Calcutta High Court (Appellete Side)
Chairman vs Asit Kumar Hazra & Ors on 1 October, 2010
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
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Form No.J(2) IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
C.O. No. 2321 of 2009
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Chairman, Indian Oil Corporation & Anr.
Versus
Asit Kumar Hazra & ors.
For the petitioners: Mr. M. K. Das,
Mr. D. Raha,
Mr. S. Chakraborty.
For the opposite parties: Mr. A. K. Das,
Mr. A. K. Banerjee,
Mr. S. N. Chattopadhyay.
Heard On: 15.09.2010.
Judgement On: October 1, 2010.
Prasenjit Mandal, J.: This application is at the instance of the
petitioners and is directed against the order no.9 dated May 20,
2009 and the final order dated May 29, 2009 passed by the learned
State Consumer Disputes Redressal Commission, West Bengal in
appeal being number S. C. Case No.FA/08/469 of 2008.
The complainant/opposite party no.1 instituted a complaint
being No.HDE Case No.156 of 2006 against the petitioners praying
for directing the opposite parties to pay to the complainant a sum
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of Rs.5,00,000/- towards compensation for the unnatural death of
his wife caused due to leakage of gas from the defective gas
cylinder supplied by the opposite party no.3, on behalf of the
opposite party nos.1 & 2 and other reliefs. In that complaint
cast, the opposite parties appeared and upon recording evidence on
behalf of both the parties, the learned District Consumer Forum
allowed the complaint on August 28, 2008 on compromise against the
opposite party nos.4 & 5 by passing an award of Rs.90,000/- to the
complainant as compensation and dismissing the complaint case
against the petitioners and the proforma opposite party no.2
herein. Challenging the said order, an appeal being no.FA/08/469
of 2008 was preferred by the complainant before the learned State
Consumer Disputes Redressal Commission, West Bengal. That appeal
was fixed for hearing on April 28, 2009 and on that day the
learned Advocate for the petitioners could not reach the State
Commission in time and he filed a written note of argument against
the appeal preferred by the complainant. The appellate authority,
however, granted leave to mention the matter after service of
notices upon the parties. Accordingly, the petitioner served a
notice upon the opposite parties and on May 4, 2009 they filed an
application for putting up the case. But the learned State
Commission rejected that prayer by an order dated May 20, 2009 and
fixed the next date for delivery of judgment. Thereafter, on May
29, 2009, the State Commission delivered the judgment directing
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the respondent nos.1 to 3 to pay a sum of Rs.3,00,000/- as
compensation to the complainant/opposite party herein. Being aggrieved by such order of the State Commission, this application has been filed by the respondent nos.1 & 2/petitioners herein.
Mr. M. K. Das, learned Advocate appearing on behalf of the petitioners, submits that the petitioners could not appear on the date fixed for hearing the appeal, that is, on April 28, 2009 because he was late due to traffic jam and on that day, he tried to file a power and a written note of argument against the appeal. But the opposite party refused to accept the same on the ground that hearing was completed by that time. Therefore, the petitioners could not place their grievance before the appellate forum properly. He also contends that as per verbal direction of the learned Tribunal, the petitioners served a notice to the opposite parties and they filed an application on May 4, 2009 for putting up the record. But that application was rejected by the order dated May 29, 2009. And then, the learned Commission delivered the judgment on May 29, 2009. So, the petitioners could not get adequate opportunity to ventilate their grievance and they were directed to pay a considerable sum of Rs.3,00,000/- as compensation. He also contends that when there is a perverse finding or there is no evidence at all to support the judgment, this Court exercising the jurisdiction of superintendence can well entertain the application under Article 227 of the Constitution 4 and to pass appropriate orders for the ends of justice. In support of his contention Mr. Das has referred to the decision of Hooghly Co-operative Agriculture & Rural Development Bank Ltd. Vs. Nemai Chandra Ghosh reported in AIR 2007 Cal 230 (passed by a learned Single Bench of this Hon'ble Court).
On the other hand, Mr. Banerjee, learned Advocate appearing on behalf of the opposite party, submits that the District consumer forum gave adequate opportunities to the petitioners and other opposite parties, thereafter, the District Consumer Forum passed the order granting 90,000/- as compensation against the opposite party nos.4 & 5 only and it dismissed the claim against the opposite party nos.1 to 3. Being not satisfied with such amount, the complainant preferred an appeal. But on the date of hearing of the appeal, the petitioners did not appear at all. As such, the hearing was treated as completed. The learned District Consumer Forum as well as the State Commission discussed the evidence on record in details and thereafter came to their respective findings and such findings are not without any materials at all. These findings cannot be described as perverse also. Under the circumstances, there is nothing to interfere with the impugned order of the learned State Commission.
