The Supreme Court’s decision in Askari Hussain & Ors. v. Dinesh Kumar & Ors.1, delivered on 24th August 2026 by a Bench of Justice Dipankar Datta and Justice Sheel Nagu, decides a question of procedure that arises infrequently but, when it does arise, is capable of adding years to a proceeding. Where two members of a Bench of the National Consumer Disputes Redressal Commission differ in opinion and the matter is placed before a third member, how far may that third member go? Is he confined to answering the questions referred to him and returning the file to the Bench that made the reference, or may he proceed to decide the appeal himself? The answer given by the Court is narrow in its terms and considerably more generous in its effect, and it merits close attention from anyone who practises before the consumer commissions.
The occasion for the question was a complaint of medical negligence instituted in the year 2006. Two decades later, it has still not been finally decided. The State Commission allowed the complaint in 2012; the appeals filed against that order came to be heard by a Bench of the National Commission which divided in opinion in March 2021; the third member to whom the difference was referred gave his opinion in January 2024 and, in the same order, disposed of the appeals; the Allahabad High Court quashed that order in December 2024 on the ground that the third member had exceeded his jurisdiction; and the Supreme Court has now set aside the order of the High Court and remitted the proceeding for a fresh decision on merits. The complainants have not been paid, and the litigation is not at an end.
This article sets out the statutory scheme, the reasoning of the Court and the wider body of authority on references, and submits, with respect, that while the result reached is defensible, the reasoning employed leaves the law less certain than it found it. A narrower rule was available on the same facts, and would have produced the same outcome without unsettling a principle that had stood for four decades.
The Statutory Framework: Section 58(3) of the Consumer Protection Act, 2019
The jurisdiction, powers and authority of the National Commission are exercised by Benches constituted by the President, and a Bench may consist of one or more members, the senior-most member presiding.2 Where a Bench consists of two members, the possibility of deadlock is inherent in its composition, and the Act provides for it. Section 58(3) states that where the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority if there is a majority; but if the members are equally divided, they “shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it”. The proviso requires the President or the other member, as the case may be, to give his opinion on the point or points so referred within a period of two months from the date of the reference.3
Two features of this provision are worth marking at the outset, because the case turns on both. The first is the obligation cast on the divided Bench: it must state the point or points on which the members differ. This is not a formality. The reference derives its content from that statement, and the jurisdiction of the referee is measured by it. The second is what the sub-section says is decided by the majority. It is not the case that is decided; it is “such point or points”. The provision is silent as to who thereafter passes the operative order, and it is precisely in that silence that the present controversy arose.
The Factual Background: A Complaint of 2006 and a Reference of 2021
The appellants before the Supreme Court were the original complainants. There were three of them: a husband, his wife and a third complainant. The wife was the patient, and the allegation was one of improper treatment at a nursing home described in the record as “Surya Medical Centre”. The complaint was numbered Complaint No. 13 of 2006 and was instituted before the State Consumer Disputes Redressal Commission, Uttar Pradesh.
By its final order dated 4th December 2012, nearly six years after institution, the State Commission allowed the complaint and awarded compensation of Rs. 95 lakh together with interest at the rate of fifteen per cent. Appeals were carried to the National Commission in 2013, the first respondent before the Supreme Court having filed First Appeal No. 156 of 2013 and another opposite party having filed a companion appeal.
The appeals were heard by a Bench of two members of the National Commission, which delivered orders on 19th March 2021, eight years and three months after the appeals were filed. The two members did not agree. The presiding member allowed the appeal and dismissed the complaint altogether, holding, in substance, that the complainants had failed to establish their case. The companion member took a materially different view: he did not dismiss the complaint but modified the award, reducing the compensation to Rs. 93 lakh and altering the rate of interest. The difference between the two opinions was therefore not marginal. One member would have sent the complainants away with nothing; the other would have confirmed their entitlement, subject to a reduction.
A reference under Section 58(3) followed. The third member to whom the point was referred rendered his opinion on 9th January 2024. The interval between the difference of opinion and the opinion of the third member was thus two years and ten months, as against the statutory proviso of two months, a matter to which this article will return.
