P.V. Raneesh Vs. the Branch Manager, Popular Automobiles, Near Ashoka Company - Court Judgment

SooperKanoon Citationsooperkanoon.com/1108875
CourtKerala State Consumer Disputes Redressal Commission SCDRC Thiruvananthapuram
Decided OnOct-25-2011
Case NumberFirst Appeal No. 725 of 2005 (Arisen out of Order Dated null in Case No. of District)
JudgeTHE HONOURABLE MR. M.V. VISWANATHAN JUDICIAL MEMBER & THE HONOURABLE MR. M.K. ABDULLA SONA MEMBER
AppellantP.V. Raneesh
RespondentThe Branch Manager, Popular Automobiles, Near Ashoka Company
Excerpt:
shri. m.v. viswanathan : judicial member the above appeal is preferred against the order dated:23rd january 2003 of cdrf, kannur in ep.2/02 in op.163/99. 2. the facts of this case can be summarized as follows:- appellant is the complainant in op.163/99 on the file of cdrf, kannur. the said complaint was filed alleging unfair trade practice and deficiency in service on the part of the opposite party, popular automobiles, kannur branch in collecting excess amount from the complainant with respect to the repair effected to the complainants vehicle bearing registration no.kl-13-c-9749. it was alleged that the opposite party, collected an excess amount of rs.65,000/- from the complainant and thereby the complainant claimed refund of the said sum of rs.65,000/- with compensation of rs.50,000/-. 3. notice in the said complaint in op.163/99 was issued to the opposite party and the same was returned unserved with the endorsement ‘closed. a fresh notice was issued to the opposite party and the same was also returned with the endorsement ‘name differs. the forum below ordered substituted service against the opposite party by publishing the notice in a local newspaper having circulation in kannur. the complainant effected the paper publication and the same was produced. the forum below considered the substituted service as effective service and the opposite party was called in open forum. there was no representation for the opposite party and so the opposite party was declared exparte. 4. before the forum below, the complainant was examined as pw1 and a witness on his side was examined as pw2. exts.p1 to p4 documents were also produced and marked on the side of the complainant. 5. on an appreciation of the evidence on record, the forum below passed the order dated:27th november 2000 allowing the complaint partly. thereby the opposite party was directed to refund rs.65,000/- to the complainant. the opposite party was also directed to pay compensation of rs.5000/- to the complainant for deficiency in service with cost of rs.2000/-. 6. the complainant/decree holder filed ep.2/02 to get the order dated:27.11.2000 in op.163/99 executed. notice in the aforesaid execution petition was served on the opposite party/judgment debtor. on getting the notice in ep.2/02, the judgment debtor (respondent herein) entered appearance and filed a petition for getting the order dated:27.11.2000 in op.63/99 set aside. the forum below allowed the said petition vide the impugned order dated:23.1.2003. the impugned order is as follows:- “this petition is filed to set aside exparte on the ground of want of service of notice which is incorrect because publication is seen made. anyhow an opportunity is to be given to the party to contest the case for interest of justice. so, the petition is allowed on payment of cost of rs.250/-. for payment 30.1.2003.” it is against the said order the present appeal is filed by the complainant in op.163/99. 7. notice in this appeal was served on the respondent/opposite party and that the opposite party entered appearance through counsel of his choice. the present appeal was filed on 18.4.2003 and the same was admitted to the file of this state commission. it is understood that interim stay was also granted in favour of the appellant/complainant. the respondent entered appearance through counsel on 17.1.2006. lower court records were also called for. but subsequently, the case bundle in this case has been missed. the honble president of this commission passed an order directing to locate the case bundle in a.725/05. the secretary cum registrar of this commission submitted a report dated 23.2.2011 stating that the case bundle in a.725/05 could not be traced out. the secretary has also obtained a report from the senior superintendent of this state commission. the senior superintendent of this state commission has also submitted a report to the effect that he deputed class-iv officers of this commission to trace out the case bundle and that on verification, the case bundle could not be traced out. he also filed a report with the written submission made by the class-iv officers of this commission viz. m/s a.k.harsha kumar, murugan, and g.r.jayakumar. in effect, the case bundle in this appeal no.725/05 could not be traced out. 8. the learned counsel for the appellant produced copy of the appeal memorandum in appeal.725/05. he also produced copy of the order dated:27th november 2000 passed by cdrf, kannur in op.163/99 and copy of the impugned order dated:23.1.2003 in ep.2/02 in op.163/99. on the basis of the available documents, this commission heard the counsel for the appellant and the respondent herein. 