Calcutta High Court (Appellete Side)
Managing Director vs Amit Kumar Chakraborty & Ors on 13 January, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE C.O. No. 429 of 2009 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Managing Director, Xenitis Infotech Pvt. Ltd.
Versus Amit Kumar Chakraborty & ors.
For the petitioner: Sardar Amjad Ali, Mr. Subhadip Dutta.
For the opposite party No.1: Mr. Rabindra Nath Mahato. Heard On:10.01.2011.
Judgement On: January 13, 2011.
Prasenjit Mandal, J.: This application is at the instance of the appellant and is directed against the order dated November 24, 2008 passed by the Hon'ble State Consumer Disputes Redressal Commission, West Bengal in S. C. Case No.24/FA/08.
The opposite party no.1 purchased a laptop at a cost of Rs.38,600/- for personal use from the opposite party no.2. But, 2 that laptop started malfunctioning and all the major components thereof, namely, mother board, power section, battery, hinghe, etc. showed major defects within the period of warranty. For that reason, the complainant / opposite party no.1 had to deposit the said laptop with the opposite party no.2 four times within one year and on each occasion the repairing took about a month or more. Thus, the complainant / opposite party no.1 was able to use the said laptop for about 8 months within the warranty period. So, the complainant lodged a complaint with the District Consumer Disputes Redressal Forum, Burdwan being DF Case No.15 of 2007. That complaint case was allowed ex parte against the petitioner herein and rejected against the opposite party nos.2 & 3. Thereafter, the petitioner filed an appeal being S.C. Case No.24/FA/08 before the State Consumer Disputes Redressal Commission, West Bengal (henceforth shall be called as 'State Commission'). That appeal was allowed in part with costs. Being aggrieved, the appellant has preferred this revisional application.
Now, the point for consideration is whether the impugned order should be sustained.
Upon hearing the learned counsel for the parties and on going through the materials on record, I find that there is no dispute as to purchase of a laptop by the complainant at a cost of Rs.38,600/- from the opposite party no.2 and that the laptop 3 started malfunctioning and for that reason the complainant had to tender the said laptop to the opposite party no.2. The repairing works were done and in this way, the complainant used the said laptop for about 8 months only with the warranty period of one year and in fact his personal materials, that is, research works had been damaged. For that reason, he filed the said complaint. The District Forum observed that there was no fault on the part of the opposite party nos.2 & 3. Herein but the petitioner who was numbered as opposite party no.3 before the District Forum did not contest the said case. Upon materials on record, the said application was allowed ex parte against him. The appeal preferred by the petitioner has also been allowed in part. These facts are not disputed.
Mr. Ali, learned Advocate appearing on behalf of the petitioner, submits that the petitioner has been described in the complaint as if he was personally liable. The company in which he is a managing director has not been implicated as opposite party and the managing director cannot be personally responsible for any fault on the part of the company. Had the company been made a party, a resolution could have been taken by the company directing the managing director or any other person to take appropriate steps for the company being represented in the said complaint. This has not been followed. So, the complaint before the District Forum is illegal and so consequently, the complaint should have 4 been dismissed against the opposite party no.3. Mr. Ali also submits that it is surprising to note that while disposing of the appeal, the appellate forum has allowed the appeal in part on contest but, awarded compensation, litigation cost and even further cost payable at the rate of Rs.500/- per day in case of default of payment as directed by the appellate forum. So, the impugned order is not sustainable and it should be set aside.
On the other hand, the learned Advocate appearing on behalf of the opposite parties, submits that this application is not maintainable at all because there is a provision for preferring an appropriate application for revision before the National Commission under Section 21 of the Consumer Protection Act, 1986. But this application has been filed before this Hon'ble Court instead of taking appropriate steps under Section 21 of the said Act of 1986. Therefore, this application is not maintainable.
Mr. Ali has also referred to the decision reported in AIR 2006 SC 1474 to show that this Court has jurisdiction to entertain an application under Article 227 of the Constitution of India.
The petitioner though he is entitled to take steps for setting aside the ex parte order, did not resort to such courses. He preferred an appeal against the ex parte order. So, the legality of the order of the District Forum is under consideration. As per evidence on record, the appeal preferred by the petitioner has been allowed in part in the manner stated 5 above. This being the position, according to Section 21 of the said Act of 1986, the National Commission is empowered to call for records and pass appropriate orders in any consumer dispute which has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in exercise of its jurisdiction illegally or with material irregularity. So, there is a clear provision for preferring a revision before the National Commission, if any, person is aggrieved by any order passed by the State Commission and the National Commission is to pass the appropriate orders in terms of Section 21 of the said Act of 1986. This is a clear right of an aggrieved person under the provisions of Consumer Protection Act, 1986.
Now, the petitioner has come up against the order of the State Commission straightway without resorting to the provisions of Section 21 of the said Act of 1986. The question is whether this Court can entertain this application. The Consumer Protection Act, 1986 is a complete Act and it lays down a summary procedure for quick disposal of the matters relating to protection of interests of the consumers. Keeping in view that any person may be aggrieved by an order of an appeal by the State Commission, a provision for revision has been made under Section 21 of the said Act and so the National Commission is the appropriate forum to 6 ventilate the grievance of any person being aggrieved by any order of the State Commission.
In spite of that provision, the Hon'ble High Court can entertain any revisional application if it is found that the order complained of has been passed without jurisdiction. In the instant case, there is no dispute that the State Commission is empowered to hear an appeal arising out of an order passed by the District Forum. The Stte Commission has not passed any order which is beyond the jurisdiction of the State Commission. It can well pass the orders for return of the value of the goods purchased, compensation and even the further costs, if the situation demands. The quantum of award passed by the State Commission cannot be a subject of jurisdiction of this Hon'ble Court. Therefore, this Hon'ble Court should not entertain an application if the appellate forum functions within its authority in awarding the value of the laptop, compensation, litigation costs and further costs or not. Therefore, this revisional application, I hold, is not maintainable before this Hon'ble Court.
This being the position, I am of the view that without going into the merit of the application, the said application should be rejected holding that the State Commissioner cannot be said to have acted without any jurisdiction and that this Hon'ble Court is not the appropriate forum for the appellant to ventilate his 7 grievance. In such a situation, there is no scope of interference with the impugned order by this Hon'ble Court.
So, this application fails to succeed. It is, therefore, dismissed.
Considering the circumstances, there will be no order as to costs.
It is hereby recorded that I have not gone into the merits of the application; but I have considered the jurisdiction of this Hon'ble Court to entertain this application. It is also recorded that this application was filed on February 10, 2009 and it is disposed of today.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)