KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

REVISION PETITION No. 67/2023

ORDER DATED: 20.09.2023

(Against the Order dated 10.04.2023 in IA Nos. 317/2022, 318/2022 and 393/2022 in C.C. 221/2018 of CDRC, Kollam)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN     : PRESIDENT

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

REVISION PETITIONER:

Regional Manager, Bajaj Finance Ltd., Edappally, Cochin represented by its Authorized Officer, Anees B.R., S/o Basheer A., T.C 81, Blue Star Arcade, Manjalikulam Road, Thampanoor, Thiruvananthapuram-695 001.

(By Adv. P. Balakrishnan)

                                                Vs.

RESPONDENTS:

1. Suni S., Surya Bhavan, Panayanchery, Anchal P.O., Pathanapuram Taluk, Kollam-601 306.

2. Ajith, Team Leader, Sarathy Bajaj, Sarathy Motors, Kottarakkara.

3. Branch Manager, Sarathy Bajaj, Sarathy Motors, Kottarakkara.

4. Lijo, Sales Executive, Sarathy Bajaj, Sarathy Motors, Kottarakkara.

5. Unni, Bajaj Finance, Kottarakkara.

ORDER

SRI. RADHAKRISHNAN. K.R: MEMBER

This revision petition is filed by the 5^th opposite party under Sec. 47(1)(b) of the Consumer Protection Act, 2019 against the order dated 10.04.2023 in the Interlocutory Application Nos. 317/2022, 318/2022 and 393/2022 in C.C. No. 221/2018 of the Consumer Disputes Redressal Commission, Kollam (District Commission for short).  As per the order, the District Commission dismissed the I.As.  Revision Petitioner is aggrieved by the said order and has filed this revision.

2. The three I.As were filed by the 5^th opposite party in the complaint, since he was declared ex-parte by the District Commission on 15.09.2021.  I.A. No. 317/2022 was filed for acceptance of his version.  I.A No. 318/2022 was filed to set aside the ex-parte order passed against him and I.A No. 393/2022 was filed to review the order dated 15.09.2021. Common order in the IAs is challenged by the Revision Petitioner.

3. We have heard the learned counsel for the revision petitioner. He submitted that the three I.As filed by the 5^th opposite party/revision petitioner were dismissed by the District Commission by a common order dated 10.04.2023.  According to him, notice dated 09.12.2019 was issued to the 5^th opposite party/revision petitioner to appear before the District Commission on 14.01.2020.  There was no direction to file the version on that date.  The revision petitioner received another notice dated 04.02.2022 which directed him to give evidence on 22.02.2022.  On 07.02.2020 the case was posted to 28.03.2020 for filing version of the 5^th opposite party/revision petitioner.  But because of the peculiar circumstances due to Covid-19 pandemic from 15.03.2020, the petitioner could not file his version.  Despite the Covid-19 pandemic situation the District Commission set the revision petitioner ex-parte on 15.09.2021. The IAs were filed on 04.08.2022.  The District Commission dismissed the IAs without considering the fact that the time limit for filing version stood excluded as per the order of the Supreme Court in the Suo Motu WP(C) No. 3/2020  as reported in ILR 2022(I) Kerala 447, for the period from 15.03.2020 till 28.02.2022. According to the counsel the District Commission failed to consider the said order of the Apex Court regarding exclusion from limitation, which is applicable in any judicial or quasi-judicial proceedings, by declaring him ex-parte and thereafter by refusing to accept the version filed along with the IA.  The learned counsel argued that, no reasonable opportunity was afforded to the revision petitioner to put forward his case before the District Commission. There was no wilful negligence or delay on his part in filing the version in time.  It was submitted that the revision petitioner has cogent evidence to prove his case and therefore, it is necessary that an opportunity is provided to him to place and prove his case.  There is no deficiency or unfair trade practice on the part of the revision petitioner.  The learned counsel for the revision petitioner prayed to allow the revision petition and set aside the impugned order of the District Commission and direct the District Commission to accept the version of the revision petitioner.

