Chandigarh

StateCommission

RP/21/2024

ASHU DAHUJA - Complainant(s)

Versus

KETAN KUAMR - Opp.Party(s)

JITENDER VERMA

06 May 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[ADDITIONAL BENCH]

============

Revision Petition No.	:	RP/21/2024
Date  of  Institution	:	02/04/2024
Date   of   Decision	:	06/05/2024

 

 

 

 

 

1.   Ashu Dahuja, Plot No. 375, Industrial Area, Phase-I, Panchkula – 134113.

 

2.   Manager, Berk Auto Zone LLP, Plot No. 375, Industrial Area, Phase-I, Panchkula – 134113.

 

…… Petitioners

 

V E R S U S

 

1.   Ketan Kumar son of Sh. Ajay Kumar, resident of House No. 3070, Sector 46-C, Chandigarh.

 

…… Respondent

 

2.   TATA AIG General Insurance Company Limited, through its Director SCO 127-128, 1^st Floor, Sector 9-D, Chandigarh.

…… Proforma Respondent

 

BEFORE:   MRS. PADMA PANDEY       PRESIDING MEMBER

          PREETINDER SINGH        MEMBER

 

PRESENT

:

Sh. Gagandeep Singh, Advocate for the Petitioners. Sh. Gurnoor Singh, Advocate for the Respondent

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

This Revision Petition is filed against the order dated 03.01.2024, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (for brevity hereinafter to be referred as the “Ld. Lower Commission”) in Consumer Complaint bearing No.CC/544/2023, whereby the Opposite Parties No.2 & 3 (Petitioners herein) were ordered to be proceeded against ex-parte, in the following terms: -

 

“…………… Since the delivery of notice sent to OPs No.2 and 3 has been confirmed on 22.11.2023. Case has been called several times, but none is present today for OPs No.2 and 3 despite service of notice. Therefore, OPs No.2 and 3 are proceeded ex-parte.”

 

The Petitioners/OPs No.2 and 3 by way of present Revision Petition, among others, inter alia, has prayed for the following relief: -

 

“It is, therefore, respectfully prayed that the revision may kindly be allowed and the ex-parte order dated 03.01.2024 qua revisionist/ Petitioners No.2 & 3 may kindly be set-aside and Petitioners be allowed to join the proceedings and contest the complaint on merits while permitting the Petitioners to file written statement as well as evidence in their defence in the interest of justice.”

 

2.     The only issue in this Revision Petition relates to initiation of ex-parte proceedings by the Ld. Lower Commission against Petitioners/ OPs No.2 & 3 on their failure to appear despite due service, thereby closing the right of the Petitioners/OPs No.2 & 3 to file written version. The merits of this case, therefore, need not be discussed.

 

3.     Pursuant to notice, Sh. Gurnoor Singh, Advocate entered appearance on behalf of Respondent No.1 by filing his Vakalatnama and contested the revision petition with vehemence.

 

4.     Heard the Learned Counsel for the contesting parties and carefully gone through the record with utmost care and circumspection.  

 

5.     According to section 38(3)(b)(ii) of the Consumer Protection Act, 2019,(hereinafter referred to as ‘the Act’), the District Commissions are empowered to proceed with a case ex-parte if the opposite party omits or fails to take any action to represent his case within the time given by the Commission. It has been settled by a catena of judgments that the District Consumer Dispute Redressal Commissions do not have the power to set aside the ex-parte orders passed by them. The current trend to ‘overcome this difficulty’ is to file a Revision Petition before the State Consumer Dispute Redressal Commissions seeking to set aside the ex-parte orders passed by the District Commission.

 

6.     In this backdrop, the key controversy swirls around the short question, “whether this Commission has the power to set aside an ex-parte order passed by the District Commission”?

 

7.     Having bestowed our anxious consideration to the matter, we are of the opinion that in the light of the material on record, answer to the question posed has to be in the negative.

 

8.     It is the case of the Petitioners that the they received summon for 14.12.2023 and since the summon was received late, they could not engage counsel in time to defend the consumer complaint and the case was adjourned to 03.01.2024. Thereafter, the Petitioners engaged the counsel for 03.01.2024, but the counsel so appointed could not appear before the Ld. Lower Commission as he was busy in some criminal trial at Panchkula and the Petitioners were of the belief that the matter would be taken care of by their counsel so they did not personally attend the case.   

 

9.     However, we do not find any merit in the limb of argument advanced by Learned Counsel for the Petitioners. Record transpires that notice sent to the Petitioners through speed post on 21.11.2023 was duly served upon them on 22.11.2022 as per tracking report downloaded from website of India Post which showed “item delivered confirmed”. Since service through speed post is a proper service, it cannot be said that the impugned order passed by the Ld. Lower Commission is against the principles of natural justice, as due opportunity was granted to the Petitioners to place and prove their case before passing the impugned order under revision.

 

10.     Pertinently, the scope of Revision under the Act is noteworthy. Even though the word ‘revision’ is not used under the Act, Section 47(1)(b) empowers the State Commission to call for records and pass orders in dispute before the District Commission if it appears to the State Commission that such District Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. When District Commission proceeded Petitioners/OPs No.2 & 3 ex-parte on their failure to appear despite service of notice, it executes the intent of law. Therefore, there is no exceeding exercise of jurisdiction or material irregularity. In such a case, the interference of the State Commission is not warranted.

 

11.     It is thus safe to deduce that Revision Petition against an ex-parte order of Ld. Lower Commission is not maintainable before this Commission in light of the language and objective of the Act. Resultantly, the Revision Petition fails and is accordingly, dismissed with no order as to cost.

 

12.     The pending application(s), if any, stand disposed off accordingly.

 

13.     Complete record along-with certified copy of this order be sent to the Ld. District Commission-II, U.T., Chandigarh immediately.

 

14.     Certified copies of this order be sent to the parties free of charge.

 

15.     The file be consigned to Record Room, after completion.

Pronounced

06^th May, 2024

               Sd/-

                                  (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”