KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

REVISION PETITION No. 63/2022

ORDER DATED: 13.12.2023

(Against the Order in C.C. 283/2019 of CDRC, Kollam)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

REVISION PETITIONER:

Viswambharan, S/o Sukumaran, Kannimel Veedu, Maru:South Muri, Alumkadavu P.O., Ayanivelikulangara Village, Karunagappally, Kollam.

(By Advs. S. Prahladan & Liju B. Nair)

                                                Vs.

RESPONDENT:

Bijukumar, S/o Prabhakaran Nair, Biju Bhavanam, Mararithottam, Kallelibhagom Village, Thodiyoor, Karunagappally, Kollam-690 523.

ORDER

SRI. RADHAKRISHNAN. K.R: MEMBER

This revision petition is filed by the complainant against the order in Interlocutory Application No. 175/2022 in C.C. No. 283/2019 on the file of the District Consumer Disputes Redressal Commission, Kollam (District Commission for short). As per the order dated 27.07.2022 the District Commission allowed the said I. A. filed by the opposite party.  Aggrieved by the said order the complainant has filed this revision petition.

2. The complaint pertains to alleged deficiency in service in the construction of a residential building.  The complaint was filed on 26.11.2019 as per section 12 of the Consumer Protection Act, 1986.  Opposite party entered appearance on 16.12.2019.  As the opposite party failed to file his version within the statutory time he was set ex-parte on 21.08.2020.  I.A. No. 69/2021 filed by him to set aside the ex-parte order was dismissed by the District Commission on 20.04.2022.  I.A. No. 175/2022 was filed by the opposite party to review the said order.  The District Commission allowed I.A. No. 175/2022, accepting the contention of the opposite party that he was set ex-parte during Covid 19 pandemic period and hence he is eligible for exclusion from limitation as per the order of the Apex Court. The District Commission directed to receive the version filed by the opposite party on payment of costs of Rs. 1,000/-.  The revision is filed by the complainant challenging the said order of the District Commission. 

3.  Heard both sides and perused the records.  The learned counsel for the revision petitioner/complainant submitted that the opposite party did not file his version within the statutory period.  The complaint was filed on 26.11 2019 and on getting notice the opposite party entered appearance on 16.12.2019 and he is required to submit the version within 30 days i.e; before 15.01.2020.  If at all he was given further time of 15 days he should have filed the version before 30.01.2020.  The exclusion from limitation due to Covid-19 pandemic is available from 15.03.2020 only and hence the said exclusion cannot be claimed by the opposite party.  As per the decision of the Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757, the Consumer Commissions cannot accept the version filed beyond the statutory period.  As the time for filing version expired prior to the beginning of Covid-19 pandemic, no exclusion from limitation can be given to the respondent/opposite party. According to the learned Counsel the District Commission erred in allowing the I.A. of the opposite party for accepting the version and hence he sought interference of this Commission under its revisional jurisdiction.  The learned counsel prayed to allow the revision petition and set aside the order of the District Commission which allowed I.A. No. 175/2022.

4.  The learned counsel for the respondent/opposite party submitted that he was set ex-parte during Covid-19 pandemic on 21.08.2020.  The I.A. No. 69/2021 filed by him for setting aside the said order was dismissed on 20.04.2022 i.e; within the Covid-19 pandemic exclusion allowed by the Apex Court.  The District Commission has rightly allowed the I.A No. 175/2022 for accepting the version as it comes within the purview of exclusion from limitation as per the order of the Apex Court. The learned Counsel further submitted that the dictum laid down in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757 is not applicable in this case as it was filed prior to the said decision. Hence he prays for dismissing the revision petition and confirm the order of the District Commission in I.A. No. 175/2022 dated 27.07.2022.

5.  We have considered the submissions on both sides and examined the records. As is evident from the records the opposite party /respondent entered appearance on 16.12.2019 and he was required to submit his version before 15.01.2020. The District Commission was right in setting him ex-parte 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.

6. The petition vide I.A. No 69/2021 seeking to set aside the ex-parte order was rightly dismissed by the District Commission on 20.04.2022.  Subsequently the respondent/opposite party filed I. A. No. 175/2022 to review the said order. The District Commission allowed the said I.A. holding that the opposite party was set ex-parte during Covid-19 pandemic period.

7. It is evident from the records that the revision petitioner was required to file the version within thirty days from 16.12.2019.  Statutory time limit for filing written version was over even before the relaxation due to Covid-19 pandemic was available. 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 version was not filed in time because of the circumstances prevailing due to the spread of Covid-19 pandemic and seeking exclusion from limitation period as per the order of the Apex Court is not tenable.  Hence we find that the order of the District Commission allowing I.A. No. 175/2022 is not justified in the facts and circumstances of the case.

