KUNDAN KUMAR KUMAI

This is an application u/s 47 of the Consumer Protection Act, 2019, preferred against the order passed by the Ld. DCDRF, Siliguri, in CC/51/2017, on 15/06/2023.

Revisionist’s Case in brief is that, the Respondent had filed a complaint case, before the Ld. DCDRF, Siliguri, on 19/06/2017, when a burglary had taken place in the Revisionist/Bank on 05/05/2016, when valuable articles from his locker no.69, had been stolen and the Revisionist/Bank had failed to address his grievances, despite sufficient opportunities. The Revisionist/Bank, had appeared to contest the claim after receiving the notice on 12/07/2017 and had filed a petition to cross examine the Respondent on dock, vide order dated 08/09/2017, but thereafter the Revisionist/Bank had failed to cross examine the Respondent, following which the Ld. DCDRF, Siliguri had passed the impugned order on 15/06/2023, which is under challenge, vide this revision petition.

                                            Decisions with Reasons

Ld. Advocate for the Revisionist/Bank, at the time of final hearing, had submitted that the cross-examination of the Respondent could not be done for reasons beyond the control of the Revisionist/Bank, as prior to the onset of the Covid 19 pandemic, the cross-examination could not be done due to lack of quorum and thereafter on many dates, the Ld. Forum could not function due to Resolution passed by the Siliguri Bar Association and the Respondent, also had been absent on a number of occasions. On the date of passing of the impugned order, when both the parties had been present the Ld. DCDRF, Siliguri, Suo moto passed the impugned order. Thus, the Ld. Forum had committed an illegality by recalling the order, as the Ld. Forum did not have power of review, except on an error apparent on the face of the record, u/s 40 of the Consumer Protection Act, 2019. Hence, it was prayed that the order be set aside.

Ld. Advocate for the Respondent, on the other hand, had countered the above argument, by submitting that the Revisionist/Bank, had failed to cross examine, despite numerous opportunities and the order had been recalled, on the basis of the petition filed by the Respondent, vide order dated 24/04/2023. He, therefore, submitted that the impugned order be upheld.

After hearing the parties and ongoing through the Confonet Copies of the Order-Sheet, it transpires that the prayer for cross-examination of the Respondent, had been allowed vide order dated 08/02/2018 and thereafter the date had been fixed on 19/03/2018, but the cross-examination could not take place due to lack of quorum and the next dates had been fixed on 26/04/2018, 06/06/2018 and 12/07/2018, when also there had been no quorum. The next date had been fixed on 11/09/2019, when it was found that the Respondent’s evidence in Court had not been filed and the next date had been fixed on 05/12/2018, when the Respondent had filed the evidence on affidavit, but the Revisionist had been absent without any steps. The next date had been fixed on 01/02/2019, when again the Revisionist/Bank had prayed for adjournment and the next date had been fixed on 29/04/2019. On 29/04/2019, the Case was adjourned due to Resolution by the Siliguri Bar Association and the next date had been fixed on 21/06/2019. On 21/06/2019 again, the Revisionist/Bank had prayed for time to cross examine the Respondent, as last chance and the date had been fixed on 07/08/2019. On 07/08/2019, the Case could not proceed due to lack of quorum and the date had been fixed on 21/08/2019, when again the Case could not proceed due to lack of quorum and the date had been fixed on 04/11/2019, when a holiday had been declared by the State Government on the occasion of Chat Puja and the next date had been fixed on 12/12/2019, but again there was no quorum on 12/12/2019 and the Case had been fixed on 26/12/2019, but on that date also, the Case could not proceed with the remark ‘no time today’ and the next date had been fixed on 07/02/2020. From 07/02/2020 to 02/04/2020 the Case proceeding was not updated and the date had been fixed on 27/04/2020. On 27/04/2020, also the Case had been adjourned to 19/01/2021 and on 19/01/2021 also, the Case could not proceed due to Resolution passed by the Siliguri Bar Association on 05/01/2021 and the date had been fixed on 05/02/2021 and on 05/02/2021, also the cross-examination of the Respondent could not take place and the date had been fixed on 03/03/2021. On 03/03/2021 again the Revisionist prayed for time and the date had been fixed on 04/05/2021. On 04/05/2021, record could not be put up and the date had been fixed on 23/11/2021. On 23/11/2021 the Respondent was not present and the date had been fixed on 10/01/2022 and the record could not be put up due to closure of office for spreading of Covid 19 and the next date had been fixed on 27/04/2022. On 27/04/2022, also cross-examination could not be done and the next date had been fixed on 24/05/2022. On 24/05/2022, the Respondent had submitted a petition, even though the Case could not proceed due to the Resolution, passed by the Siliguri Bar Association and the next date had been fixed on 15/07/2022 and on 15/07/2022, the cross-examination could not take place, as no step was taken by the Revisionist/Bank’s side and the next date had been fixed on 08/09/2022. On 08/09/2022, also the Case could not proceed, due to the Resolution, passed by the Siliguri Bar Association and the next date had been on 16/12/2022. On 16/12/2022, the Revisionist did not take steps, for which the Case was adjourned to 15/02/2023. On 15/02/2023, also the cross-examination could not take place following the prayer for adjournment and the Case had been adjourned to 24/04/2023. On 24/04/2023, the Respondent filed the petition for cancellation of the cross-examination facility, allowed to the Revisionist/Bank and the Revisionist/Bank had also filed a prayer for adjournment and the Case had been adjourned to 19/05/2023. On 19/05/2023, the cross-examination could not take place and the Case had been adjourned to 15/06/2023. On 15/06/2023 the impugned order had been passed denying the cross-examination on dock and the parties had been directed to submit their Questionnaires and the next date had been fixed on 13/07/2023.

Therefore, from the above findings, it should not be forgotten, that the Respondent was present except on one occasion i.e., on 23/11/2021, was subjected to the ordeals, undergone by him for such a long period of time, simply to claim compensation for the valuable items kept by him in a locker, against payment of monthly rentals. On the other hand, the Revisionist/Bank on numerous occasions, failed to cross examine the Respondent, benefitting from the lacuna committed on the part of the Ld. Forum, when there was no quorum. Moreover, this application had been filed under the provisions of Section 47(1) of the Consumer Protection Act, 2019 which was also available under Section 17(1)(b) of the Consumer Protection Act, 1986, whereas in the WNA the Ld. Advocate for the Revisionist had sought for a relief u/s 40 of the Consumer Protection Act, 2019, whereas the power of review was not available under the provisions of the Consumer Protection Act, 1986. Since the power was not conferred by the Legislature directly or by implication, the same is not available  to the Revisionist/Bank, in the instant Case. As far as the facts noted above are concerned, the Ld. DCDRF had committed no error or illegality by passing the impugned order, considering the Revisionist/Bank’s erratic demeanor. On the contrary, the Ld. DCDRF, Siliguri would have committed an illegality, had it not passed the impugned order, as it could have failed to exercise the jurisdiction vested upon it. In any case, no prejudice would be caused to the Revisionist/Bank, as the opportunity to cross-examine, had been modified, with the direction for filing questionnaires, in the impugned order. Thus the impugned order, does not suffer from any illegality or irregularity As a result, the instant revision is bound to fail.

                              It is therefore,

                                                          ORDERED

That the instant revision be and the same is dismissed on contest, with cost of Rs.5000/- (Rupees five thousand) only, to be payable to the Respondent, within 45 days from the date of receipt of this order. 

The impugned order is hereby upheld.

Copy of the order be sent to the parties, free of cost.

Copy of the order be sent to the Ld. DCDRF, Siliguri, for necessary information and action.