State Consumer Disputes Redressal Commission
T K Parameshwaran vs Sunitha on 14 July, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION THIRUVANANTHAPURAM Revision Petition No. RP/33/2023 ( Date of Filing : 27 Apr 2023 ) (Arisen out of Order Dated 12/04/2023 in Case No. CC/232/2022 of District Wayanad) 1. T K PARAMESHWARAN CONTRACTOR THEROTTIL HOUSE VAKERI POST KRISHNAGIRI SULTHAN BATHERY 673592 ...........Appellant(s) Versus 1. SUNITHA CHAKKARAPUTHIYAVALAPPIL HOUSE KOLAGALPPARA POST SULTHAN BATHERY 673591 ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE SRI.K.SURENDRA MOHAN PRESIDENT HON'BLE MR. SRI.AJITH KUMAR.D JUDICIAL MEMBER SMT.BEENAKUMARI.A MEMBER SRI.RADHAKRISHNAN.K.R MEMBER PRESENT: Dated : 14 Jul 2023 Final Order / Judgement KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM REVISION PETITION No.29/2023 & REVISION PETITION No.33/2023 ORDER DATED: 14.07.2023 (Against the Orders in C.C.No.430/2018 of DCDRC, Thrissur & C.C.No.232/2022 of DCDRC, Wayanad) PRESENT: HON'BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT SRI. AJITH KUMAR D. : JUDICIAL MEMBER SMT. BEENA KUMARY A. : MEMBER SRI. K.R. RADHAKRISHNAN : MEMBER REVISION PETITION No.29/2023 REVISION PETITIONER/3rd OPPOSITE PARTY: Ford India Private Limited, S.P. Koil Post, Chengalpattu, Kancheepuram, Tamil Nadu - 603 204 (by Adv. Narayan R.) Vs. RESPONDENTS/ COMPLAINANT/OPPOSITE PARTIES 1 & 2: 1. Hameedha, W/o Adv. Robins K. Chungath, Kolaparambu, Ayyanthole, Thrissur - 680 003 2. Managing Director, Kerala Cars Private Limited, 508A, Illikkattu Buildings, Koonamthai, Near Edappally, Kochi - 680 024 3. Branch Manager, Kerala Cars Private Limited, Guruvayur Road, Puzhakkal, P.O. Ayyanthole, Thrissur - 680 003 REVISION PETITION No.33/2023 REVISION PETITIONER/OPPOSITE PARTY: T.K. Parameswaran, Contractor, S/o Koru, Therottil House, Vakeri Post, Krishnagiri, Sulthan Batheri, Wayanad - 673 592 (by Adv. Narayan R.) Vs. RESPONDENTS/ COMPLAINANT: Sunitha, W/o Vasanthan, Chakkaraputhiyavalappil House, Kolagalppara Post, Sulthan Batheri, Wayanad - 673 591 COMMON ORDER
HON'BLE JUSTICE K. SURENDRA MOHAN: PRESIDENT Both these revision petitions are filed challenging similar orders. They also raise a common question of law. The common question of law raised is:
"Whether an opposite party who has been set exparte for not having filed written version within the statutory time limit can claim that he is entitled to contest the proceedings?"
Therefore, they are both considered and finally disposed of by this common order.
2. Revision Petition No.29/2023 is filed by the 3rd opposite party in C.C.No.430/2018 of the District Consumer Disputes Redressal Commission, Thrissur, (the District Commission for short) challenging an order dated 01.09.2022. As per the said order, the written version filed by the Revision Petitioner has been rejected, after dismissing a petition filed for setting aside the order declaring them exparte. The complaint was filed by the 1st respondent herein alleging deficiency in service on the part of Revision Petitioner and other opposite parties who are respondents 2 and 3 herein. According to the Revision Petitioner, on receipt of notice from the District Commission they had engaged a local Advocate to represent them in the case. They had also sent their Vakalath and Written Version to the said Advocate. But their Advocate failed to file the same before the District Commission. The Revision Petitioner was under the impression that their written version had been filed. Later on, when there was no response from their counsel they engaged another Advocate with instructions to ascertain the status of their case. He filed Vakalath on 17.02.2022. However, the local Advocate was not allowed to verify the court records because the Vakalath had not been put up before the District Commission. Subsequently, the Vakalath was taken on record. According to the Revision Petitioner, the case was thereafter being adjourned automatically from 22.04.2020 onwards due to the pandemic, Covid 19. The complaint was listed on 25.05.2022 and on the said date, the Revision Petitioner came to know that they had been set exparte on 28.11.2018. They immediately obtained certified copies of all the necessary documents and filed their Written Version. However, as per the order under revision their Version was rejected by the District Commission. It is aggrieved by the said order that this revision is filed.
