KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

REVISION PETITION No.45/2018

ORDER DATED: 01.02.2024

(Against the Order in I.A.No.233/2018 in C.C.No.377/2016 of DCDRC, Malappuram)

PRESENT:

REVISION PETITIONER/1^st OPPOSITE PARTY:

(by Adv. Narayan R.)

Vs.

RESPONDENTS/COMPLAINANT/2^nd OPPOSITE PARTY:

(by Adv. Sheeba Jaffer Sait)

O R D E R

SRI. AJITH KUMAR  D.  : JUDICIAL MEMBER

          This Revision Petition is filed under Section 17(1)(b) of the Consumer Protection Act, 1986 r/w Rule 24 of the Kerala Consumer Protection Rules, 2005 and Regulation 7 of the Consumer Protection Regulations, 2005 against the order in I.A.No.233/2018 in C.C.No.377/2016 on the file of the District Consumer Disputes Redressal Commission, Malappuram (the District Commission for short).

          2.       The Revision Petitioner is the 1^st opposite party in C.C.No.377/2016.  He had filed a petition as I.A.No.233/2018 seeking permission of the Commission to cross examine the complainant.  But as per the order dated 03.10.2018, the District Commission had rejected the request made by the Petitioner by restricting the Petitioner to file interrogatories for clarifications on the disputed points.  Being aggrieved by the aforesaid order the Revision has been filed.

          3.       The case of the complainant is that he is the Proprietor of a concern by name Suntech Solar Systems who decided to purchase colour printers, colour scanner and colour photocopy machine from the 1^st opposite party after availing a loan through the 2^nd opposite party.  The loan was arranged through a person by name Dineshan.  The total cost was Rs.2,48,600/-(Rupees Two Lakhs Forty Eight Thousand Six Hundred only) out of which complainant had paid an advance amount of Rs.49,720/-(Rupees Forty Nine Thousand Seven Hundred and Twenty only).  The 1^st opposite party had directed the complainant to wait till stock comes.  When delay occurred he made enquiries with the 1^st opposite party and came to know that the printer was already handed over to Dineshan and there is no stock of the remaining items.  The remaining items would be delivered directly to the complainant.  Dineshan was not authorised to receive the machines.  There was collusion between opposite parties and Dineshan.  So the complainant wanted the 1^st opposite party to provide all the items specified in the quotation or in the alternative to return the amount spent by him.

          4.       The Revision Petitioner had filed version by denying the case of the complainant.  The contentions in the version are discussed below :

The complainant is not a consumer and the quotation was issued in the name of Suntech Solar Systems.  The complainant never approached the opposite party.  It was Dineshan who came to the opposite party, demanded the quotation and paid the advance.  Dineshan also informed the opposite party that since the work of the shop is still going on he needs to take only the colour photostat machine and the other items could be taken later.  He sought for return of the balance amount and hence Rs.99,000/-(Rupees Ninety Nine Thousand only) was paid to Dineshan by way of a cheque.  The opposite party had dealings only with Dineshan who represented himself as the owner of Suntech Solar Systems.  According to the Revision Petitioner, complex questions of law and facts are involved in the matter. When the Locus Standi of the complainant is disputed denial of an opportunity for cross examination is unfair, unjust and improper.  The District Commission never passed a speaking order.  Hence, the Revision Petitioner would seek for setting aside the order passed by the District Commission.

          5.       The records from the District Commission were called for.  The complainant is the 1^st respondent in the Revision Petition.  Notice issued to the complainant was returned with an endorsement “refused”.  Service of notice to the 1^st respondent was found adequate. 

          6.       The 2^nd respondent entered appearance.  Heard the counsel for the Petitioner and the 2^nd respondent.  Perused the records.

          7.       For conducting the trial as per Section 13 Sub Section (4), the District Commission shall have the same powers as vested in a Civil Court while trying the suit in respect of the matters in dispute.  Here, the Revision Petitioner had set up a case that the actual transaction was between Dineshan and the Revision Petitioner. For proving the contention of the Revision Petitioner, it was decided to obtain leave from the District Commission for cross examination of the complainant.  For that purpose, I.A.No.233/2018 was filed by the Revision Petitioner.  On going through the pleadings contained in the complaint, the version filed by the Revision Petitioner and the affidavit in lieu of chief examination filed by the complainant it is found just and proper to provide an opportunity to the Petitioner for cross examination of the complainant so as to bring out the real facts before the District Commission.  Depriving a litigant to avail an opportunity to impeach the credibility of the rival party through the test of cross examination would defeat the interest of justice.  By issuing a cryptic order the District Commission has arbitrarily declined an opportunity to the Petitioner.

8.       We find that the Petitioner should have been given a chance to cross examine the complainant so as to elicit the real controversy involved in the matter before the District Commission.  The discretion was exercised by the District Commission in an arbitrary manner.  So it is liable to be reversed.

In the result, Revision Petition is allowed, the order in I.A.No.233/2018 is set aside.  I.A.No.233/2018 is allowed.  The Revision Petitioner is permitted to cross examine the complainant.  The matter is remanded back to the District Commission with a direction to allow the Revision Petitioner to cross examine the complainant.

SL