State Consumer Disputes Redressal Commission
Audi India, Division Of Volkswagen vs Mr. Richard Antonio Dosta, on 27 October, 2014
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA FA. No. 81/2014 Audi India, Division of Volkswagen Group Sales India Pvt. Ltd., Silver Utopia, 4th floor, Cardial Gracias Road, Chalaka, Andheri (East) 400099. Applicant v/s. 1. Mr. Richard Antonio DCosta, r/o H. No. 163, Novangully, Varca Salcete, Margao 403601 . 2. MVR Automobiles Pvt. Ltd., Audi Goa, H.No. 818, Opp. O Coquiero Hotel, Socorro, Porvorim Goa. .Respondents Appellant/OP No. 1 is represented by Adv. Shri. N.G. Kamat. Coram: Shri Justice N.A. Britto, President Shri Jagdish Prabhudesai, Member Dated: 27/10/2014 ORDER
[Per Shri Justice N.A. Britto, President We have heard Shri. N.G. Kamat, the lr. advocate of the Appellant i.e. OP No. 1 in C.C. No. 18/14 at the stage of admission of this appeal, whose written version filed alongwith an application dated 30/07/14 for extension of time has been rejected, on facts, as well as on law. On law, because the delay of 47 days cannot be extended by the District Forum beyond 45 days as provided by Section 13(2)(a) of the C.P. Act, 1986, and, on facts because the explanation given that OP No. 1 took time to procure the required information from OP No. 2, was far from satisfactory, considering that in todays day and time electronic media is available.
2. The Appellant/OP No. 1 was served with the copy of the complaint on 10/04/14 and the notice required the Appellant/OP No. 1 that it should file its written version within 30 days. The copies of annexures to the complaint were furnished to the Appellant/OP No. 1 on 30/04/14, and, therefore, the Lr. District Forum has came to the conclusion, and, in our view rightly, that the time for filing the written statement would start running from 30/04/14.
3. On 23/06/14 the Appellant/OP No. 1 sought further extension of time and by that time the application was late by 9 days, beyond 45 days, though the Lr. District Forum passed an order thereon that the written version ought to be filed during the time prescribed. By 30/07/14 when another application came to be filed there was already a delay of 47 days, beyond the stipulated time of 30 + 15 days, as stipulated by Section 13(2)(a) of the C.P. Act, 1986.
4. Shri. N.G. Kamat the lr. advocate of the Appellant/OP No. 1 has referred to M/s. Shree. Ostwal Builders Ltd. & ors. vs. Mr. Subhash G. Master and anr., 2014(1) CPR 591 and has submitted that in that case time for filing written version was extended beyond 30 + 15 days subject to payment of costs. Shri. Kamat has also relied on Tata AIG General Insurance Company Ltd., vs. Kanan Knitwear, 2014 (1) CPR 207 and has submitted that time can be extended in view of another three Judge Bench decision of the Hon. Supreme Court in Kailash vs. Nanhku & ors., 2013(4) CPR 714.
5. We are not impressed with the submissions made by Shri. Kamat, the lr. advocate of the Appellant/OP No. 1.
6. There appears to be divergence of views expressed by different Benches of the National Commission, whether the time of 30 + 15 days stipulated by Section 13(2)a of CP Act can be extended in case there are exceptional reasons to extend the same.
7. In M/s. Shree. Ostwal Builders Ltd., decision dated 3/3/14 (supra) the consumer complaint was admitted on 1/4/13 and notice was issued by the Maharashtra State Commission on 9/4/13 returnable on 6/5/13 thereby giving 27 days for filing the written statement. The OP did not appear on 6/5/13 and the complainant was therefore asked to produce his evidence on 3/7/13, on which day, the Petitioner/OP appeared and filed an application for extension of time to file written statement which came to be dismissed by the State Commission vide order dated 10/10/13. The Lr. National Commission, without referring to any provisions of law or to any decision, concluded that looking at the facts and circumstances of the case the Petitioner/OP ought to be given opportunity to file written statement subject to payment of costs of Rs. 5000/- to the complainant.
8. Another Bench of the National Commission, by order dated 3/4/13, in RP No. 1034/13 in the case filed by Aviva Life Insurance Co. (India) Ltd., vs. John Jude Lobo, held that the provision of Section 13(2)(a) of the C.P. Act was mandatory and the written statement should be filed within 45 days. This conclusion was arrived at by the Lr. Bench of the National Commission, relying on a three Judge judgment of the Apex Court in Dr. J.J. Merchant & ors. vs. Shrinath Chaturvedi, III (2002) CPJ 8, as explained by another two Judge Bench of the Apex Court in Fairgrowth Investments Ltd., vs. Custodian, 2004 (II) SCC
472. In Fairgrowth Investments Ltd., (supra) the Division Bench of the Apex Court expressed their reservations with the view expressed earlier in Topline Shoes Ltd., vs. Corporation Bank, and, held that:
it is not necessary for us to expatiate on such reservation in view of the subsequent decision of this Court in Dr. J. J. Merchants case by a larger Bench in which the provisions of Section 13(1)(a) of the Consumer Protection Act were also construed. The Court categorically held that the outer period of 45 days to submit an answer of a complaint had to be adhered to strictly. Given the view expressed by a larger Bench, it would not be appropriate for us to proceed on the opinion expressed earlier by a smaller Bench in Topline Shoes.