3. Revision Petition No.33/2023 is filed by the opposite party in C.C.No.232/2022 of the District Consumer Disputes Redressal Commission, Wayanad (the District Commission for short), aggrieved by an order dated 12.04.2023 in I.A.No.154/2023. As per the said order, a petition filed by the Revision Petitioner to set aside the order declaring them exparte has been dismissed. The complaint was filed by the respondent herein alleging deficiency in service on the part of the Revision Petitioner. The Revision Petitioner is a contractor and an acquaintance of the respondent. She had entrusted the work of constructing a new house in a property belonging to her. Her complaint is that, the work executed by the Revision Petitioner was not of good quality. Low quality materials have been used and the work was done deviating from the approved plan. The construction was done without following the proportionate ratio of sand and cement. Consequently, she suffered loss and hardships. She has therefore claimed compensation alleging deficiency in service and unfair trade practice against the Revision Petitioner. Though the Revision Petitioner entered appearance in the case, he could not file his written version within the prescribed time limit. In his written version, he has contended that more work than what was agreed had been done by him. He has used only good quality materials. The dispute between him and the respondent is only regarding the cost of extra work done by him for which she is unwilling to make payment. It was to set aside the order declaring him exparte that I.A.No.154/2023 was filed by the Revision Petitioner. The said petition has been dismissed by the order under revision.
4. In both these revision petitions, the petitioners do not dispute the fact that no written statement was filed by them within the statutory time limit. The request made by them to accept their written versions have been declined placing reliance on the decision of the Constitution Bench of the Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757. The common contention put forward by the respective counsel in both these cases is that, the District Commission ought not have set them exparte for the only reason that written version was not filed within the statutory time limit. It is pointed out that, a party is entitled to contest a case even without filing a written version. Therefore, preventing them from contesting the case of the complainant would be a travesty of justice. It is further contended that, it is only in a case where an opposite party omits or "fails to take any action" to represent his case that the statutory provision requires him to be set exparte. In these cases, the opposite parties had entered appearance. They are contesting the matter though they had not filed their written versions. The plea is therefore that at least the limited opportunity of putting forward their side of controversy even in the absence of a written version is necessary to be afforded to them, to meet the ends of justice. They therefore seek interference with the orders under challenge in exercise of our power of revision.
5. Heard. As already noticed above, the facts in this case are not in dispute. In both these cases, admittedly, the Revision Petitioners have not filed their written versions within the statutory time limit. According to them the respective District Commissions erred in rejecting the written versions filed by them for the only reason that the same was not filed within the statutory time limit. In the above context, it is necessary to note that a Constitution Bench of the Apex Court has in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757 held that the time limit for filing written version of the opposite party cannot be extended beyond the statutorily fixed time by either the District Commission or the State Commission. In view of the above authoritative pronouncement, we hold that the respective District Commissions were right in rejecting the written versions filed by the respective Revision Petitioners, out of time.
6. The next contention raised is that, it was not necessary to set the Revision Petitioners exparte since they had already appeared through counsel and were very much before the District Commission. They ought to have been permitted to contest the case though written version had not been filed. In the above context, it is necessary to consider the scope and ambit of Sub-section 3 of Section 38 of the Consumer Protection Act, 2019 (hereinafter referred to as the Act for short), which reads as under:
38. (1) ** (2) ** (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) **
(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--
(i) **
(ii) 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;
[Emphasis supplied] Clause (ii) of sub section (3)(b) stipulates the procedure to be adopted when an opposite party fails to file written version within the statutorily prescribed time of thirty days. What is stated is that, the District Commission shall proceed to settle the consumer dispute exparte on the basis of the evidence brought to its notice by the complainant. Therefore, the statutory mandate is confined to settling the consumer dispute exparte on the basis of the evidence brought to its notice by the complainant. In the said process, there is no role for the opposite party who has not filed written version.
7. A further contention that is put forward is that, the said clause applies only in cases where the opposite party 'omits or fails to take any action' to represent his case within the time given by the Commission. It is contended that in this case, the opposite party was properly represented. In view of the above, it cannot be said that this was a case in which the opposite party had failed or omitted "to take any action to represent his case" within the time given by the Commission. The above contention also has to fail for the reason that, what is contemplated by clause (b) of sub section 3 are two situations namely;
where the opposite party denies or disputes the allegations contained in the complaint and omits or fails to take any action to represent his case within the time given by the Commission.
Therefore, the question arises as to what has been the nature of the omission or failure on the part of the opposite party within the time granted by the District Commission. The answer is contained in clause (a) which stipulates that the District Commission shall refer a copy to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not extending fifteen days as may be granted. Therefore, the action that the opposite party had to take was to file his written version within the stipulated time, which has admittedly not been done in this case. In view of the above, this is a case in which the opposite party had failed or omitted to take any action within the time given by the Commission. The words "any action" are conditioned and restricted by the subsequent words "to represent his case within the time given by the Commission". His omission is complete, when he omits to file his Written Version within the time limit, as directed by the Commission.
In the above view of the matter, we are not satisfied that there is any error of jurisdiction or other infirmity in the order under revision warranting an interference with the same. These Revision Petitions fail and are accordingly dismissed. No costs.
JUSTICE K. SURENDRA MOHAN :
PRESIDENT AJITH KUMAR D. :
JUDICIAL MEMBER BEENA KUMARY A. :
MEMBER K.R. RADHAKRISHNAN :
MEMBER SL [HON'BLE MR. JUSTICE SRI.K.SURENDRA MOHAN] PRESIDENT [HON'BLE MR. SRI.AJITH KUMAR.D] JUDICIAL MEMBER [ SMT.BEENAKUMARI.A] MEMBER [ SRI.RADHAKRISHNAN.K.R] MEMBER