KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 207/2023
JUDGMENT DATED: 01.06.2023
(Against the Order in C.C. 123/2022 of CDRC, Thiruvananthapuram)
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
APPELLANT:
Unnoonny Motors, NH 47, Madannada, Vadakkevila P.O, Kollam- 691010 represented by its Managing Partner- Rohit George Varghese.
(By Adv. John Jeevan)
Vs.
RESPONDENT:
Vishnu. S, S/o Subbayya Pillai, Vishnu Sree, Naduvilakkara, Umayanalloor Post, Kollam 691 589. Current Address: Sreyas, T.C. 57/3172, Thiruvallam P.O, Thiruvananthapuram- 695 027.
JUDGMENT
SRI. RADHAKRISHNAN K.R.: MEMBER
This is an appeal filed under section 41 of the Consumer Protection Act, 2019, against the order in C.C. No. 123/2022 before the District Consumer Disputes Redressal Commission, Thiruvananthapuram (District Commission for short). As per the order dated 15.07.2022 the opposite party was directed to refund Rs. 2,24,950/- to the Complainant along with Rs. 70,000/- as compensation and Rs. 2,500/- as costs of the proceedings within 30 days from the date of receipt of a copy of the order failing which the amount except costs shall carry interest @ 9% per annum from the date of order till realisation.
2. The order of the District Commission is dated 15.07.2022 whereas the appeal was filed on 29.03.2023, after a long delay which is not explained.
3. The complaint pertains to alleged defects of a motor cycle. The respondent/complainant purchased a Royal Enfield classic 350 stealth black motor cycle from the opposite party on 19.12.2020 by paying Rs. 2,24,980/-. The vehicle had frequent complaints which forced him to take it to workshops and service centres for repairs on many occasions. All these defects occurred during the warranty period. The complainant had to suffer mental agony, waste of time and financial loss and hence he filed the complaint alleging deficiency in service and unfair trade practice on the part of the opposite party.
4. Complainant was examined as PW1 and Exts. P1 to P16 were marked on his side. Though notice had been issued to the appellant/opposite party, they did not turn up. Therefore, they were set ex-parte. As the opposite party was declared ex-parte, there was no oral or documentary evidence on their side. Hence the complaint has been allowed by the District Commission placing reliance on the unchallenged evidence available in this case.
5. Heard the counsel for the appellant. Perused the records.
6. The primary issue in this case is regarding service of notice to the opposite party. The District Commission has stated in paragraph 3 of the order appealed against that though notice had been served on the opposite party they did not turn up and hence they were set ex-parte on 10.05.2022. The said paragraph is reproduced below:
“3. After admitting the complaint notice was issued to the opposite party. Even after accepting the notice, the opposite party failed to appear before this commission on the date fixed for appearance. Hence on 10.05.2022 the opposite party was called absent and set ex parte.”
7. According to the appellant their employee received the notice from the District Commission, but failed to inform them as he left the job. Absolutely, no evidence has been produced by the opposite party to show that the observation of the District Commission is 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 –
- 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
- 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.
8. We notice that, this is a case in which no version has been filed by the appellant, though they 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 appeal or calling for the Lower Court Records. This appeal is therefore dismissed.
The amount of statutory deposit made by the appellant shall be refunded to them, on proper acknowledgment.
JUSTICE K. SURENDRA MOHAN : PRESIDENT
AJITH KUMAR D. : JUDICIAL MEMBER
BEENA KUMARY. A : MEMBER
RADHAKRISHNAN K.R. : MEMBER
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