4. We have considered the submissions made by the learned counsel for the Revision Petitioner and examined the records.  The learned counsel admitted having received the notice. Proceedings reveal that Revision Petitioner/5^th opposite party appeared before the District Commission on 14.01.2020.  He was set ex-parte on 15.09.2021. The IAs were filed only on 04.08.2022. The contention of the learned counsel is that due to the Covid-19 pandemic and the consequent dislocation, the revision petitioner could not appear before the District Commission and prosecute the case in time. We observe that the IAs were filed much after the period allowed for exclusion of limitation period due to Covid-19 pandemic as per the direction of the Apex Court.

5. It is stated in paragraph 2 of the order of the District Commission as under:

“2. It is duly noted that the 5^th opposite party was impleaded as a party to the case on 14.01.2020 and they appeared on the same day.  However, despite being given the opportunity to submit their version, the 5^th opposite party did not file any version.  As a result, on 08.06.2021, it was decided to proceed with the case without their version, and the case was scheduled for the recording of evidence.  Subsequently, on 15.09.2021, since the version was still not filed, opposite parties 3 to 5 were declared as ex-parte.”

 From the above, it is evident that the revision petitioner/5^th opposite party was impleaded as additional opposite party on 14.01.2020 and they appeared on the same day.  It is observed that the notice for appearance was issued on 09.12.2019.  As is evidenced from the proceedings dated 14.01.2020, the 5^th opposite party was directed to file the version on 07.02.2020.  The proceedings dated 14.01.2020 is reproduced below:

“14.01.2020: IA 315/19 allowed.  Additional 5^th impleaded.  Carry out impleadment.  Additional 5^th enters appearance.  For filing version of Additional OP5 to 07.02.2020.”

It is evident from the above that the revision petitioner was required to file the version within thirty days from 14.01.2020. Statutory time limit for filing written version was over even before the relaxation due to Covid-19 pandemic was available. Exclusion from limitation period due to spread of Covid-19 pandemic as per the order of the Supreme Court in Suo Motu Writ Petition (C) No. 03/2020 was available from 15.03.2020 only. Hence the argument that the version was not filed in time because of the circumstances prevailing  due to  the spread of Covid-19 pandemic and seeking exclusion from limitation period as per the order of the apex court is not tenable.  Hence we do not find any infirmity in the order of the District Commission declaring the revision petitioner/5^th opposite party as exparte.

6.   As is evident, the revision petitioners/5^th opposite party has not filed version within the statutory period as per the relevant provisions of Consumer Protection Act, 2019 and hence he was declared ex-parte by the District Commission. Absolutely, no evidence has been produced by the revision petitioner to show that the proceedings of the District Commission are erroneous in any manner.  The order of the District commission is as per section 38(3) (b)(ii) of the Consumer Protection Act, 2019, which is reproduced below:

“38 (3) The District commission shall, if the complaint admitted by it under sub-section (2) of section 36 relates to goods in respect of which the procedure specified in sub-section (2) cannot be followed, or if the complaint relates to any services,-

(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District commission;

(b): if the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District commission, it shall proceed to settle the consumer dispute –

1. on the basis of evidence brought to its notice by the complainant and the opposite party, if the opposite party denies or disputes the allegations contained in the complaint, or
2. ex-parte on the basis of evidence brought to its notice by the complainant, where the opposite party omits or fails to take any action to represent his case within the time given by the Commission.”

In view of the above specific provision, we do not find any error in the order of the District Commission. The ex-parte order dated 15.09.2021 of the District Commission is as per the provisions of the Act and consequently we do not find any reason to interfere with the proceedings of the District Commission in the common order in the IAs under challenge. 

7. Further, this is a case in which no version has been filed by the revision petitioner, though revision petitioner had received notice from the District Commission.  Therefore, in view of the dictum laid down by the Constitution Bench of the Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757, it is not possible for them to file a written version now.  For the above reason, there is no point in admitting this revision or calling for the Lower Court Records.

8. We do not find any material irregularity or jurisdictional error warranting interference of this Commission under its revisional jurisdiction. There is no merit in the contentions put forward by the Revision Petitioner.

9.  For the foregoing reasons, we find no grounds to admit this Revision Petition or to grant any of the reliefs sought for.

          This revision fails and is accordingly dismissed.  No costs.

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                   AJITH KUMAR D.: JUDICIAL MEMBER

                                                                                                    BEENA KUMARY. A         : MEMBER

                                                                                                   RADHAKRISHNAN K.R.  : MEMBER

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