The third member disagreed with the presiding member and agreed with the companion member. Had he stopped there, no question would have arisen. He did not stop there. In the operative portion of his order he recorded that the appeals were “disposed off after concurring with the findings” of the companion member, and proceeded to work out the consequences in detail: he fixed the total compensation at Rs. 93 lakh, apportioned it between the three complainants, Rs. 23 lakh to the third complainant, Rs. 20 lakh to the first, and the balance of Rs. 50 lakh to the second complainant, the patient and directed that the sum payable to the patient be paid to her directly only if specialists at the Sanjay Gandhi Postgraduate Institute of Medical Sciences, Lucknow, certified that her condition had improved sufficiently for her to utilise the amount for her own welfare, failing which payment was to be made to a guardian of her choice or to her husband. He retained the rate of interest from the date of the order of the State Commission, awarded costs of Rs. 10,000, fixed a three-month period for payment and provided for interest at twelve per cent on any amount remaining unpaid beyond that period.
Whatever else may be said about that order, it is not the answer to a question. It is a judgment.
The Reference as Framed: Five Questions Instead of Points of Difference
The reason the Supreme Court gave for excusing the third member lies in the form of the reference, and it is necessary to set that out with some care.
The divided Bench did not state the points on which its members differed. What it did instead was to formulate five questions for the opinion of the third member. Reduced to their substance, they were: first, whether the complainant had led satisfactory documentary or oral evidence to link the appellant doctor in one of the appeals with “Surya Medical Centre”, where the complainant’s wife was allegedly admitted and then improperly treated; second, whether the complainant had led satisfactory documentary evidence to establish that his wife had at all been admitted to or operated upon at that centre; third, whether the Commission would be justified in drawing conclusions on the basis of oral explanations or circumstances narrated by the complainant which had not been referred to in the original complaint, so as to overcome the apparent handicap of a lack of satisfactory evidence; fourth, whether the relevant medical documents had been withheld from the complainant or whether he had, for satisfactory reasons, omitted to obtain them; and fifth, whether, in a proceeding of a summary nature, it would have been proper to accept the uncontroverted oral affidavit of the complainant’s family member on the premise that it had not been subjected to cross-examination.
These are not points of divergence between two colleagues who have agreed on everything else. They are the appeal. The second question asks whether the patient was ever treated at the hospital at all, that is to say, whether the complaint has any foundation. The fifth asks whether the only evidence that she was ought to have been believed. A member who answers those five questions has necessarily traversed the whole of the record, weighed the evidence and reached a conclusion on liability. Having done so, the difference between writing an opinion and writing a judgment is largely a difference of nomenclature.
That observation is the hinge of the Supreme Court’s reasoning, and it is, in my respectful view, correct as far as it goes.
The View Taken by the High Court
Aggrieved by the order of the third member, the first respondent invoked the supervisory jurisdiction of the High Court of Judicature at Allahabad under Article 227 of the Constitution. By order dated 11th December 2024, a learned Single Judge allowed the application. The High Court held that the order impugned had “gone in excess of the powers conferred on the referring member”, that there had been an improper exercise of jurisdiction by the member to whom the question had been referred, and that on that limited ground the order could not be sustained. It accordingly quashed the order and directed that the matter be heard afresh by the third member, who was to give his opinion on the questions referred and send the matter back to the Division Bench of the National Commission to be decided accordingly.
In reaching that conclusion, the learned Single Judge relied on two decisions of the Supreme Court, Kesho Nath Khurana v. Union of India4 and Commissioner of Income Tax, Delhi v. Bansi Dhar and Sons5, and on a Full Bench decision of that Court in Shriram Industrial Enterprises Limited v. Union of India6.
It is worth pausing on what the High Court actually directed, because the Supreme Court’s answer is bound up with it. The direction was that the third member should answer the five questions and return the file. But the five questions, as framed, could not be answered without deciding the case. The High Court therefore required the performance of a formality that was impossible on its own terms. That difficulty, more than anything else in the judgment, justified the Supreme Court’s intervention.
The Settled Rule: A Referee Answers, It Does Not Decide
The principle on which the High Court acted is of long standing. In Kesho Nath Khurana, a learned Single Judge hearing a second appeal under Section 100 of the Code of Civil Procedure, 1908 referred a particular question of law for the opinion of a Division Bench. The Division Bench proceeded to decide the second appeal on merits and dismissed it with costs. The Supreme Court held that the Division Bench had erred in adopting that course. It ought to have sent the appeal back to the Single Judge with the answer rendered by it to the question referred, and left it to the Single Judge to dispose of the second appeal according to law.