9. the learned counsel for the appellant/complainant submitted his arguments based on the grounds urged in the memorandum of the present appeal. he vehemently argued for the position that the forum below had no jurisdiction to pass the impugned order dated:23.1.2003. he relied on the decision rendered by the honble supreme court in jyotsana aravind kumar shah and others vs. bombay hospital trust reported in 1999 (1) cpr 86 (sc) and also the decision in rajiv hitendra pathak vs. achyut k. karekar reported in 2011 (3) klt sn 133 (case no.136) sc and submitted that district fora and state commissions have no power to set aside exparte orders and of review. on the other hand, the learned counsel for the respondent/opposite party supported the impugned order passed by the forum below. he much relied on the decision rendered by the honble supreme court in new india assurance company ltd. vs. r.srinivasan reported in (2000) 3 scc 242 and argued for the position that the consumer disputes redressal agencies have inherent power and jurisdiction to set aside exparte orders and to restore complaints dismissed for default provided good reasons are shown for their non-appearance. thus, the respondent justified the action on the part of the forum below in setting aside the exparte order dated:27.11.2000 in op.163/99. 10. the points that arise for consideration in the present appeal are:- 1. whether the forum below (cdrf, kannur) had the jurisdiction to set aside the exparte order passed in op.163/99? 2. whether the impugned order dated:23.1.2003 passed by cdrf, kannur in ep.2/02 in op.163/99 can be upheld? 11. points 1 and 2:- there can be no dispute that the cdrf, kannur passed an exparte order dated:27.11.2000 in op.163/99. the aforesaid order in op.163/99 was passed on merits, though in the absence of the opposite party therein. it is to be noted that the notices were issued to the opposite party on 2 occasions and on both occasions the notices were returned unserved. it is thereafter, substituted service of notice was ordered by publication in local newspaper. the substituted service was effected. 12. it is pertinent to note at this juncture that the notice in ep.2/02 in op.163/99 was issued to the opposite party/jd in the very same address as shown in op.163/99. but the notice in ep.2/02 was served on the opposite party/judgment debtor and he entered appearance and filed the petition to get the exparte order set aside. this circumstance would give a clear indication that the address of the opposite party shown in op.163/99 was correct and that the opposite party purposefully evaded acceptance of the notice. the very same opposite party as judgment debtor accepted the notice in ep.2/02 and entered appearance. this is a strong circumstance to hold that the opposite party in op.163/99 was intentionally and deliberately avoiding service of notice on him. thus, it can be inferred that the opposite party himself permitted the forum below to pass an exparte order dated:27.11.2000 in op.163/99. 13. the forum below (cdrf, kannur) passed the exparte order dated:27th november 2000 in op.163/99 after considering the entire evidence adduced from the side of the complainant. the complainant himself was examined as pw1. a witness on his side was examined as pw2. the evidence of pw2 would show the unfair trade practice and deficiency in service on the part of the opposite party. the forum below also considered p1 to p4 documents produced on the side of the complainant. it is on consideration of the entire evidence, the forum below passed the exparte order directing refund of rs.65,000/- which the opposite party had collected as excess amount. it is to be noted that the complainant therein claimed compensation of rs,.50,000/- for deficiency in service on the part of the opposite party. but the forum below has only awarded compensation of rs.5000/- with cost of rs.250/-. this circumstance would make it clear that the forum below passed a considered order on merits, though exparte. 