PER JUSTICE R.C. JAIN (ORAL)

1.       Aggrieved by the order dated 18.10.2006 passed by the A.P. State Consumer Disputes Redressal Commission, Hyderabad (for short the State Commission) in First Appeal No. 751 of 2004, M/s Ashok Leyland Finance Ltd. and others [Opposite Parties in the complaint before the District Forum, Godavari (for short the District Forum)] have filed the present petition purportedly under Section 21(b) of the Consumer Protection Act, 1986.  The appeal before the State Commission was filed by the original complainant against the order dated 30.04.2004 passed by the District Forum in CD No. 198 of 2003, by which order the District Forum had dismissed the complaint of the respondent/complainant, however, with liberty to the respondent/complainant to approach the appropriate forum for redressal of his grievance.  The State Commission not only allowed the appeal and set aside the order passed by the District Forum but considered the merits of the complaint and partly allowed the same by giving a direction to the petitioner herein to return the Hero Honda two wheeler motorcycle to the respondent/complainant, besides refunding a sum of Rs.4584/- to the respondent/complainant with interest @ 9% per annum from the date of filing of the complaint till realization.

2.       The facts which led to the filing of the complaint are amply noted in the orders of the fora below and need no repetition at our end.  The consumer dispute raised in the complaint related to forcible possession of a motorcycle purchased by the respondent/complainant after obtaining financial assistance from the petitioner allegedly due to non-payment of the installments.  The complaint was resisted on a variety of pleas.

3.       We have heard the counsel for the petitioner but had not the advantage of hearing the say of the respondent/complainant as despite sufficient opportunities made available to the respondent/complainant, he remained unrepresented on record and had been sending communications one after the other seeking indulgence of this Commission expressing his inability to appear.  This is a 2007 petition and can no longer wait its decision simply because the respondent/complainant has not been able to make arrangement for his representation in this Commission despite sufficient opportunities granted to him.

4.       Learned counsel for the petitioner would assail the impugned order passed by the State Commission primarily on the ground that even if the State Commission had come to conclusion that the kind of dispute raised by the respondent/complainant before the consumer fora should have been decided by the consumer fora, the State Commission ought to have remanded the complaint to the District Forum for deciding the same in accordance with law rather than trying the complaint itself.  There appears to be force in the contention because once the matter is answered by a trial court on a legal/technical ground without going into the merits of the matter and the appellate authority comes to the conclusion that the law point was incorrectly decided, then ordinarily the appellate court should remand the matter to the trial court/forum for deciding the matter on merits.  The appellate court cannot take over the functions of the trial court/forum itself because it is likely to prejudice the parties, as they would lose the right of first appeal, which is ordinarily available to the parties to challenge the order passed by the District Forum.  Though we are in full agreement with the finding of the State Commission that the complaint as filed by the respondent/complainant was entertainable and could be decided by the District Forum in exercise of its summary jurisdiction, yet we cannot approve the course adopted by the State Commission in deciding the complaint itself on merits and granting certain reliefs to the respondent/complainant.  This has seriously prejudiced the interest of the petitioner and can be said to have resulted into miscarriage of justice.

5.       The revision petition is, accordingly, allowed and the impugned order so far as it has partly allowed the complaint filed by the respondent/complainant is hereby set aside and the complaint is remitted to the board of the concerned District Forum for deciding the same afresh after affording due opportunity to the parties in accordance with law.  The parties are directed to appear before the District Forum on 30.10.2012.  We make it clear that we have not expressed any opinion on the merits of the complaint.