The Supreme Court in the present case approached that line of authority through the concurring opinion of Lokur, J. in State of Punjab v. Salil Sabhlok7, where the decisions on the point are collected. That opinion notices Kerala State Science & Technology Museum v. Rambal Co.8, in which it was held to be well settled that where a reference is made on a specific issue by a Single Judge or a Division Bench to a larger Bench, “the larger Bench cannot adjudicate upon an issue which is not the question referred to”; T.A. Hameed v. M. Viswanathan9, in which the Full Bench was held to have been obliged to answer the question referred and remit the matter to the Division Bench for deciding the revision petition on merits; and Saquib Abdul Hameed Nachan v. State of Maharashtra10, in which it was observed that normally, after the reference is answered by the larger Bench, it is for the referring court to decide the issue on merits on the basis of the answers given.
The same opinion, however, contains the qualification upon which the present judgment is built. Having accepted that a larger Bench should decide only the questions referred to it, Lokur, J. added that “if a subsidiary question logically and unavoidably arises, the larger Bench cannot be dogmatic and refuse to answer it”, and that “a common sense approach must be taken on such occasions”.
The High Court read the rule. The Supreme Court read the exception. Both are to be found in the same paragraph of the same judgment.
What the Supreme Court Held?
The Court began by accepting the orthodox position. Observing that, on a plain reading of Section 58(3), it would prima facie seem that the third member had acted in excess of jurisdiction by deciding the appeal, the Court identified what it described as a significant aspect of the case that could not go unnoticed: although in matters arising under the Act the statutory mandate is to opine on the point or points on which the members of a Bench differ, the members of the referring Bench in this case did not state the points on which they differed. Instead, five questions were formulated for the answer of the third member, and those questions, as formulated, required a consideration of the facts alleged and rebutted on merits.
The Court then held that the objection as to the scope of the reference was, in the circumstances, “technical”. The referring order had not delineated the points of difference; it had formulated questions which went to the root of the complaint and were inseparable from the evidence on record. The third member, of necessity, had to survey the entire gamut of the material and the rival contentions raised before the referring Bench. It was in that backdrop that he had, while answering the questions referred, also decided the appeal on merits on the basis of the majority opinion, his own opinion and that of the companion member being ad idem. Viewed thus, his approach reflected the common-sense approach which Salil Sabhlok had recognised to be available in exceptional cases, and the Court declined to disapprove it “at this distance of time”.
The operative holding is contained in the observation that, on the facts and in the circumstances, by not returning the reference with the answers and instead deciding the appeal, the third member did not commit “such an illegality” as warranted interference in the exercise of jurisdiction under Article 227 of the Constitution. The Court acknowledged that the course adopted by the learned Single Judge found support in Kesho Nath Khurana, but held that, having regard to Section 58(3) and to what it described as “the faltering reference made by the referring Bench”, there was no reason to uphold the conclusion recorded by the High Court.
Finally, the Court was careful to confine what it was deciding. It noticed that the learned Single Judge had not taken exception to the answers given by the third member to the questions referred, exception having been taken only in respect of the procedure adopted, so that the merits of the findings had not been examined at all. It therefore held it imperative that the High Court decide the application under Article 227 one way or the other on its own merits, set aside the impugned order, remanded the application for fresh consideration with all issues of fact and law left open, expressed the view that it would be eminently desirable that the application be decided at an early date, and recorded its expectation that the National Commission would not proceed further until the High Court had given its final decision.
The Three-Tier Scheme of the Act: A Distinction the Court Did Not Address
There is an argument available on the text of the Act itself which does not appear to have been placed before the Court, and which in my respectful submission is decisive of the narrow question. The Consumer Protection Act, 2019 provides for a third member on three separate occasions, once for each tier of the consumer commissions, and it does not use the same language on each occasion.
For the District Commission, the provision is Section 39(3). It states that in any proceeding conducted by the President and a member, if they differ on any point or points, they shall state the point or points on which they differ and refer the same to another member for hearing on such point or points, “and the opinion of the majority shall be the order of the District Commission”. The proviso requires the other member to give his opinion within one month. Section 39(4) then provides that every order made by the District Commission shall be signed by the President and the member who conducted the proceeding, and that where the order is made on the basis of the majority opinion under sub-section (3), such order shall also be signed by the other member.11
For the State Commission, the provision is Section 47(3), and for the National Commission, Section 58(3). Both are cast in materially identical terms, and both depart from the formula used for the District Commission. They provide that “such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it”.12 Neither converts the majority opinion into the order of the Commission. Neither requires the third member to sign any order. The time limit is one month at the State Commission and two months at the National Commission.