14. it is held by the honble supreme court as early as in the year 1999 by virtue of its decision in jyotsana aravind kumar shah and others vs. bombay hospital trust reported in 1999 (1) cpr 86 (sc) that the district forums and state commissions constituted under consumer protection act, 1986 have no jurisdiction to set aside exparte reasoned orders. it is held by the honble supreme court in clear terms that the agencies constituted under the consumer protection act are bound to function under the provisions of the consumer protection act and that the said act does not provide any jurisdiction to the consumer agencies viz, district fora and state commissions to set-aside exparte reasoned order. thus, it has been held that the state commission therein set aside the exparte order without jurisdiction. 15. the aforesaid decision in jyotsana aravind kumar shahs case has been affirmed by the honble supreme court in the recent decision in rajiv hitendra pathak vs. achyut k. karekar reported in 2011 (3) klt sn 133 (case no.136) sc. it is affirmed by the honble apex court that district fora and state commissions have no power to set aside exparte orders and of review. thus, it can very safely be concluded that the forum below had no jurisdiction to set aside exparte order dated:27.11.2000 in op.163/99. if that be so, the impugned order dated:23.1.2003 in ep.2/02 in op.163/99 was passed without jurisdiction and the same is liable to be quashed.16. the learned counsel for the respondent/opposite party relied on the decision rendered by the honble apex court in new india assurance company ltd. vs. r.srinivasan reported in (2000) 3 scc 242. at the very outset it can be held that the aforesaid decision (supra) has no application to the present case on hand. the aforesaid reported case is based on the principle under order 9 rule 9 of cpc. the said provisions of cpc have no application to the proceedings before the consumer disputes redressal agency constituted under the consumer protection act, 1986. it is also held that the bar or prohibition under order 9 rule 9 cpc cannot be made applicable to the proceedings before the consumer disputes redressal agencies and there is no express prohibition in the consumer protection act prohibiting restoration of the complaint which was dismissed for default. it is true that it has been held by the honble supreme court that consumer disputes redressal agencies have inherent power and jurisdiction to restore a complaint which was dismissed for default provided the complainant shows good reasons for non appearance. 17. it is to be borne in mind that the inherent power or jurisdiction vested in a court or judicial body or authority can only be exercised if there is no specific provision in the statute or there is no specific prohibition or bar in the statute to provide an effective remedy to a party to a lis. but as far as the jurisdiction to set aside exparte order or power of review is concerned, there is specific bar or prohibition under the consumer protection act. it is to be noted that setting aside an exparte order which was passed on merits would amount to review of its own order. 18. an analysis of the consumer protection act, 1986 would make it clear that the legislature had the intention to give the power of review to the national consumer commission. it is based on the said intention of the legislature, the amendment of section 22 of the consumer protection act was introduced by adding section 22-a of the said act. the aforesaid amendment to section 22 of the consumer protection act, 1986 would make it abundantly clear that the legislature did not intent to confer that power of review on district fora and state commissions. hence we hold that the impugned order passed by the forum below setting aside the exparte reasoned order in op.163/99 is legally unsustainable as the same was passed without jurisdiction. so, the argument of the learned counsel for the respondent/opposite party that forum below had the jurisdiction to set aside its own exparte order in op.163/99 cannot be upheld. 19. the above finding and conclusion of this state commission is well fortified by the recent decision rendered by the honble supreme court in the case of rajiv hitendra pathak vs. achyut k. karekar (supra). the aforesaid decision has got direct application to the present case on hand. the facts of the case of the aforesaid reported decision can be made squarely applicable to the present case. therefore, the present appeal is to be allowed and the impugned order is to be set aside. these points are answered accordingly. in the result, the appeal is allowed. the impugned order dated:23.1.2003 passed by cdrf, kannur in ep.2/02 in op.163/99 is quashed and thereby the exparte reasoned order dated:27.11.2000 passed by cdrf, kannur in op.163/99 is restored. the forum below is directed to proceed with ep.no.2/02 in op.163/99. the respondent/opposite party (judgment debtor) is directed to pay cost of rs.1000/- to the appellant/complainant.
Judgment:

SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER

The above appeal is preferred against the order dated:23rd January 2003 of CDRF, Kannur in EP.2/02 in OP.163/99.

2. The facts of this case can be summarized as follows:-

Appellant is the complainant in OP.163/99 on the file of CDRF, Kannur. The said complaint was filed alleging unfair trade practice and deficiency in service on the part of the opposite party, Popular Automobiles, Kannur branch in collecting excess amount from the complainant with respect to the repair effected to the complainants vehicle bearing registration No.KL-13-C-9749. It was alleged that the opposite party, collected an excess amount of Rs.65,000/- from the complainant and thereby the complainant claimed refund of the said sum of Rs.65,000/- with compensation of Rs.50,000/-.

3. Notice in the said complaint in OP.163/99 was issued to the opposite party and the same was returned unserved with the endorsement ‘closed. A fresh notice was issued to the opposite party and the same was also returned with the endorsement ‘name differs. The Forum below ordered substituted service against the opposite party by publishing the notice in a local newspaper having circulation in Kannur. The complainant effected the paper publication and the same was produced. The Forum below considered the substituted service as effective service and the opposite party was called in open Forum. There was no representation for the opposite party and so the opposite party was declared exparte.

4. Before the Forum below, the complainant was examined as PW1 and a witness on his side was examined as PW2. Exts.P1 to P4 documents were also produced and marked on the side of the complainant.

5. On an appreciation of the evidence on record, the Forum below passed the order dated:27th November 2000 allowing the complaint partly. Thereby the opposite party was directed to refund Rs.65,000/- to the complainant. The opposite party was also directed to pay compensation of Rs.5000/- to the complainant for deficiency in service with cost of Rs.2000/-.

6. The complainant/Decree Holder filed EP.2/02 to get the order dated:27.11.2000 in OP.163/99 executed. Notice in the aforesaid execution petition was served on the opposite party/Judgment Debtor. On getting the notice in EP.2/02, the Judgment Debtor (respondent herein) entered appearance and filed a petition for getting the order dated:27.11.2000 in OP.63/99 set aside. The Forum below allowed the said petition vide the impugned order dated:23.1.2003. The impugned order is as follows:-

“This petition is filed to set aside exparte on the ground of want of service of notice which is incorrect because publication is seen made. Anyhow an opportunity is to be given to the party to contest the case for interest of justice. So, the petition is allowed on payment of cost of Rs.250/-. For payment 30.1.2003.”

It is against the said order the present appeal is filed by the complainant in OP.163/99.

7. Notice in this appeal was served on the respondent/opposite party and that the opposite party entered appearance through counsel of his choice. The present appeal was filed on 18.4.2003 and the same was admitted to the file of this State Commission. It is understood that interim stay was also granted in favour of the appellant/complainant. The respondent entered appearance through counsel on 17.1.2006. Lower court records were also called for. But subsequently, the case bundle in this case has been missed. The Honble President of this commission passed an order directing to locate the case bundle in A.725/05. The Secretary cum Registrar of this Commission submitted a report dated 23.2.2011 stating that the case bundle in A.725/05 could not be traced out. The Secretary has also obtained a report from the Senior Superintendent of this State Commission. The Senior Superintendent of this State Commission has also submitted a report to the effect that he deputed class-IV officers of this commission to trace out the case bundle and that on verification, the case bundle could not be traced out. He also filed a report with the written submission made by the class-IV officers of this commission viz. M/s A.K.Harsha kumar, Murugan, and G.R.Jayakumar. In effect, the case bundle in this appeal No.725/05 could not be traced out.

8. The learned counsel for the appellant produced copy of the appeal memorandum in Appeal.725/05. He also produced copy of the order dated:27th November 2000 passed by CDRF, Kannur in OP.163/99 and copy of the impugned order dated:23.1.2003 in EP.2/02 in OP.163/99. On the basis of the available documents, this commission heard the counsel for the appellant and the respondent herein.

