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 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
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 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 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 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.