Meghalaya

StateCommission

MA/09/2014

Union of India - Complainant(s)

Versus

Smti. Sunita Khuller - Opp.Party(s)

S. C. Shyam

26 Sep 2014

ORDER

 

 

MEGHALAYA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

SHILLONG

 

Misc Case No. 9 of 2014

in F.A No. 10 of 2013

 

BEFORE

 

Hon’ble President: Mr. Justice P.K. Musahary (Retd.)

Hon’ble Senior Member: Mr. Ramesh Bawri

 

 

1. Union of India

     Represented by:-

     The Secretary to the Government of India

     Ministry of Post

     New Delhi

 

2. Senior Superintendent of Post Offices,

     Meghalaya Division, GPO

     Shillong - 793001

 

                                                                 ………Applicant/Appellants

Versus

                                   

      Smti Sunita Khullar

      Merita Cottage,

      Upper Lachumiere

      Shillong- 793001.

                                                          …...Opposite Party/ Respondent         

 

 

      For the Appellant                       :           Mr. B. Deb, Advocate 

                                                             

For the Respondent                  :           Nemo

 

Date of Order                              :           17.10.2014

 

Whether to be Reported           :           Yes    

 

 

ORDER

 

Per : Shri Ramesh Bawri, Senior Member : This is an application filed by the Appellant in F.A No. 10 of 2013 praying for recalling/ setting aside the order dated 22.08.2014 passed by this Commission, dismissing the Appeal for default. We have heard Shri. B. Deb, learned counsel for the Appellants. For disposal of this Application we need not delve into the merits of the Appeal and suffice it is to say that the Opposite party herein (Respondent in the Appeal) filed a Consumer Complaint No. 53 of 2012 before the learned District Forum, Shillong seeking compensation for short delivery in the parcels booked to her from Amritsar by registered post, the parcels having been tampered with.

 

2.         Upon hearing the parties the learned District Forum found that the Applicants/ Appellants were negligent in handling the parcels and vide order dated 11.10.2013, awarded a sum of Rs. 29,585/- being the value of the missing items along with 5000/- as compensation for the harassment caused to the Complainant. Aggrieved by this order, the Applicant filed an Appeal before this Commission.   

 

3.         The chequered history of the Appeal has been referred in the order dated 22.08.2014 passed by this Commission which is reproduced below in toto:

 

“ No authorized counsel has appeared for the Appellant. The Respondent is present in person and states that she has not only been harassed by the negligence and deficiency in service on the part of the Appellants but also by their dilatory tactics, both before the learned District Forum and this Commission  for over one and a half year since they filed the related Complaint No.53/2012. She therefore prays that the Appeal be dismissed.      

                             

Upon perusal of the records we find that the instant appeal was filed on 06.12.2013, without making the Statutory Deposit. On 07.12.2013 when the Appeal was fixed for admission, learned counsel for the Appellant prayed for an adjournment. Again on 31.01.2014, adjournment was sought for by the Appellant. Even as on 28.02.2014 the Statutory Deposit was found to have not been made by the Appellant. Another adjournment was prayed for on the next date i.e, 14.03.2014 by the Appellant’s counsel and duly granted. Again on 28.03.2014 the Appellant sought for two weeks time to make the Statutory Deposit. The Statutory Deposit of Rs. 28,585/- was made thereafter and on 25.04.2014, operation of the impugned order was suspended. Thereafter when the matter was posted for hearing on 25.07.2014 once again 3(three) weeks adjournment was sought by the Appellant which was granted and the hearing fixed for today i.e. the 22.08.2014.

 

As noted above, even today no authorized counsel has appeared before us for the Appellant although the Respondent is present in person.

 

Under the circumstances narrated above, we are of the view that the Appellant is not diligent in pursuing the Appeal and is taking the matter very lightly, especially having obtained an order for suspension of the operation of the impugned order. This is adding to the harassment of the Respondent who has been appearing in person.

 

We therefore deem it fit and proper to dismiss the Appeal which we hereby do.

In the result, the Appeal stands dismissed. “                                

 

4.         Records will show that a Vakalatnama was filed along with the Memo of Appeal whereby Miss Zonunmawii was appointed as the authorized Advocate for the Appellants, led by Shri. S.C. Shyam, learned Senior counsel. On earlier occasions Shri. B. Deb, Advocate had appeared before us to seek adjournment in the case but it was neither stated by him nor noticed by us that he was not the authorized counsel for the Appellants and there was no Vakalatnama on record in his favour. On 22.08.2014 when he again sought further adjournment we happened to check the records and having found him  appearing without due authority asked him pointedly whether he had been given any such authority by the Appellants to which his reply was a categorical ‘No’. It was under these circumstances coupled with the lack of diligence on the part of the Appellants narrated above and the absence of any written prayer seeking adjournment on the part of the Appellants or their authorized counsel that we passed the order dated 22.08.2014 dismissing the Appeal for default.

