KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

REVISION PETITION No.01/2023

ORDER DATED:03.02.2023

(Against the Order in C.C.No.13/2021 of DCDRC, Ernakulam)

PRESENT:

REVISION PETITIONER/OPPOSITE PARTY:

(by Advs. S. Reghukumar & Surya J.)

Vs.

RESPONDENT/COMPLAINANT:

O R D E R

HON’BLE JUSTICE K. SURENDRA MOHAN: PRESIDENT

          The opposite party in C.C.No.13/2021 of the District Consumer Disputes Redressal Commission, Ernakulam (hereinafter referred to as the District Commission for short) is in revision.  According to the Revision Petitioner the order dated 26.11.2022 of the District Commission in Review Petition No.11/2022 is unsustainable and liable to be set aside.  The respondent herein is the complainant before the District Commission.  The parties shall be referred to in accordance with their status before the District Commission.

          2.       The complainant had filed the complaint alleging deficiency in service and unfair trade practice on the side of the opposite party.  He had purchased two Cup Hanger Making Machines for a price of Rs.6,25,000/-(Rupees Six Lakhs Twenty Five Thousand) in the year 2018.  The allegation was that the machines were defective.  In the complaint, notice was issued to the opposite party on 04.02.2021.  On 05.03.2021 the opposite party appeared in person and was also represented before the District Commission.  The opposite party then filed a petition I.A.No.78/2022 questioning the maintainability of the complaint.  The petition was heard on 10.03.2022 and dismissed.  The case was thereafter posted to 09.05.2022.  On the said date, there was no representation for the opposite party.  No version was also filed.  Therefore, the opposite party was called absent and set exparte.

          3.       The opposite party then filed I.A.No.255/2022 praying for setting aside the exparte order.  Finding no merit in the said petition, the same was dismissed by the District Commission.  The opposite party then filed R.P.No.11/2022 seeking a review of the orders passed against him by the District Commission.

          4.       It was contended that the District Commission had no power to set the opposite party exparte under Section 38 of the Consumer Protection Act, 2019 (the Act for short).  Reliance was placed on a Judgement of our Hon’ble High Court in 2009 (1) KLT 544.  It was held in the said decision that an opposite party was entitled to participate in the proceedings and contest the case on the merits, irrespective of the fact that he had been set exparte on a previous posting date.  Placing reliance on the said decision, it was contended that the order of the District Commission setting the opposite party exparte was liable to be set aside.

          5.       The District Commission considered the contention of the parties and dismissed the review petition placing reliance on the Constitution Bench of the Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757.  This revision is filed against the said order.

          6.       This revision is posted before us for admission.  We have heard the counsel for the Revision Petitioner at length.  It is vehemently contended that the District Commission had no power to set the opposite party exparte for the only reason that version had not been filed.  It is also contended that the District Commission had not interpreted the dictum laid down by the Hon’ble High Court of Kerala in the decision reported in 2009 (1) KLT 4.

          7.       We have considered the contentions urged by the counsel for the Revision Petitioner, anxiously.  It is not in dispute that the Revision Petitioner had received notice in C.C.No.13/2021 and had appeared before the District Commission on 05.03.2021.  Thereafter, the question of maintainability of the complaint raised by the Revision Petitioner was decided by the District Commission holding that the complaint was maintainable.  The order was passed on 10.03.2022.  Thereafter, the case was posted to 09.05.2022.  On 09.05.2022, finding that no version had been filed, the Revision Petitioner/opposite party was set exparte.  It has been held by the Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (supra) that, neither the District Commission nor the State Commission has the power to extend the time limit for filing version beyond the statutory time limit of thirty days which may be extended by a further period of fifteen days only.  In this case no such extension was granted by the District Commission.  In such a case, the proper course to be adopted is to proceed to decide the complaint exparte, on the basis of the evidence produced by the complainant.  It is the said course that has been adopted by the District Commission in this case.  In view of the above binding dictum of the Apex Court the order of the District Commission cannot be find fault with.  Therefore, we do not find any grounds to admit this revision or to grant any of the reliefs sought for.

          This Revision Petition is accordingly dismissed.  No costs.

SL