospital v. Harjol Ahluwalia and Another, AIR 1998 SC 1801, it was held that the CP Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act being a beneficial legislation should receive a liberal construction. In State of Karnataka v. Vishwabharathi House Building Coop. Society AIR 2003 SC 1043, the Court speaking on the jurisdiction of the Consumer Fora held that the provisions of the said Act are required to be interpreted as broadly as possible and the fora under the CP Act have jurisdiction to entertain a complaint despite the fact that other fora/courts would also have jurisdiction to adjudicate upon the lis. These judgments have been cited with approval in paras 16 and 17 of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha and Others, (2004) 1 SCC 305. The trend of the decisions of this Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.

 

28.       In summation, and as an answer to the question we had raised earlier, we hold that a consumer, under the Consumer Protection Act 1986, has a right to initiate proceedings against the legal heirs / representatives of a deceased sole proprietor in respect of any defect or deficiency of any goods or services provided / to have been provided by the deceased sole proprietor. Therefore, we set aside the Impugned Judgment to the extent that it has held that the Complainant (Appellant herein) has no cause of action to have filed the consumer complaint against the Respondent Nos. 3 and 4 and that he has no sufficient ground to implicate them under the Consumer Protection Act, 1986 to recover the amount due from the late proprietor of OP No. 1.

 

29.       Learned Counsel for the Appellant has contended before us that no purpose will be served by remanding the matter back to the District Forum since there can be no dispute about the facts, which are that the late Proprietor had taken an advance payment of Rs 9,50,000 but had neither made good on his promise to design/construct the house of the Appellant nor had he refunded the money. He therefore prays that the matter may be decided by us on merits too. However, we are of the considered view that it would be in the interests of justice to remand the matter to the learned District Forum to decide the Complaint on merits, keeping in mind our decision and observations above, which we hereby do. As the Complaint was filed as far back as on 27.3.2014, the learned District Forum shall dispose of the same after hearing the parties, within 3 (three) months hereof. It may be pointed out here that vide order dated 14.11.2014 passed by this Commission the name of Respondent No. 1 has been struck off from the array of parties. The Appellant has also stated before this Commission that Respondent No. 2 has already discharged her liability and the Appellant has no more grievance against her. As such, the Complaint shall proceed only against Respondent Nos. 3 & 4 herein.

 

30.       The Appeal stands disposed of accordingly. Return the case records to the learned District Forum, East Khasi Hills District forthwith along with a copy of this order and judgment. Let copies be also sent to all learned District Fora of Meghalaya. No order as to costs.

 

 

                        SENIOR MEMBER                                                  PRESIDENT