 

5.         The Applicant has now filed the instant Application praying that the order dated 22/08/2014 be recalled/set aside on the following grounds which are quoted below verbatim:

 

1. That the FAO No. 10 of 2013 was posted for filing of written argument on behalf of the Petitioners/ Appellants on 22.08.2014 that the written argument on behalf of the petitioners / appellants were prepared on basis of the parawise comments furnished by the Senior Superintendent Post Offices, Meghalaya Division, Shillong.

 

2.  That due to the bonafide mistake the junior advocate of the Central Government Counsel erroneously submitted before the Hon’ble Commission that the affidavit in opposition in response to the written submission is to be signed by the Appellant and prayed for adjournment of the hearing.

 

6.         As stated, we have heard Shri B.Deb, Advocate who has filed his Vakalatnama along with the Application, only now, for the first time. The grounds/submissions quoted above are not borne out by the records. Our last order dated 25/07/2014 immediately prior to the order dated 22/08/2014 reads as follows:

 

“As submitted by Mr. B. Deb, learned counsel for the Appellant that Mr. S. C. Shyam, learned senior counsel for the Appellant is indisposed. He therefore prays for 3 weeks adjournment. Mrs. Sunita Khuller is present before the Commission. She has raised objection to the prayer for adjournment for 3 weeks. The Respondent has filed written submission. She submits that in case she cannot turn up on the next date fixed for hearing, the written submission may be considered by the Commission. In the interest of justice, we adjourn this case till 22.08.2014 for hearing.”

 

7.         It will thus be clear from the above that 22/08/2014 was fixed for hearing of the Appeal and not for filing of written arguments as alleged by the Applicants in their application. Our order dated 22/08/2014 will further clearly show that the Appeal was dismissed for the reason that “even today no authorized counsel has appeared before us for the Appellant.” Therefore, in the absence of any valid ground and explanation for the real cause of default, the application is itself meritless.

 

8.         That apart, it is well settled that it is only the Hon’ble National Commission that is endowed with powers to recall its orders in cases which are dismissed for default and the State Commissions and District Forums can exercise no such powers under the Consumer Protection Act, 1986. The relevant section 22A of the Consumer Protection Act which reads as follows itself makes this position of law very clear:

 

“ 22 A  - Power to set aside ex parte orders – Where on order is passed by the National Commission ex parte against the opposite party or a complainant, as the case may be, the aggrieved party may apply to the Commission to set aside the said order in the interest of justice”.

 

9.         Furthermore, we are duty bound to follow the dicta of the 3-Judge bench of the Hon’ble Supreme Court which has unequivocally held to the same effect in Rajeev Hitendra Pathak & Ors vs Achyut Kashinath Karekar & Anr [(2011) 9 SCC 541]. We quote below the relevant paragraphs:

 

“35.     We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned counsel for the parties.

 

36.  On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not  been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be excercised.

 

37. The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court.  The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly.

 

38. In our considered opinion, the decision in  Jyotsna’s Case [(1999) 4 SCC 325] laid down the correct law and the view taken in the later descision of this Court in New India Assurance Co. Ltd. is untenable and cannot be suatained.”

 

10.       This judgment was further echoed by the Hon’ble National Commission in The Dean, Chhatrapati Shivaji Maharaj Hospital Vs Ramesh Gaikwad, (Revision Petition No. 2924 of 2012.) wherein it held as follows:

 

“The appeal filed before the State Commission was dismissed in default because of non appearance.

 

There is no provision for review by the District Forum or State Commission. The authority of the Hon’ble Supreme Court in Rajeev Hitendra Pathak’s case had come in August, 2011. It was the duty of the counsel for the petitioner to withdraw the application for restoration immediately. The delaying tactics in this case are apparent.”

 

11.       It may be stated here that in New India Assurance Co. Ltd. Vs R. Srinivasan (2000) 3 SCC 242 (para 18) a 2- Judge Bench of the Hon’ble Apex Court had earlier held:

 

“We only intend to invoke the spirit of the principle behind the above dictum in support of our view that every court or judicial body or authority, which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the Complainant who had instituted the proceedings. That is not the function of the court or, for that matter of a judicial or quasi-judicial body. In the absence of the Complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non-appearance of the Complainant.”

 

12.       In view of the above discussion we are unable to entertain the present application and have no option but to dismiss it in limine.

 

The application stands disposed of as dismissed. No costs.

 

 

 

 

            SENIOR MEMBER                                              PRESIDENT