Complaint filed on: 12-11-2019

                                                      Disposed on: 11-08-2021

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

CC.No.174/2019

DATED THIS THE 11^th DAY OF AUGUST, 2021

PRESENT

SRI.C.V.MARGOOR, B.Com, L.L.M, PRESIDENT

SRI.KUMARA.N, B.Sc., L.L.B, MEMBER

SMT.NIVEDITA RAVISH, B.A., L.L.B, LADY MEMBER

Complainants: -       

1. B. Shiva Kumar

S/o K.G. Basavaraj Biligere,

Aged about 60 years

2. Smt. Prameela Kuram Kote Nataraj  W/o B. Shiva Kumar,

Aged about 56 years

Both are residing at

Behind V.S. Bhavan, Maruthinagar, Tumkur.

(By Sri.G.Nagaraj, Advocate)

V/s

Opposite party:-       

                                                The Manager,

                                                Make My Trip India Pvt. Ltd

                                                18^th Floor Tower A, B and

                                                19^th Floor Tower

                                                A.B.C. Building No.5,

                                                DLF Cyber City, DLF Phase III,

                                                Guragon-122002, Haryana,

                                                India.

 (By Sri.T.Vinay Kumar, Advocate)

ORDER ON THE APPLICATION OF THE COMPLAINANT DATED 22-10-2020 FILED UNDER SECTION 151 OF CPC.

SRI. KUMARA.N, MEMBER

This Interim Application is filed by the complainant under section 151 of the CPC to restore the complaint by setting aside the dismissal order passed by this Commission on 12-10-2020.

2. The complainant had filed the complaint under Section 12 of the Consumer Protection Act, 1986 to direct the OPs to pay a sum of Rs.94,306-00 towards cost of ticket booked and award sum of Rs.40,000=00 towards mental agony, Rs.40,000=00 as damages and other incidental reliefs together with interest @15% p.a. from 19-01-2019 till the date of payment along with costs in the interest of justice.

3. The complaint came to be dismissed at the stage of non filing of complainant affidavit for non prosecution inspite of sufficient opportunities given to the complainant i.e. from 04-02-2020 to 12-10-2020 total nine adjournments.

4. The complainant has filed IA along with affidavit and produced copy of citation (2001) AIR (Kerala) 316: (2001) 3 APLJ 30: (2002) 1 CPC 489: (2001) (3) CPJ 248: (2001) KerLJ 901: (2001) 2 KLT 514 which states that “In the absence of powers given under Order 9 of CPC I am of the opinion that, if inherent power is applicable in the matter of restoration of a dismissed complaint  for default, same power also can be exercised when an exparte decision is also taken in the interest of justice”.

5. We have heard the arguments of learned counsel for the complainant/applicant.

6. Section 15 of Consumer Protection Act, 1986 provided Appeal-“Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed.”

7. In Rajeev Hitendra Pathak and others v/s Achyut Kashinath Karekar and Anr decided on 19-8-2011 after 2002 amendment the full bench of the Hon’ble Supreme Court consists of three judges decisively laid to rest the divergent views emanating from proceeding two different judgments by finding in favour of the law as expressed in the Jyotsana’s judgment (1999) 4 SCC 325.

The court after analyzing the provisions of the Consumer Protection Act, 1986 held that Consumer Tribunals being creatures of statute derived their power from the express provisions of statute. It stated that it was the clear and explicit intent of the legislature to only vest the National Commission the power to set aside or review its exparte orders. In conclusion it confirmed that the District Forums and the State Commissions do not have the power to set aside the exparte orders.  In para No.38 of the Judgment the Hon’ble Supreme Court opined that the decision in Jyotsana’s case laid down the correct law and view taken in the later decision of this court in New India Assurance Co. Ltd is untenable and cannot be sustained. The decision relied by the complainant of Kerala High Court is not applicable in which case the High Court referred the decision of Supreme Court in New India Assurance Co. Ltd v/s R.Srinivasan. The decision rendered by the Kerala High Court of 2001 and the Hon’ble Supreme Court of larger bench of Hon’ble three judges dated 19-8-2011 wherein it is held that decision of the New India Assurance Co. Ltd is untenable and cannot be sustained. In view of the Apex Court larger bench decision this Commission is not having power to set aside exparte order or recall its own orders.

8. The complaint came to be dismissed after six months of unlock of Covid-2019 as lock down was declared on 24-3-2020 and unlocked in the month of April-2020. Thereafter case posted for complainant evidence and seven adjournments were given and during this period the complainants or their counsel did not turn up. Therefore, we are of the considered opinion that the Interim Application of complainant filed under section 151 of CPC dated 22-10-2020 is not maintainable. Accordingly, we proceed to pass the following:

ORDER

          Interim Application filed by the complainant under Section 151 of CPC dated 22-10-2020 is hereby dismissed as not maintainable.

Furnish the copy of order to the complainant and opposite parties at free of cost.

          (Dictated to the Stenographer, got it transcribed, corrected and then pronounced in the Open Commission on this the 11^th day of August, 2021).

LADY MEMBER            MEMBER                       PRESIDENT