8.       As already discussed, this is a case in which no version has been filed by the respondent/opposite party within the statutory period. The learned counsel for the revision petitioner submitted that, 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 and hence the order of the District Commission to accept the version is beyond its authority.  The learned Counsel for the respondent/opposite party argued that the dictum laid down by the Supreme Court in the said case is not applicable in this case as it was filed prior to the said decision.

9. We notice that the complaint was filed prior to the  judgment of the Constitution Bench in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757.  Applicability  of the decision in the  cases prior to the said judgment is discussed by the apex court in  M/s Daddy Builders Pvt Ltd & Another Vs Manisha Bhargava {SLP (Civil) No 1240 of 2021dated 11.02.2021.   In this case the Apex Court have observed that Consumer Commissions have no jurisdiction to accept written statement filed beyond the statutory period even in cases prior to the decision dated 04.03.2020 in New India Assurance Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757 and the exemption is available only in those old cases where the delay in filing the version was already condoned.  Para 4 and 5 of the order of the apex court are reproduced below:

“4. Having heard learned counsel appearing on behalf of the petitioners and so far as the question whether the date on which the State Commission passed the order, then on that date, whether the State Commission has the power to condone the delay beyond 45 days for filing the written statement under Section 13 of the Act is concerned, as such, the said issue whether the State Commission has the power to condone the delay beyond 45 days is now no tres integra in view of the Constitution Bench decision of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. reported in (2020) 5 SCC 757.   However, it is submitted by the learned counsel appearing on behalf of the petitioners that as in paragraph 63 it is observed that the said judgment shall be applicable prospectively and therefore the said decision shall not be applicable to the complaint which was filed prior to the said judgment and/or the said decision shall not be applicable to the application for condonation of delay filed before the said decision.

However, the aforesaid cannot be accepted. It is required to be noted that as per the decision of this Court in the case of J.J. Merchant v. Shrinath Chaturvedi, reported in (2002) 6 SCC 635, which was a three Judge Bench decision, consumer fora has no power to extend the time for filing a reply/written statement beyond the period prescribed under the Act. However, thereafter, despite the above three Judge Bench decision, a contrary view was taken by a two Judge Bench and therefore the matter was referred to the five Judge Bench and the Constitution Bench has reiterated the view taken in the case of J.J. Merchant (supra) and has again reiterated that the consumer fora has no power and/or jurisdiction to accept the written statement beyond the statutory period prescribed under the Act, i.e., 45 days in all. However, it was found that in view of the order passed by this Court in Reliance General Insurance Co. Ltd. (supra) dated 10.02.2017, pending the decision of the larger Bench, in some of the cases, the State Commission might have condoned the  delay in filing the written statement filed beyond the stipulated time of 45 days and all those orders condoning the delay and accepting the written statements shall not be affected, this Court observed in paragraph 63 that the decision of the Constitution Bench shall be applicable prospectively. We say so because one of us was a party to the said decision of the Constitution Bench.”

“5.  ………………..In any case, in view of the earlier decision of this Court in the case of J.J. Merchant (supra) and the subsequent authoritative decision of the Constitution Bench of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020) 5 SCC 757, consumer fora has no jurisdiction and/or power to accept the written statement beyond the period of 45 days, we see no reason to interfere with the impugned order passed by the learned National Commission.”

10.     From the above observations it is evident that the Constitution Bench decision of Apex Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd shall be applicable to the complaints which were filed prior to the said judgment as well.  The prospective application of the decision in old cases is relevant only in those cases where the delay in filing the version was already condoned as per the decision of the apex court in the case of Reliance General Insurance Co. Ltd. v. M/s Mampee Timbers & Hardwares Pvt. Ltd. (Diary No. 2365 of 2017 decided on 10.02.2017).  Hence, in this case the respondent/opposite party cannot be permitted to file his written version now.

11. For the foregoing reasons, we find that  there is sufficient ground for the contentions of the revision petitioner that the District Commission erred in allowing I.A. No. 175/2022 and directing to receive the version of the opposite party on payment of costs of Rs. 1,000/-. Hence the order of the District Commission in I.A. No. 175/2022 under challenge in this revision is liable to be set aside.  We do so. 

In the result, this revision petition is allowed and the order dated 27.07.2022 of the District Consumer Disputes Redressal Commission, Kollam in I.A. No. 175/2022 in C.C. No. 283/2019 is set aside.  The District Commission shall proceed to consider and dispose of the complaint on merits, without accepting the version of the respondent/opposite party.  No costs. 

            AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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