compensate a consumer for injustice suffered by him

Law settled by the Supreme Court in Lucknow Development Authority V/s. M.K. Gupta AIR 1994 SC 787 mandates that in case of misconduct by the Judge, the damages has to be recovered from the said Judge personally. It is ruled as under: “Misconduct by Public Officer - Damages to be recovered from erring official -Misfeasance in public offices - Liability to pay damages - Can be fastened on erring official- Relief that can be granted - Not limited to award of value of goods or service - Compensation for harassment, mental agony or oppression suffered by consumer can also be awarded - Commission should direct recovery of the same from persons responsible for that.- When the Court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries. - (Paras 8, 11) 55 8[...] in Lala Bishambar Nath v. Agra Nagar Mahapalika, Agra [(1973) 1 SCC 788 : AIR 1973 SC 1289] . It was held that where the authorities could not have taken any action against the dealer and their order was invalid, ‘it is immaterial that the respondents had acted bona fide and in the interest of preservation of public health. Their motive may be good but their orders are illegal. They would accordingly be liable for any loss caused to the appellants by their action.’ The theoretical concept that King can do no wrong has been abandoned in England itself and the State is now held responsible for tortuous act of its servants. The First Law Commission constituted after coming into force of the Constitution on liability of the State in tort, observed that the old distinction between sovereign and non-sovereign functions should no longer be invoked to determine liability of the State. Friedmann observed: “It is now increasingly necessary to abandon the lingering fiction of a legally indivisible State, and of a feudal conception of the Crown, and to substitute for it the principle of legal liability where the State, either directly or through incorporated public authorities, engages in activities of a commercial, industrial or managerial character. The proper test is not an impracticable distinction between governmental and non-governmental function, but the nature and form of the activity in question.” Even Kasturi Lal Ralia Ram Jain v. State of U.P. [AIR 1965 SC 1039 : (1965) 1 SCR 375 : (1966) 2 LLJ 583] did not provide any immunity for tortuous acts of public servants committed in discharge of statutory function if it was not 56 referable to sovereign power. Since house construction or for that matter any service hired by a consumer or facility availed by him is not a sovereign function of the State the ratio of Kasturi Lal [AIR 1965 SC 1039 : (1965) 1 SCR 375 : (1966) 2 LLJ 583] could not stand in way of the Commission awarding compensation. We respectfully agree with Mathew, J. in Shyam Sunder v. State of Rajasthan [(1974) 1 SCC 690] that it is not necessary, ‘to consider whether there is any rational dividing line between the so-called sovereign and proprietary or commercial functions for determining the liability of the State’ (SCC p. 695, para 20). In any case the law has always maintained that the public authorities who are entrusted with statutory function cannot act negligently. As far back as 1878 the law was succinctly explained in Geddis v. Proprietors of Bann Reservoir [(1878) 3 AC 430] thus: “I take it, without citing cases, that it is now thoroughly well established that no action will lie for doing that which the Legislature has authorised, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing what the Legislature has authorised, if it be done negligently.” Under our Constitution sovereignty vests in the people. Every limb of the constitutional machinery is obliged to be people oriented. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before authorities created under the statute like the commission or the courts entrusted with responsibility of 57 maintaining the rule of law. Each hierarchy in the Act is empowered to entertain a complaint by the consumer for value of the goods or services and compensation. The word ‘compensation’ is again of very wide connotation. It has not been defined in the Act. According to dictionary it means, ‘compensating or being compensated; thing given as recompense;’. In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Commission has been vested with the jurisdiction to award value of goods or services and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision in our opinion enables a consumer to claim and empowers the Commission to redress any injustice done to him. Any other construction would defeat the very purpose of the Act. The Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him.”