The difference is not stylistic. At the District Commission, the legislature said, in terms, that the opinion of the majority is the order, and made the third member a signatory to it. There, the referee is a decision-maker by force of statute; the file does not go back, because there is nothing to send it back for. At the State and National Commissions the legislature used a narrower formula under which only the point of difference is resolved by the majority, leaving the order to issue from the Bench seised of the matter. These are provisions of the same Act, in the same Chapter, enacted at the same time. The variation in language is far more readily explained as a considered distinction than as an accident of drafting.
That distinction furnishes the strongest textual support for the view taken by the Allahabad High Court, and it is the answer to any argument that the majority-opinion clause in Section 58(3) itself authorises the third member to dispose of the appeal. The Supreme Court quoted Section 58(3), emphasised the words “point or points”, and did not place Section 39(3) beside it. Had it done so, the case for treating the third member’s course as an exception rather than as a permissible norm would have been stronger still, and the exception could then have been defined with greater precision.
Identical Words in Other Statutes: The Income-Tax and Customs Analogy
Section 58(3) is not novel drafting. It reproduces, with the addition of the two-month proviso, Section 20(1B) of the Consumer Protection Act, 1986.13 That provision was itself borrowed, very nearly word for word, from Section 255(4) of the Income-tax Act, 1961, which governs references to a third member of the Income Tax Appellate Tribunal, and from its counterpart, Section 129C(5) of the Customs Act, 1962.14 Section 255(4) provides that if the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, but if the members are equally divided they shall state the point or points on which they differ, and the case shall be referred by the President for hearing on such point or points by one or more of the other members, “and such point or points shall be decided according to the opinion of the majority of the members of the Appellate Tribunal who have heard the case, including those who first heard it”. The correspondence with Section 58(3) is almost exact.
This matters, because there exists a developed body of authority on that identical language, and it runs in the opposite direction. In Dynavision Ltd. v. Income Tax Appellate Tribunal15, the Madras High Court quashed the order of a Third Member precisely because the questions had been reframed and the appeal decided upon the reframed questions. The Court held that the President or the Third Member has no right to travel beyond the scope of the reference, and no right to enlarge, restrict, modify or formulate any question of law of his own on the difference of opinion referred to by the members. In Commissioner of Income Tax v. Sahara India Ltd.16, the Allahabad High Court put the matter more bluntly, holding that it was not open to the Third Member to sit in appeal over the matter and decide some questions while leaving others unanswered in his own way; his statutory duty was to answer the questions referred to him in a specific manner, so that the matter could ultimately be decided by the regular Bench in the light of the majority opinion.
The Supreme Court did not engage with this line of authority. Given that the provision before it was, in substance, a transplant of the provision which those decisions construe, that is a real gap in the discussion. It is also, for the practitioner, an opening. Askari Hussain is now the leading authority on Section 58(3), but it has not displaced a stricter and, if one may say so, more closely reasoned jurisprudence developed on identically worded provisions in the taxing and customs statutes, a jurisprudence which remains available in argument, particularly on the question of what a third member ought to do when confronted with a reference that is defective in its frame.
Article 227 and the Threshold of Interference
Before turning to what is unsatisfactory in the judgment, it is right to record where it is plainly correct, and that is on the scope of Article 227.
The jurisdiction under Article 227 is supervisory and not appellate. Its object is to keep tribunals and subordinate courts within the bounds of their authority, not to audit their proceedings for procedural regularity. The principles were summarised in Garment Craft v. Prakash Chand Goel19, and run back through Estralla Rubber v. Dass Estate (P) Ltd. and Shalini Shyam Shetty v. Rajendra Shankar Patil20: the power is to be exercised sparingly and in appropriate cases, to correct a grave dereliction of duty or a flagrant abuse of fundamental principles of law or justice, and the High Court is not to substitute its own conclusion on facts for that of the inferior forum. An irregularity in the form of an order, the substance of which was never challenged before the High Court, is a slender foundation on which to quash it.
It is convenient here to note the route by which such a challenge reaches the High Court at all, since it is a matter on which practitioners are still occasionally in difficulty. Where the National Commission acts in its appellate jurisdiction, no statutory appeal lies to the Supreme Court, and a petition under Article 227 before the concerned High Court is maintainable: so held in Ibrat Faizan v. Omaxe Buildhome Private Limited21. The distinction between the original and appellate jurisdiction of the Commission, and its consequences for the maintainability of a petition under Article 136, was confirmed in Universal Sompo General Insurance Co. Ltd. v. Suresh Chand Jain22. The earlier observations in Cicily Kallarackal v. Vehicle Factory23, to the effect that orders of the Commission are incapable of being questioned in the writ jurisdiction of the High Court, must now be read as confined to the exercise of original jurisdiction, from which a statutory appeal does lie.