9. The learned counsel for the appellant/complainant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He vehemently argued for the position that the Forum below had no jurisdiction to pass the impugned order dated:23.1.2003. He relied on the decision rendered by the Honble Supreme Court in Jyotsana Aravind kumar Shah and Others Vs. Bombay Hospital Trust reported in 1999 (1) CPR 86 (SC) and also the decision in Rajiv Hitendra Pathak Vs. Achyut K. Karekar reported in 2011 (3) KLT SN 133 (Case No.136) SC and submitted that District Fora and State Commissions have no power to set aside exparte orders and of review. On the other hand, the learned counsel for the respondent/opposite party supported the impugned order passed by the Forum below. He much relied on the decision rendered by the Honble Supreme Court in New India Assurance Company Ltd. Vs. R.Srinivasan reported in (2000) 3 SCC 242 and argued for the position that the consumer disputes redressal agencies have inherent power and jurisdiction to set aside exparte orders and to restore complaints dismissed for default provided good reasons are shown for their non-appearance. Thus, the respondent justified the action on the part of the Forum below in setting aside the exparte order dated:27.11.2000 in OP.163/99.

10. The points that arise for consideration in the present appeal are:-

1. Whether the Forum below (CDRF, Kannur) had the jurisdiction to set aside the exparte order passed in OP.163/99?

2. Whether the impugned order dated:23.1.2003 passed by CDRF, Kannur in EP.2/02 in OP.163/99 can be upheld?

11. Points 1 and 2:- There can be no dispute that the CDRF, Kannur passed an exparte order dated:27.11.2000 in OP.163/99. The aforesaid order in OP.163/99 was passed on merits, though in the absence of the opposite party therein. It is to be noted that the notices were issued to the opposite party on 2 occasions and on both occasions the notices were returned unserved. It is thereafter, substituted service of notice was ordered by publication in local newspaper. The substituted service was effected.

12. It is pertinent to note at this juncture that the notice in EP.2/02 in OP.163/99 was issued to the opposite party/JD in the very same address as shown in OP.163/99. But the notice in EP.2/02 was served on the opposite party/Judgment Debtor and he entered appearance and filed the petition to get the exparte order set aside. This circumstance would give a clear indication that the address of the opposite party shown in OP.163/99 was correct and that the opposite party purposefully evaded acceptance of the notice. The very same opposite party as Judgment Debtor accepted the notice in EP.2/02 and entered appearance. This is a strong circumstance to hold that the opposite party in OP.163/99 was intentionally and deliberately avoiding service of notice on him. Thus, it can be inferred that the opposite party himself permitted the Forum below to pass an exparte order dated:27.11.2000 in OP.163/99.

13. The Forum below (CDRF, Kannur) passed the exparte order dated:27th November 2000 in OP.163/99 after considering the entire evidence adduced from the side of the complainant. The complainant himself was examined as PW1. A witness on his side was examined as PW2. The evidence of PW2 would show the unfair trade practice and deficiency in service on the part of the opposite party. The Forum below also considered P1 to P4 documents produced on the side of the complainant. It is on consideration of the entire evidence, the Forum below passed the exparte order directing refund of Rs.65,000/- which the opposite party had collected as excess amount. It is to be noted that the complainant therein claimed compensation of Rs,.50,000/- for deficiency in service on the part of the opposite party. But the Forum below has only awarded compensation of Rs.5000/- with cost of Rs.250/-. This circumstance would make it clear that the Forum below passed a considered order on merits, though exparte.

14. It is held by the Honble Supreme Court as early as in the year 1999 by virtue of its decision in Jyotsana Aravind kumar Shah and Others Vs. Bombay Hospital Trust reported in 1999 (1) CPR 86 (SC) that the District forums and State Commissions constituted under Consumer Protection Act, 1986 have no jurisdiction to set aside exparte reasoned orders. It is held by the Honble Supreme Court in clear terms that the agencies constituted under the Consumer Protection Act are bound to function under the provisions of the Consumer Protection Act and that the said Act does not provide any jurisdiction to the consumer agencies viz, District Fora and State Commissions to set-aside exparte reasoned order. Thus, it has been held that the State commission therein set aside the exparte order without jurisdiction.

