A-57/2024
22-1-2024
ORDER ON ADMISSION
BY SRI RAVI SHANKAR, JUDICIAL MEMBER
Heard from appellants.
2. The OP Nos. 2 and 3 in complaint No.239/2023 before the 3rd Additional Bengaluru Urban District Consumer Commission, Bengaluru preferred this appeal against the exparte order made and directed to pay an amount of Rs.1,10,000/-with interest along with compensation of Rs.25,000/- towards mental agony and Rs.5,000/- litigation expenses and submits that the complainant filed a complaint before the District Consumer Commission alleging untrade practice/deficiency in service in selling the defective hearing aid and sought for refund of the amount paid towards to the said medical device.
3. The District Consumer Commission after admission of the complaint had issued a notice against these appellants and directed to appear on 5-10-2023, these appellants were not able to appear before the District Consumer Commission for which the District Consumer Commission placed exparte and as soon as they placed exparte at the earliest point of time, the District Consumer Commission offered the complainant to file affidavit evidence and subsequently in the month of October itself, the order was passed and directed to pay the above said amount.
4. The order passed by the District Consumer Commission is not in accordance with law. Section 38 (2) (a) of the CP Act, 2019 clearly defines that, time of 30 days with another 15 days has to be provided for contesting the matter and to file objections, but without elapsing the said time, the District Consumer Commission hurriedly passed an order, hence prays to set aside the order passed by the District Commission.
5. The learned advocate for appellants further submits that a medical device was sold by the Respondent No.2 and 3 as per the advice made by these appellants. The said medical device was used by child of the complainant, the said device was working properly, due to improper usage from the child of the complainant, the said device was tendered for service, they have serviced the device and receiver and amplifier was repaired and handed over to the complainant for usage. After that there was no any complaint with respect to the said device, subsequently, the complainant approached the All India Institute of Speech and Hearing at Mysuru for examination of his child, wherein the report was given and advised the complainant to use the different digital hearing aid for speech performance. Basing on the said report, the complainant approached for refund of the amount paid towards the said hearing aid, even though there is no any defect in the hearing aid. The complainant alleged deficiency in service and filed the complaint before the District Commission. The order passed by the District Commission is not in accordance with law, the District Commission has not acted as per the provision of the CP Act, hence prays to set aside the order passed by the District Commission, in the interest of justice and equity and dismiss the complaint as there is no any untrade practice or deficiency in service.
6. Heard on admission.
7. On perusal of the certified copy of the order, order sheet from 4-9-2023 to 18-10-2023, the Respondent No.1 had filed a complaint against these appellants and other respondents alleging deficiency in service/unfair trade practice and sought for refund of Rs.1,10,000/- which was paid towards the purchase of the said hearing aid/medical device. The notice issued by the District Commission was served on the appellant and other respondents. But this appellant had not explained before this Commission, the valid reasons for not appearance of these appellants as and when called for filing version and appear, we noticed the District Consumer Commission has issued notice on 4.9.2023 after admission and directed these appellants to appear and contest the matter by filing any version, but without any valid reasons, this appellant not appeared consequently this appellant placed exparte. The District Commission after placing exparte had offered the evidence of the complainant and proceeded by making an order for refund of the above said amount. The order passed by the District Consumer Commission is in accordance with law; we do not find any irregularity in the order passed by the District Consumer Commission.
8. The learned advocate for appellants vehemently argued that, the District Consumer Commission ought to wait for stipulated time of 30 days and another 15 days as per Section 38 (2) (a) of the CP Act, instead of that had hurriedly passed an order. An opportunity was not provided to this appellant to contest the matter and also cited a decision reported in (2020) 5 Supreme Court Cases 757 (Before Arun Mishra, Indira Banerjee, Vineet Saran, M.R.Shah and S.Ravindra Bhat, JJ.) – New India Assurance Company Limited –versus- Hilli Multipurpose Cold Storage Private Limited – Civil Appeals Nos.10941-42 of 2013 withNos.8343 of 2014, 4473, 5485, 6095, 1083-1086, 10127, 10129, 10333,10858 of 2016, 780, 2339, 4457, 4510, 5219, 5574-75, 5578-79, 7100, 10226, 12456 of 2017, 1964-65 and 1968-86 of 2020, decided on March 4, 2020. A. Consumer Protection Act, 1986 – Ss.13 (2) (a) and 13 (2) (b)Iii) r/w Ss.13 (3), 13(3-A), 13 (4), and 14 and 24-A – Limitation period for filing reply/response to the complaint by the respondent/ opposite party – Held, mandatorily cannot be extended beyond the prescribed period of 45 days (i.e. period of 30 days along with discretionary extension of time up to 15 days) and another decision reported in (200) 7 Supreme Court Cases 668 (Before Dr.A.S.Anand, C.J. and M.B.Shah and K.G.Balakrishnan, JJ.) – Charan Singh –versus- Healing Touch Hospital and Others. And submits that the District Commission ought to provide an opportunity to contest the matter as per the provision provided under Section 38 (2) (a) of the CP Act, hence prays to set aside the order passed by the District Consumer Commission.
9. On perusal of the citations, we noticed the findings are applicable to the cases where the OPs were appeared and sought time for filing any version/objection to the allegations, but the said citations are not applicable to the case in hand as because the appellant had not appeared at all before the District Commission as and when called thus he placed exparte, when this appellant placed exparte, he cannot invoke the provision of Section 38 (2) (a) of the CP Act. The appellant has utterly failed to explain the reason for non appearance before the District Commission when the notice was served. In the absence of such explanation, we hold no valid grounds urged before this Commission to set aside the order passed by the District Commission. As such no interference is required and accordingly the appeal is dismissed and the order passed by the District Commission is confirmed. Accordingly, we proceed to pass the following:
O R D E R
The appeal is hereby dismissed. No order as to cost.
The impugned order 18-10-2023 passed by the 3rd Additional District Consumer Disputes Redressal Commission, Bengaluru (Urban) in CC.No.239/2023 is confirmed.
The amount in deposit shall be transmitted to the concerned District Commission to pay the same to the complainant.
Send a copy of this order to both parties as well as concerned District Consumer Commission.
Member Judicial Member
