1.         The present Revision Petition (RP) has been filed by the Petitioners against Respondent as detailed above, under section 58(1)(b) of Consumer Protection Act,  2019, against the order dated 04.01.2021 of the State Consumer Disputes Redressal Commission, Rajasthan (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 10/2020 in which order dated 12.12.2019 of District Consumer Disputes Redressal Forum, Bikaner (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 85/2019 was challenged, inter alia praying for setting aside the impugned order dated 04.01.2021 passed by the State Commission.

2.         The Revision Petitioners (hereinafter also referred to as OPs) were Appellants before the State Commission and Opposite Parties before the District Forum and the Respondent (hereinafter also referred to as Complainant) was Respondent before the State Commission and  Complainant before the District Forum.

3.         Notice was issued to the Respondent(s) on 29.10.2021.  After notice, Mr. Sameer Srivastava, Advocate put his appearance on behalf of Respondent on 03.03.2022. On 01.11.2022 also Mr. Deepak Agarwal and Mr. Sameer Srivastava, Advocates appeared for the Respondent. None appeared for Respondent on 19.01.2023, 09.03.2023, 12.07.2023 and on 20.12.2023. On 20.12.2023, Registry was directed to issue fresh notice to the Respondent. Fresh notice was issued and as per Registry’s report, Respondent was served on 16.01.2024.  Despite service of notice, the Respondent did not appear on 23.02.2024 and 30.05.2024 and hence the matter was heard ex parte and judgment was reserved.  Written Arguments filed by the Petitioner on 02.04.2024. 

4.         Brief facts of the case, as per Complainant and  as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that: -

The Complainant being in the business of making and selling of Ice Cream from place to place through rikshaws, on assurance of Petitioner that the goods shall be kept for 12 to 14 hours till temperature of 50 degree, had purchased 20 pieces of 100 litre Chiller Box, at the cost of Rs.25,960/- per piece from May 2018 to July 2018 in part quantities from Petitioner No.3, for which the complainant paid a total sum of Rs.5,19,200/-. One year warrantee was given by the Petitioner-3 for the said product. It is alleged by the complainant that the Chiller boxes were not working properly as the Ice Cream in the said Chiller Box gets melted within 3 to 4 hours and because of that the complainant suffered huge loss.  On complaint by the complainant to Petitioner-3, the technician came and visited on 11.09.2018 and repaired the said Chiller Box.  In the presence of the technician the complainant kept goods of Rs.3850/- which got melted and got damaged.  OP-3 assured that they will replace and return the product Seaplast Ice 100 litre Chiller Box.  But the OP-3 neither replaced nor returned the said product and the complainant himself repaired the product from his own.  The complainant did not receive any satisfactory reply from the Petitioner.   The complainant sent legal notice on 12.12.2018.  The OP neither repaired the chiller box and nor have refunded any money towards the loss.  Hence, the complainant filed complaint before the District Forum.

5.         Vide Order dated 12.12.2019 in the CC No. 85/2019, the District Commission has allowed the complaint and directed the OP to refund the amount of Rs.5,19,200/- towards purchase of 20 pieces of Seaplast Ice 100ltr Chiller Box, with interest @9% p.a. from 14.06.2019 till realization.  The District Forum also awarded Rs.50,000/- towards mental and physical harassment and Rs.10,000/- towards litigation chages.  Both the amounts were directed to be paid within one month, otherwise, these amounts shall carry interest @9% p.a. till realization.

6.         Aggrieved by the said Order dated 12.12.2019 of District Forum, Petitioners appealed in State Commission and the State Commission vide order dated 04.01.2021 dismissed Appeal No. 10/2020.

7.         Petitioners have challenged the said Order dated 04.01.2021 of the State Commission mainly on following grounds:-

(i)        Both the Fora below erred in not taking into consideration that the Respondent had alleged that since May 2018 the defect has been raised by the Respondent, then why the Respondent had kept in purchasing the products till July, 2018 from the Petitioners without any objections.