Moreover, when there is a provision for moving the higher forum, namely, the National Commission no revisional application lies. In support of his decision, Mr. Banerjee appearing for the 5 opposite party has referred to the decision of Manager, Burdwan Co-operative Agriculture and Rural Development Bank Ltd. Vs. Anath Bandhu Dhara reported in 2009 (2) CLJ (Cal) 685 passed by a learned Single Judge, Justice Tapan Mukherjee (as His Lordship then was) wherein he has held that the revisional application before the High Court is not maintainable.
Therefore, the point that arises for consideration is whether the impugned order can be sustained.
Upon hearing the learned Advocate of both the sides and on perusal of the materials on record, I find that the learned District Consumer Forum disposed of the application of the complainant granting Rs.90,000/- only against the opposite party nos.4 & 5 as compensation and the complaint against the opposite party nos.1, 2 & 3 was dismissed. Thereafter, the appeal preferred by the complainant before the State Commission came for hearing and on May 20, 2009 the opposite party, namely, the Indian Oil Corporation, could not appear and filed a put up petition raising the contention that it was precluded from appearing previously and it wants to file written notes of argument along with a vakalatnama. That application was rejected on the ground that the respondent got enough opportunity to take part in the present proceedings and he came with such a prayer when the hearing was over. Under the circumstances, the application was dismissed upon considering the submissions forwarded by both the 6 sides. Such orders, I am of the view, cannot be said to be without jurisdiction. The respondents before the Appellate Authority even did not file the vakalatnama and even they did not participate in the appeal. So, the appellate authority had nothing but to deal with the appeal in accordance with law. This cannot be taken as the fact that the Appellate Authority has failed to exercise its jurisdiction. Upon perusal of the materials on record, I find that the District Consumer Forum as well as the Appellate Authority has discussed the evidence on record.
There is no dispute that the complainant was a bona fide customer under the Indian Oil Corporation and that the cylinder was received by the complainant from the opposite party no.3, an authorised agent of the petitioners, on February 3, 2006. It is unfortunate to note that on the selfsame day, the accident took place from the said gas cylinder causing death of the wife of the complainant. Under the circumstances, the appellate authority has come to the conclusion that the respondent nos.1, 2 & 3 are also jointly and severally liable to compensate the complainant adequately and accordingly granted compensation of Rs.3,00,000/- against them. Such finding is based on the evidence on record by the Appellate Authority. Therefore, it cannot be said that the finding of the Appellate Authority is perverse. The decision of Hooghly Co-operative Agriculture & Rural Development Bank Ltd. 7 (supra) lays down that the Hon'ble High Court can entertain an application under Article 227 of the Constitution when the findings are perverse or that there is no evidence at all. In the instant case, the present application does not fall within that category because there is sound evidence holding the liability of the respondent nos.1 to 3. For that reason, this application is bound to fail on merits.
Moreover, there is a specific provision for moving the National Commission, if any party is dissatisfied with the order passed by the State Commission under Section 21(b) of the Consumer Protection Act, 1986. The decision of Manager, Burdwan Co- operative Agriculture and Rural Development Bank Ltd. (supra) is very much clear that after dismissal of appeal by the State Commission, it is open to the complainant to file an appropriate application before the National Commission against the appeal under Section 21(b) of the Act of 1986. This decision is very much appropriate in the instant case, I hold. But, instead of taking that recourse, this application has been filed under Article 227 of the Constitution of India. When an alternative efficacious relief is provided under the Special Act for speedy disposal of the matter, that provision must be adhered to first.
In that view of the matter, I am of the view that this application is not also maintainable at all. The order impugned should be sustained. The application is, therefore, dismissed. 8 It is, however, recorded that since the petitioners have deposited a sum of Rs.3,00,000/- as a condition to grant the order of interim stay before the learned Registrar General, they are at liberty to withdraw that amount and the learned Registrar General shall release the money forthwith in favour of the petitioners before the ensuing Puja Vacation.
Considering the circumstances, there will be no order as to costs.
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.)