State Consumer Disputes Redressal Commission
Jesus Lume Mesquita vs State Bank Of India on 10 April, 2024
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI-GOA
In the matter of First Appeal 23 of 2023 in Consumer
Complaint 113 of 2021.
Before: Adv. Mrs. Varsha R. Bale, Officiating President
Adv. Ms. Rachna Anna Maria Gonsalves, Member
Mr. Jesus Lume Mesquita,
s/o late Mario Jose Mesquita,
R/o H. No. 16, Consua, Cortalim,
P.O. Verna, Goa, 403722. .....Appellant
V.
State Bank of India,
Vasco-Da-Gama, Branch,
(represented by its Branch Manager),
Vasco-Da-Gama, Goa. .....Respondent
Adv. Shri S. Aguiar present for Appellant.
Respondent absent.
DATE: 10/04/2024
JUDGMENT
[per Adv. Mrs. Varsha R. Bale, Officiating President]
1. This Appeal is directed against the Judgment and Order dated 28/04/2023 passed by the President, District Consumer Commission, South Goa. (The 'District Commission' for short) in R.A. No. 1/2023. The Appellant was the Respondent and the Respondent was the Appellant in the said Review. Parties shall hereinafter be referred to as per their status in the said Review.
12. That being aggrieved and dissatisfied with the Judgment dated 29/12/2022, the Respondent filed Review Application u/s 40 of CPA 2019. In the said Review, the Respondent raised the following grounds:
a) That there is an error apparent on face of the record and the said Order is passed without any proper reasoning of the available facts on record which are pleaded by both the Parties.
b) The said Order is passed in such a manner that the entire burden is shifted on them. The entire findings and observations made in the said Order is contrary to that of the records placed in the Court file and Proceedings that took place in the said Complaint.
c) That in the said Judgment, it is mentioned that the Complainant had relied upon the decision of the Hon'ble Supreme Court, Bengaluru in the case of G. Srinivasmurthy V/s The Branch Manager, State Bank of Mysore. However, during the course of Arguments, no such Judgment was produced and/or relied by the Counsel for the Complainant.
d) The Ld. District Commission has totally misinterpreted the provisions of Law/facts which are on record while passing the said Order and due to such misinterpretation there is gross miscarriage of Justice to them.
e) That granting the compensation of Rs.70,000/- on the ground that the Complainant might have undergone harassment, inconvenience, mental agony, sadness, frustration and anguish, there is absolutely nothing on record to prove such facts.2
f) The District Commission has not considered the facts on record and due to such ignorance there is miscarriage of Justice and there is error apparent on the face of the record.
3. The Applicant filed their reply to the Review Application vehemently denying all the contents of the Review Application and also pointed out that the Respondent has miserably failed to show that there is an error apparent on the face of record in the Order due to which there is absolutely no reason to interfere with the Judgment and Order of the District Commission.
4. That Dissenting Orders were passed by the President and Lady Member of the District Commission dated 28/04/2023. The President of District Commission by his Order, set aside the original Judgment dated 29/12/2022 and dismissed the Complaint bearing No. 113/2021, whereas the Lady Member Mrs. Nelly Pereira dismissed the Review Application.
5. That vide said Order, the President observed that "from reading the said Judgment and Order it is crystal clear that on the face of it, a burden is cast on the Applicant/OP to prove the case of the Respondent/Complainant as stated above and brought to the notice of this Commission, by the Ld. Advocate for Applicant, which is not permissible in law. It is for the Respondent/Complainant, to stand on its own feet and certainly we cannot expect the Applicant/OP to prove the case of the Respondent/Complainant. Therefore the burden cast on the OP/Appellant at Para 27 of the Judgment and Order is a clear cut error on the face of its 3 Judgment & Order and which forms very basis of the said Judgment and Order. According to me, if this Judgment and Order is not reviewed, in that case it will set bad precedent".
6. The President further observed that "The compensation of Rs.70,000/- granted by this Commission, for harassment, inconvenience, mental agony, sadness and frustrations, is without any iota of evidence produced by the Respondent/Complainant. That there is no basis for granting such huge bonanza, when subject matter is of Rs.22,547.20/- on which Respondent/Complainant claimed interest. Here, I do agree with the Ld. Advocate for Applicant that this Commission has granted the said compensation without any evidence produced by the Respondent/Complainant, and which is almost 3 times the amount claimed (subject matter) in the complaint".
7. The President also observed that "no doubt that the power to review any order has been vested in the District Commission by virtue of said Section 40 of CPA 2019, if there is an error apparent on the face of the record, either of its own motion or on an application made by any of the parties within 30 days of such order, which was not available under the old CPA 1986. The legislature thought it fit to incorporate such provision in the new CPA 2019, so that if any wrong orders are passed knowingly or unknowingly by the Commissions, the same can be reviewed, without sending party to the Appellant Commission".
8. The President held that he is of the considered opinion that this is a fit case for reviewing the said Judgment and Order dated 29/12/2022. Accordingly the said 4 Judgment and Order is reviewed and set aside and the Complaint No. 113/2021 is dismissed.