9. The view held in Tata AIG General Insurance Co. Ltd., (supra) by the same Bench as in Aviva Life Insurance Co.
(India) Ltd., (supra)is not different, although an attempt was made to find out whether there were any exceptional reasons assigned by the OP, in the light of the another three Judge Bench judgment of the Supreme Court in Kailash vs. Nanhku & ors., (supra). In fact, we find that the ratio of both these judgments is the same.
10. In this case i.e. Tata AIG General Insurance Co. Ltd., (supra) the consumer complaint was admitted by the Maharashtra State Commission on 26/06/13 and OP was served on 24/07/13 and the OP did not file the written statement within 45 days.
The OP put its appearance through Adv. Shri. S.R. Singh on 15/10/13 but no written version was filed even on that date in as much as no reasons were given for extension of time and the State Commission held by order dated 15/10/13 that the OP had forfeited his right to file the written version by not filing the same within 45 days from the date of service by virtue of Section 13(2)(a) of the C.P. Act.
11. The Lr. Bench of the National Commission held that the order of the State Commission declining to extend time beyond 45 days was supported by the (three Judge)decision of the Apex Court in Dr. J.J. Merchant vs. Srinath Chaturvedi (supra) & other decisions (listed in para 4 of the order) and consequently no time could be extended. The National Commission also held that it must be borne in mind that the authority of Dr. J.J. Merchant vs. Srinath Chaturvedi (supra) is a direct judgment under the Consumer Protection Act, 1986 and the authority in Kailash vs. Nanhku and Ors (supra) is a judgment under order VIII, Rule 1 C.P.C.; and, if that be the case, we are unable to understand as to why any reference was at all required to be made to Kailash vs. Nanhku & ors., (supra). The Lr. Bench has even noted that the procedure of C.P.C. and C.P. Act are entirely different and that the C.P. Act envisages a summary procedure.
We may add that it also envisages a speedy procedure and even prescribes a time limit for disposal of complaints. In conclusion, the Lr. Bench of National Commission observed that in this case i.e. Tata AIG General Insurance Co. Ltd., three months time after the receipt of the notice had already lapsed and consequently the order passed by the State Commission cannot be faulted (emphasis supplied).
12. As rightly pointed out by the Bench of the National Commission in Tata AIG General Insurance Co. Ltd., (supra) the case of Dr. J.J. Merchant vs. Srinath Chaturvedi is directly on the point of a provision which the Fora under the C.P. Act are required to follow while the case of Kailash vs. Nanhku & ors., although a three Judge Bench decision of the Apex Court, is on a provision of law, i.e. Order VIII, Rule 1, of C.P.C. which provision of law the Fora are not required to follow, particularly in view of the provisions of Section 13(4) of the C.P. Act r/w Regulation 26 of the Regulations, 2005.
13. In our view, there is no question of following Kailash vs. Nanhku & ors. (a three Judge decision of the Apex Court) when there is also a three judge decision of the Apex Court in Dr. J.J. Merchant vs. Srinath Chaturvedi which is directly on the point and which decision has been subsequent explained by the Apex Court in Fairgrowth Investments Ltd., vs. Custodian (supra).
14. It appears that the view held in M/s.
Shree Ostwal Builders Ltd. & ors., (supra) and similar views held in other cases, mentioned in para 5, have now been referred to a larger Bench. The case of M/s. Dudhal Associates vs. Mr. Swatantra Kumar Mishra, 2014 I CPR 471 (on which we could not lay our hands) could also be put in the same bracket.
15. It also appears that the view taken by the Apex Court in Fairgrowth Investments Ltd., vs. Custodian (supra) is now pending for decision before the larger Bench of the Apex Court in Civil Appeal No. 10808/13 filed by New India Assurance Company Ltd., vs. Hilly Multipurpose Storage Pvt. Ltd. In our view, till the said view is changed by a larger Bench of the Apex Court, we are bound to follow the decision of the Apex Court directly on the point i.e. in Dr. J.J. Merchant & ors., vs. Srinath Chaturvedi (supra) as explained in Fairgrowth Investments Ltd., and as followed by the National Commission in Aviva Life Insurance Company Ltd., and thereafter consistently by this Commission. It may be stated that prior to the decision in Aviva Life Insurance Company (India) Ltd., this Commission was following for sometime the view in Topline Shoes. Law requires certain amount of certainty and uniformity. Till Fairgrowth Investments Ltd., is reconsidered by the Apex Court, it is this decision which is required to be followed.
16. In the overall view of the controversy, the District Forum could not be faulted in dismissing the application dated 30/7/14. We, therefore, find there is no merit in this appeal and consequently proceed to dismiss the same at the stage of admission.
[Shri. Jagdish Prabhudesai] [Shri Justice N.A. Britto] MEMBER PRESIDENT Sp/-