(ii)       The Fora below erred in not taking into consideration that out of 20 Ice Chiller Boxes just 1 or 2 were found defective due to fault and improper use and unjustified use of the produce by the Respondent in spite knowing the terms and uses of the Product.

(iii)     The State Commission failed to appreciate that the service report issued to the Respondent by the Petitioner company wherein most of the units/produces were working properly and just routing checkup done by the technician where no major fault found out due to fault of the Petitioners.

(iv)      The State Commission has erred taking into consideration the loss of Rs.1,40,000/- value of ice cream which in contrary to facts that in each 100ltr. Ice Chiller boxes, ice cream amounting to Rs.4500/- has to be stored and not anymore.

(v)       The State Commission erred in not taking into consideration that District Forum proceeded ex-parte against the Petitioners on the very second date of hearing i.e. on 23.07.2019 without giving any opportunity to be heard.  The State Commission disposed of the matter on the admission stage, without application of judicial mind and without appreciating the documents on record and the grounds of appeal.

(vi)      The District Forum erred in not taking into consideration the facts and circumstances of the case and passed the order against the Petitioners.

(vii)    Both the State Commission and the District Forum have erred in not taking into consideration that the complaint was allowed by the District Forum vide ex parte order dated 12.12.2019 contrary to the fact that the complainant had purchased the said products for the commercial usage and for resale purposes, hence the complainant does not fall within the purview of the definition of consumer as per Consumer Protection Act, 2019.

(viii)   The State Commission and District Forum have erred in not taking into consideration that the evidence of Complainant was not filed by the Complainant before the District Forum.  Both the Fora below erred in not taking into consideration the just and equitable principle of law.  The State Commission erred in not providing fair trial to the Petitioners which is against the principle of natural justice.  The District Forum has erred in not providing opportunity to be heard to the Petitioners which is against the principle of natural justice and had not acted in accordance with law.  The State Commission had wrongly passed the impugned order against the Petitioners and upheld the ex parte order of District Forum in the appeal without application of judicial mind.

8.         Heard counsel for the Petitioners.  Respondent was proceeded ex-parte on account of absence despite service.  In addition to the averments made under the grounds (para 7), the petitioners contended that no finding has been given by the District Forum whether the Respondent falls in the definition of ‘Consumer’.  The ex-parte judgment passed by the District Forum is against the settled principle of law and judgment in the matter of Ramesh Chand Ardawatiya V/s Anil Pajwani, AIR 2003 SC 2508, Maya Devi V/s Lalta Prasad, (2015) 5 SCC 588 and in Meenakshisundaram Textiles V/s Valliammal Textiles, 2011 (3) CTC 168.  It is also contended that the Ex-parte judgment passed in CC/85/2019 obtained by the Respondent suppressing the material fact in reference to the issuance of reply dated 23.01.2019 on behalf of the Petitioners to the legal notice dated 12.12.2018 issued by Respondent.  It was clearly mentioned in the reply that on 11.09.2018, Respondent was strictly advised to store the product at  -23 degree centigrade, whereas Respondent kept the product at  -5 to -7 degree centigrade and hence bound to face the problem and further advised to charge the unit after using it for 24 hours.  It was also observed power voltage used by the Respondent is extremely low to run the product.  It is also contended that Respondent had not cleared the full dues/consideration against the chiller box and the same are still pending.  It is also contended that in the Appeal, the Petitioners had given the justifiable and proper explanation for their non-appearance in the complaint case i.e. change in the constitution of company as well as change of the office which caused delay in the appointment of advocate. The Petitioners company was informed to present before the District Forum on 10.12.2019 and same status was showing online.  When advocate for the Petitioner’s company appeared before the District Forum, he came to know that the Petitioner Company has already been proceeded ex-parte vide order dated 23.07.2019, hence the very same day, the advocate for the Petitioners applied for the certified copy of the records of the complaint case to move appropriate application for setting aside the ex-parte order dated 23.07.2019. However, it came to know that the final judgment dated 12.12.2019 allowing the complaint was passed by the District Forum. It is further contended that the State Commission did not consider the grounds taken in the appeal for setting aside the ex-parte order and remanding the complaint to be decided as fresh on merits. In support of their case, the petitioners have relied upon the following judgments:

i.   The judgment passed by the Hon’ble Delhi High Court in R.K. Engineering Co. (P) Ltd. vs. Madhu Chawla, decided on 13.11.1990.

ii. The judgment passed by the Hon’ble Supreme Court in Rohit Chaudhary and another vs. Vipul Limited (2024) 1 SCC 8.

