KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

REVISION PETITION No. 05/2022

ORDER DATED: 23.08.2023

(Against the Order in IA 444/21 in C.C. 743/2019 of CDRC, Thrissur)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

REVISION PETITIONER:

Fridge House Retail Pvt. Ltd., represented by Managing Director, XXX/888, Kuruppan Road, Thrissur.

(By Adv. Unnikrishnan V.)

                                                Vs.

RESPONDENTS:

1. Anitha P.K., W/o Joy K. Daniel, Kannambuzha House, East Fort, Thrissur-680 001.

2. Manager, Sony Authorized Service Centre, IV/691, A/14, 1^st Floor, Thrissur-Ernakulam Highway, Galilee Junction, Nehru Nagar, Chiyyaram, Thrissur-680 026.

3. Sony India Pvt. Ltd., represented by Managing Director, 2^nd Floor, Muscat Tower, SA Road, Kadavanthra, Kochi-682 020.

ORDER

SRI. RADHAKRISHNAN. K.R: MEMBER

This revision petition is filed by the 1^st opposite party in C.C. No. 743/2019 of the Consumer Disputes Redressal Commission, Thrissur (District Commission for short).  As per the order dated 20.02.2020 the revision petitioner/1^st opposite party was set ex-parte by the District Commission. I.A. No. 444/2021 filed by the Revision Petitioner on 15.12.2021 to review the said order was dismissed by the District Commission on 17.12.2021. Aggrieved by the said order this revision petition is filed.

2. We have heard the learned Counsel for the revision petitioner. He submitted that the notice from the District Commission was received by the staff of the revision petitioner.  However due to the long closure of the showroom of the revision petitioner due to the ongoing Covid 19 pandemic, the notice was misplaced.  When the showroom resumed functioning, the notice caught the attention of the revision petitioner who immediately took immediate action to engage a lawyer.  On enquiry it was learnt that the revision petitioner had been set ex-parte by the District Commission.  Steps to review the order setting the revision petitioner ex-parte was taken by his lawyer vide petition dated 15.12.2021 under Sec. 40 of the Consumer Protection Act, 2019.  This petition was dismissed by the District Commission vide its order dated 17.12.2021 stating that “This petition is filed under CP Act, 1986 for review of the order.  We have no jurisdiction to entertain this petition as per the Act.  Hence the petition is dismissed”.  The learned Counsel submitted that it was due to the pandemic and the consequent closure and non-functioning of the showroom that the revision petitioner missed the notice though duly accepted by the staff of this revision petitioner and could not appear and prosecute the complaint in time. 

3.  The learned counsel submitted that section 40 of the Consumer Protection Act, 2019 provides for power of review to District Commissions to review its orders.   According to him the action taken in dismissing the petition for review holding that it was one under the old Act and so the District Commission had no jurisdiction to entertain the petition is wholly inconsistent with Sec. 40 of the new Act.  The learned Counsel prayed for setting aside the order of the District Commission and remand the case for fresh disposal by the District Commission, giving an opportunity to the appellants to adduce evidence.

4.  We have considered the submissions made by the learned counsel for the Revision Petitioner and examined the records.  The learned counsel admitted having received the notice by the staff of the Revision Petitioner.   His contention is that due to the Covid 19 pandemic and the consequent closure and non-functioning of the showroom that the revision petitioner missed the notice and hence he could not appear and prosecute the complaint in time.  However, we observe that the complaint was filed prior to the spread of Covid 19 pandemic and that the ex-parte order against the Revision Petitioner /1^st opposite party was passed by the District Commission on 20.02.2020. Exclusion from limitation period due to spread of Covid 19 pandemic as per the order of the Supreme Court in Suo Motu Writ Petition (C) No. 03/2020 was available from 15.03.2020 only. Hence the argument that the notice was misplaced consequent on the dislocation due to the spread of Covid 19 pandemic and seeking exclusion from limitation as per the order of the Apex Court is not tenable.

5.  The Revision Petitioner filed I.A. No 444/2021 before the District Commission as per Section 40 of the Consumer Protection Act, 2019 (hereinafter referred to as the Act for short) to review the ex-parte order dated 20.02.2020.  It was dismissed by the District Commission on 17.12.2021.  The Revision Petitioner challenges the said order of the District commission.  It is significant to note that the provisions of the Consumer Protection Act, 2019 was brought into force on 20.07.2020 and the ex-parte order was passed much earlier.

6.  Section 40 of the Consumer Protection Act, 2019 under which the Review Application was filed before the District Commission reads as follows:

“Review by District Commission in certain cases: -    The District Commission shall have the power to review any of the order passed by it if there is an error apparent on the face of the record, either of its own motion or on an application made by any of the parties within thirty days of such order.”

The provision stated above confers power on the District Commission to consider a review application received within thirty days of the order.  This provision is not applicable in this case as it was not in force when the impugned order was passed.  Further District Commission can review an order passed, if only there is an error apparent on the face of the record. Hence we do not find any infirmity in the order of the District Commission dismissing the Review Application.

7.   A crucial issue in this case is regarding proper service of notice to the revision petitioner/1^st opposite party and filing of their written version as per the relevant provisions of the Consumer Protection Act, 1986. The revision petitioner/1^st opposite party admitted having received the notice.  He was declared ex-parte as per proceedings dated 20.02.2020 of the District Commission, which is reproduced below:

“Petitioner represented.  Opposite party’s Notice send properly. Name called.  Absent.  Opposite parties 1, 2 & 3 (set ex-parte –OP1only). OP 2 & 3 represented.  For complainant’s evidence to 8/4/20”.

8. Absolutely, no evidence has been produced by the revision petitioner to show that the proceedings of the District Commission is erroneous in any manner.  The order of the District commission is as per Section 13(2) (b) (ii) of the Consumer Protection Act, 1986, which is reproduced below:

“13 (2) The District commission shall, if the complaint admitted by it under section 12 relates to goods in respect of which the procedure specified in sub-section (1) cannot be followed, or if the complaint relates to any services,-

(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;

(b) where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the district Forum shall proceed to settle the consumer dispute –

1. on the basis of evidence brought to its notice by the complainant and the opposite party, if the opposite party denies or disputes the allegations contained in the complaint, or
2. ex-parte on the basis of evidence brought to its notice by the complainant, where the opposite party omits or fails to take any action to represent his case within the time given by the Forum.”

In view of the above specific provision, we do not find any error in the ex-parte order of the District Commission.  The order dated 20.02.2020 of the District Commission is as per the provisions of the Act and we do not find any reason to interfere with the proceedings of the District Commission. 

9. Moreover, this is a case in which no version has been filed by the revision petitioner/1^st opposite party, though he had received notice from the District Commission.  Therefore, in view of the dictum laid down by the Constitution Bench of the Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757, it is not possible for him to file a written version now.  For the above reason, there is no point in allowing this revision.

10. There is no merit in the contentions put forward by the Revision Petitioner.  We do not find any material irregularity or jurisdictional error warranting interference of this Commission under its revisional jurisdiction.  For the foregoing reasons, we find no grounds to grant any of the reliefs sought for in the Revision Petition.

          This revision fails and is accordingly dismissed.  No costs.

             AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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