15. The aforesaid decision in Jyotsana Aravind kumar Shahs case has been affirmed by the Honble Supreme Court in the recent decision in Rajiv Hitendra Pathak Vs. Achyut K. Karekar reported in 2011 (3) KLT SN 133 (Case No.136) SC. It is affirmed by the Honble Apex Court that District Fora and State Commissions have no power to set aside exparte orders and of review. Thus, it can very safely be concluded that the Forum below had no jurisdiction to set aside exparte order dated:27.11.2000 in OP.163/99. If that be so, the impugned order dated:23.1.2003 in EP.2/02 in OP.163/99 was passed without jurisdiction and the same is liable to be quashed.16. The learned counsel for the respondent/opposite party relied on the decision rendered by the Honble Apex Court in New India Assurance Company Ltd. Vs. R.Srinivasan reported in (2000) 3 SCC 242. At the very outset it can be held that the aforesaid decision (supra) has no application to the present case on hand. The aforesaid reported case is based on the principle under order 9 rule 9 of CPC. The said provisions of CPC have no application to the proceedings before the Consumer Disputes Redressal Agency constituted under the Consumer Protection Act, 1986. It is also held that the bar or prohibition under order 9 rule 9 CPC cannot be made applicable to the proceedings before the Consumer Disputes Redressal agencies and there is no express prohibition in the Consumer Protection Act prohibiting restoration of the complaint which was dismissed for default. It is true that it has been held by the Honble Supreme Court that Consumer Disputes Redressal Agencies have inherent power and jurisdiction to restore a complaint which was dismissed for default provided the complainant shows good reasons for non appearance.

17. It is to be borne in mind that the inherent power or jurisdiction vested in a Court or Judicial body or authority can only be exercised if there is no specific provision in the statute or there is no specific prohibition or bar in the statute to provide an effective remedy to a party to a lis. But as far as the jurisdiction to set aside exparte order or power of review is concerned, there is specific bar or prohibition under the Consumer Protection Act. It is to be noted that setting aside an exparte order which was passed on merits would amount to review of its own order.

18. An analysis of the consumer Protection Act, 1986 would make it clear that the legislature had the intention to give the power of review to the National Consumer Commission. It is based on the said intention of the legislature, the amendment of section 22 of the Consumer Protection Act was introduced by adding section 22-A of the said Act. The aforesaid amendment to section 22 of the Consumer Protection Act, 1986 would make it abundantly clear that the legislature did not intent to confer that power of review on District Fora and State Commissions. Hence we hold that the impugned order passed by the Forum below setting aside the exparte reasoned order in OP.163/99 is legally unsustainable as the same was passed without jurisdiction. So, the argument of the learned counsel for the respondent/opposite party that Forum below had the jurisdiction to set aside its own exparte order in OP.163/99 cannot be upheld.

19. The above finding and conclusion of this State Commission is well fortified by the recent decision rendered by the Honble Supreme Court in the case of Rajiv Hitendra Pathak Vs. Achyut K. Karekar (supra). The aforesaid decision has got direct application to the present case on hand. The facts of the case of the aforesaid reported decision can be made squarely applicable to the present case. Therefore, the present appeal is to be allowed and the impugned order is to be set aside. These points are answered accordingly.

In the result, the appeal is allowed. The impugned order dated:23.1.2003 passed by CDRF, Kannur in EP.2/02 in OP.163/99 is quashed and thereby the exparte reasoned order dated:27.11.2000 passed by CDRF, Kannur in OP.163/99 is restored. The Forum below is directed to proceed with EP.No.2/02 in OP.163/99. The respondent/opposite party (Judgment Debtor) is directed to pay cost of Rs.1000/- to the appellant/complainant.