KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

 APPEAL No. 473/2017

JUDGEMENT DATED: 26.09.2023

(Appeal filed against the order in CC.No. 332/2015, DCDRC, Idukki)

PRESENT:

APPELLANT:

(by Advs. Mirza Aslam Beg & Narayan R.)

Vs.

RESPONDENTS:

JUDGEMENT

SRI.  K.R.  RADHAKRISHNAN: MEMBER

          This is an appeal filed under section 15 of the Consumer Protection Act, 1986 against the order in C.C.No.332/2015 on the file of the Consumer Disputes Redressal Commission, Idukki (District Commission for short).  As per the order dated 31.10.2016 the District Commission allowed the complaint and opposite parties were directed to pay Rs.1,05,000/-(Rupees One Lakh Five Thousand) and Rs.45,000/-(Rupees Forty Five Thousand) with 9% interest per annum from the date of deposit to the complainant within 30 days of receipt of a copy of this order failing which the amount shall carry 12% interest per annum from the date of default. 

2.       The complaint in brief is as follows: The complainant had taken two insurance policies bearing numbers 621445717 and 624439089 from the opposite parties in November 2009.  The sum assured under the policies were Rs.3,50,000/-(Rupees Three Lakh Fifty Thousand) and Rs.1,50,000/-(Rupees One Lakh Fifty Thousand) respectively.  It was assured that the policies can be closed at any time after three years and then get full amount paid plus bonus which will be minimum 23% of the premium amount.  However, when approached the second opposite party, only a meagre amount was offered by them.  The complainant filed the complaint alleging deficiency in service on the part of the opposite parties and claiming refund of the premium paid with interest and compensation.

3.       The complainant adduced documentary evidence and Exhibits P1 and P2 were marked on his side. Despite notice the opposite parties did not appear before the District Commission and file any written version and hence they were set exparte.  As the opposite parties were declared exparte, there was no oral or documentary evidence on their side. Hence the complaint has been allowed by the District Commission placing reliance on the unchallenged evidence available in this case against them. Aggrieved by the said order the first opposite party has filed this appeal.

4.       The learned Counsel for the appellant submitted that they have issued two policies to the first respondent/complainant, bearing Nos. 621445717 and 624439089 with sum assured of Rs.3,50,000/-(Rupees Three Lakh Fifty Thousand) and Rs.1,50,000/-(Rupees One Lakh Fifty Thousand) respectively. He confirmed having received three premiums amounting to a total of
Rs.1,05,000/-(Rupees One Lakh Five Thousand) and Rs.45,000/-(Rupees Forty Five Thousand) under the respective policies.  He submitted that as per the terms of the policy respondent/complaint is not entitled to receive the entire premium paid by him. The complaint was barred by limitation. There is no deficiency   or unfair trade practice on the part of the appellants.

5.       According to the learned Counsel, an Advocate was engaged and vakkalath and written statement were sent to him.  But he failed to appear before the District Commission which resulted in the exparte order.  He argued that, no reasonable opportunity was afforded to the appellants to put forward their case before the District Commission.  It was submitted that the appellants have cogent evidence to prove their case and therefore, it is necessary that an opportunity is provided to them to place and prove their case. The learned counsel for the appellants prayed for allowing the appeal and setting aside the order of the District Commission.

          6.       We have considered the submissions and examined the records. This is a case in which the first opposite party/appellant did not appear before the District commission and file their version despite receipt of notice. The District commission declared them as exparte 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 of the District Commission is as per the provisions of the Act and we do not find any reason to interfere with the order of the District Commission. 

7.       As already discussed, this is a case in which no version has been filed by the appellant, though they 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 them to file a written version now and hence no purpose will be served if the case is remanded to the District Commission for fresh disposal.

8.       This case was filed prior to the above judgment of the Constitution Bench.  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 judgment 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.”

9.       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 appellants cannot be permitted to file their written version now.

 In view of the foregoing discussion, we do not find any merit in the appeal.  In the result the appeal is dismissed and the order dated 31.10.2016 of the District Commission is confirmed.  There is no order as to costs. 

SL