9.         A bare perusal of the orders of the State Commission shows that State Commission has not considered the contentions of Petitioners herein, in the Appeal filed by them.  It simply states that “it is evident from the evidences of the Complainant that Ice Chiller Boxes were sold to the Complainant which were defective and complainant has to suffer loss. And the complaint accepted by the Hon'ble District Commission has not erred in passing the order. Hence, the appeal has been dismissed at this primary stage.” Extract of the relevant para of State Commission’s order is reproduced below:

“Arguments have been heard for the Appellant's Advocate through Video conferencing and has produced certain files and documents.

Complainant is having an Ice Cream manufacturing factory and for keeping the Ice Cream safe, the complainant had purchased 20 pieces of Seaplast Ice 100ltr Chiller Box' totaling to an amount of Rs. 5,19,200/- and it was assured at the time of selling that the goods shall be kept for 12 to 14 hours till temperature of  - 50 degree and despite of one year warranty, the Ice Chiller Box' has been damaged. On complaining about it, the technician came and repaired but again it got damaged. Ice Cream used to get met in 3 to 4 hours and it was requested to replace the Ice Chiller Boxes but those were not replaced. No reply has been given of the notice. Summons were served but none remained present from opposite party side. It is evident from the evidences of the Complainant that Ice Chiller Boxes were sold to the Complainant which were defective and complainant has to suffer loss. And the complaint accepted by the Hon'ble District Commission has not erred in passing the order. Hence, the appeal has been dismissed at this primary stage.”

10.       Before the District Forum,  the Petitioners herein were ex-parte.  In the absence of any rebuttal and evidence from OPs (Petitioners herein), the District Forum has gone by the evidences of the Complainant.  In this regard, extract of some of the observations of District Forum is reproduced below:

“Purchased chiller boxes are defective have been mentioned in service report number 818 and service report number 819. No reply has been filed by the opposite party and for this reason the evidences of the complainant remain believable that despite complainant has complained many of times to the opposite party has not replaced the goods and because of that complainant has suffered business loss and also the complainant has suffered lacs of Rupees loss mentally, physically and financially because of the opposite party's product. It seems from the evidences of the Complainant that the chiller boxes were given for repairing to the opposite party but neither the opposite party has repaired it, nor returned it to the complainant and no refund of money has been given back to the complainant. The said act of the Opposite Party is deficiency in service as well as unfair trade practice and hence the complaint of the complainant is maintainable.”

From the above, it is clear that apart from Complainant’s own evidence, the District Forum relied upon service report No. 818 & 819 to conclude that the Chiller boxes are defective.  In addition to these Service Reports (Sr.No. 818 & 819), the Petitioners have also placed on record Service Reports No. 803, 804, 820. Remarks of the Service Engineer appended on the reports, are not clearly readable.

11.       In view of the foregoing, we are of the considered view that the State Commission has not addressed the contentions of the Petitioners herein and have not passed a speaking order.  Hence, the order of the State Commission cannot be sustained.  Accordingly, the order of State Commission is set aside, matter is remanded back to the State Commission for fresh disposal on merits, duly considering the evidence on record and giving an opportunity of hearing to both sides.  Parties may appear before the State Commission on 11.12.2024.  Registry may send a copy of this order to both sides. As the Respondent was ex-parte before this Commission.  State Commission may also issue fresh notice to the Respondent as per due process. Petitioners may file true translated copies of all the service reports before the State Commission. The State Commission may dispose off the Appeal within about 3 months from the date of receipt of this order.  Revision Petition is disposed off accordingly.

12.       The pending IAs in the case, if any, also stand disposed off.