Conclusion
The Supreme Court has reached a sensible result. To quash an order for a defect of procedure which caused no demonstrated prejudice, and to remit it to a referee who could not lawfully perform the task which the High Court had set him, would have served no one, least of all the complainants, whose entitlement was affirmed by two of the three members who heard the appeals. On the scope of Article 227, and on the location of the fault in the referring Bench rather than in the referee, the judgment is unimpeachable.
The rule which it lays down is, however, looser than the statute requires and looser than the statutory text will comfortably bear. Parliament made the opinion of the majority the order of the Commission at the District level, and deliberately declined to do so at the State and National levels. That distinction deserved an answer. So did the thirty-four months which the reference consumed against a proviso of two. So did a body of authority on identically worded provisions in the Income-tax and Customs Acts which points the other way firmly.
The narrower rule, that a defective reference is to be sent back to be reframed, and not cured by deciding — would have produced precisely the same outcome on these facts, since the answers of the third member were never impugned, while leaving the law where the statute places it. What saves the third member in this case is not principle but the passage of time. That is a thin foundation on which to build the next case, and the next case will come.
Notes and References
1. Askari Hussain & Ors. v. Dinesh Kumar & Ors., 2026 INSC 929; Civil Appeal No. 11988 of 2026 (arising out of SLP (C) No. 19685 of 2025), decided on 24th August 2026.
2. Section 58(2), Consumer Protection Act, 2019 (Act 35 of 2019).
3. Section 58(3), Consumer Protection Act, 2019, and the proviso thereto.
4. Kesho Nath Khurana v. Union of India and Others, 1981 Supp SCC 38.
5. Commissioner of Income Tax, Delhi v. Bansi Dhar and Sons, (1986) 1 SCC 523.
6. Shriram Industrial Enterprises Limited v. The Union of India and Others, 1994 SCC OnLine All 647 (Full Bench).
7. State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1, per Lokur, J., at paragraphs 137 to 145.
8. Kerala State Science & Technology Museum v. Rambal Co., (2006) 6 SCC 258.
9. T.A. Hameed v. M. Viswanathan, (2008) 3 SCC 243.
10. Saquib Abdul Hameed Nachan v. State of Maharashtra, (2010) 9 SCC 93.
11. Section 39(3) and Section 39(4), Consumer Protection Act, 2019.
12. Section 47(3) and Section 58(3), Consumer Protection Act, 2019.
13. Section 20(1A) and Section 20(1B), Consumer Protection Act, 1986.
14. Section 255(4), Income-tax Act, 1961; Section 129C(5), Customs Act, 1962.
15. Dynavision Ltd. v. Income Tax Appellate Tribunal, (2008) 217 CTR 153 (Madras High Court).
16. Commissioner of Income Tax v. Sahara India Ltd., 2017 (1) TMI 1456 (Allahabad High Court).
17. Section 433, Bharatiya Nagarik Suraksha Sanhita, 2023, corresponding to Section 392, Code of Criminal Procedure, 1973.
18. Section 98(2) and Section 98(3), Code of Civil Procedure, 1908.
19. Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181.
20. Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97; Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329.
21. Ibrat Faizan v. Omaxe Buildhome Private Limited, 2022 LiveLaw (SC) 481; Civil Appeal No. 3072 of 2022, decided on 13th May 2022.
22. Universal Sompo General Insurance Co. Ltd. v. Suresh Chand Jain, 2023 INSC 649, decided on 26th July 2023.
23. Cicily Kallarackal v. Vehicle Factory, (2012) 8 SCC 524.
24. New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage (P) Ltd., (2020) 5 SCC 757 (Constitution Bench).
25. Dr. J.J. Merchant and Others v. Shrinath Chaturvedi, (2002) 6 SCC 635.
26. Ministry of Consumer Affairs, Food and Public Distribution, reply placed before the Lok Sabha, 2026.
27. Order dated 13th August 2026 in In Re Pay and Allowance of the Members of the U.P. State Consumer Dispute Redressal Commission, Writ Petition (Civil) No. 1144 of 2021, as reported in the legal press.