9. By the second Order passed by the Lady Member Mrs. Nelly Pereira, she observed that the Judgment and Order was passed by the District Commission after applying its Judicial mind and taking into consideration the entire records. She further observed that "in the Review Application, the Applicant (original OP) has prayed for relief asking for fresh hearing/dismissal of the Complaint, for which he should go in Appeal. Under Review Application an erroneous decision is not permissible to be corrected by asking for fresh hearing. It is well settled principle that review petitions are not by way of Appeal and have to be strictly confined to the scope and ambit of Section 40 of CPA 2019. The Applicant has remedy to file Appeal before the Hon'ble Supreme Court against the Judgment and Order passed by this Commission".
10. The Lady Member further held that there are no such grounds are made out by the Applicant within the scope of Section 40 of CPA 2019, so as to allow the Review Application. The Review Application is not maintainable and hence dismissed.
11. The Respondent is aggrieved by the Order passed by the President, District Commission, South.
12. The Respondent filed the Written Arguments before this Commission. Inspite of opportunities the Applicant failed to file Written Arguments. We have also heard Oral Arguments on behalf of Respondent. We have gone through the entire material on record.
513. The Adv. for Respondent argued that the President of District Commission completely changed the observations which is not permissible in Review. He completely reversed the Order/views.
14. The Adv. for Respondent cited various citations In Rama Sahu (Dead) through LR's & Ors. V/s Vinod Kumar Rawat & Ors. Hon'ble Supreme Court held that 'the review power cannot be exercised as an inherent power and nor can Appellate power be exercised in the guise of exercising the power of review'.
15. The Adv. for Respondent further argued that whatever stated in Judgment and Order is contradictory in Review Order of the President, District Commission. He also pointed out that President should have borne in mind that he is passing an Order in Review and not in Appeal. He further argued that this matter cannot be referred to 3rd Member as per u/047 r.5 CPC "in the case of review, the same Court or the judge that passed the Order sought to be reviewed, would be competent to review the same. Thus in substance, a review amounts to reconsideration of its own decision by the very same Court. The Adv. for Respondent prayed to set aside the Order dated 28/04/2023 passed by the President, District Commission and to uphold the Judgment & Order passed on 29/12/2022.
16. After going through the arguments and records we observed that the Order dated 28/04/2023 passed by the District Commission is contradictory to the Judgement & Order passed on 29/12/2022. The President has corrected his own Order. The observations 6 are completely changed. He even observed that HDFC has not been impleaded not been made party. One should be remembered that the power of Review can be exercised for correction of a mistake but not to substitute latter a view. It should not be confused with Appellate Powers. The Review Court cannot sit in Appeal over its own Order while exercising the Review Jurisdiction. The Power of Review can be exercised for correction of a mistake but not to substitute a view. The Review cannot be treated like an Appeal. At most the President, District Commission, should have passed the dissenting Order if he was not satisfied with the observations in Judgment & Order dated 29/12/2022. The reasoning and findings of the Court cannot be changed and corrected. It cannot be considered as error apparent on face of the record. It is well settled principle that Review Petitions are not by way of Appeal and have to be strictly confined to the scope and ambit of Section 40 of CPA 2019.
17. We also observed question whether one can directly challenge the reasoning and if an Appeal ought to have been filed. Also another observation is that Revision Petition cannot be allowed to be treated as an Appeal in disguise. Also the opinion has been reversed without consent of the Member clearly demonstrating that the President has completely superseded his powers and stepped into the shoes of the Appellate Body. We also find that what the President has done is ultravires and ought not to have acted as the Appellate Court/Body.
18. A series of decisions produced by the Adv. for Respondent wherein it has been held that power to review may not be exercised on the ground that decision 7 was erroneous on merits as the same would be the domain of the Court of Appeal. Power of review should not be confused with Appellate Powers as the Appellate Powers can correct all manner of errors committed by the subordinate Court.
19. O.47 r5 CPC does not apply here as the special provision under statute is provided under section 39(3) of CPA 2019. Therefore CPC should not be applied. CPA 2019 is to be followed here. As per section 39(3) of CPA "In any proceedings conducted by the President and a Member and if they differ on any point or points, they shall state the point or points on which they differ and refer the same to another Member for hearing on such point or points and the opinion of the majority shall be the Order of District Commission". The Order passed on 28/04/2023 is not an effective Order. Actually the Appeal is premature as the single Order doesn't work.
20. However, the President and Lady Member of District Commission should have referred the said matter to the third Member but both failed to do so and in our considered opinion we are in the affirmative that the Review Application is to be referred to the third Member to decide accordingly as per section 39(3) of CPA 2019 and hence the Impugned Order dated 28/04/2023, cannot be set aside as it has to be referred to the third Member as per section 39(3) of CPA 2019.
21. In the result, we pass the following:
ORDER
a) The Appeal is partly allowed with no order as to costs.
b) The Review Application is referred to the third Member.8
c) The Review Application is to be decided within one month from the passing of this Order.
d) Pronounced in Open Court.
e) Proceedings in the matter stands closed.
[Adv. Mrs. Varsha R. Bale] Officiating President [Adv. Ms. Rachna Anna Maria Gonsalves] Member SN 9