State Consumer Disputes Redressal Commission
Prem Kumar vs Thai Airways International Public ... on 21 August, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Revision Petition No.39 of 2023
Date of institution : 15.05.2023
Reserved on : 10.08.2023
Date of decision : 21.08.2023
1. Prem Kumar (UID No.7055 9221 7359), aged about 69 years,
son of Thakar Dass.
And
2. Sudesh Gugnani, aged about 67 years, wife of Sh. Prem Kumar
both the petitioners resident of H.No.282, Shubhash Nagar,
Ward No.14, Sunam, District Sangrur, Punjab-148028.
....Petitioners/Complainants
Versus
Thai Airways International Public Company Limited, Room No.OL-28,
4th Floor, Terminal Building, Terminal-3, Indira Gandhi International
Airport, New Delhi-110037, through its officer-in-
charge/Manager/Authorized Signatory.
Email: [email protected],
.....Respondent/Opposite Party
Revision petition under Section 47(1)(b) of
the Consumer Protection Act, 2019 against
the order dated 20.03.2023 passed by the
District Consumer Disputes Redressal
Commission, Sangrur.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Revision Petition No.39 of 2023 2
1) Whether Reporters of the Newspapers may be
allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Argued by:-
For the petitioners : Sh. Armaan Gagneja, Advocate For the respondent : Sh. S.S. Sharma, Advocate ..................................................................................
JUSTICE DAYA CHAUDHARY, PRESIDENT The present Revision Petition has been filed under Section 47 (1)(b) of the Consumer Protection Act, 2019 (in short "The Act") to challenge the impugned order dated 20.03.2023 passed by the District Consumer Disputes Redressal Commission, Sangrur (hereinafter called as the "District Commission") in Consumer Complaint No.792 of 2022.
2. Briefly, the facts of the case as made out by the petitioners/complainants and the same are also necessary for decision of the present Revision Petition are that the petitioners/complainants filed a complaint before the District Commission by mentioning certain acts of 'deficiency in service' on the part of the respondent/OP and the hardship which was faced by them at IGI Airport, Delhi with regard to their luggage in the flight No.TG-466 which was being operated by the respondent/OP.
3. The District Commission while issuing notice to the respondent/OP also issued directions to appear and to file reply by 23.01.2023. The respondent/OP was duly served for 23.01.2023 but on that day none had appeared on behalf of respondent/OP before the Revision Petition No.39 of 2023 3 District Commission. It was observed by the District Commission that a period of more than 30 days had expired and respondent/OP had failed to appear before the District Commission and resultantly the respondent/OP was proceeded exparte vide order dated 23.01.2023. The application was moved by the respondent/OP to set aside the exparte order dated 23.01.2023. Reply to said application was filed wherein certain preliminary objections regarding maintainability of the application were raised stating therein that there was no provision for setting aside its own exparte order by the District Commission as per the provisions of the Act. However, the application was allowed vide order dated 20.03.2023 and said order has been challenged before this Commission by way of filing the present Revision Petition.
4. Mr. Armaan Gagneja Advocate, counsel appearing for the petitioners has submitted that the District Commission had failed to observe that the issue involved in the present petition has already been decided by the Hon'ble Supreme Court in the judgment titled as "Rajeev Hitendra Pathak & others Versus Achyut Kashinath Karekar & another" 2011(9) SCC-541. Learned counsel also submits that initially the Hon'ble Supreme Court had taken a view as per the earlier judgment of case titled as "Jyotsana Arvind Kumar Shah & others Vs. Bombay Hospital Trust" 1999(4) SCC-325 stating therein that the State Commission was not having any power to review or recall its exparte order but in the subsequent judgment of case titled as "New India Assurance Co. Lmited Vs. R. Srinivasan" 2000(3) SCC- 242, the Hon'ble Supreme court had taken a different view. Learned counsel has further submitted that the matter was referred to the larger Revision Petition No.39 of 2023 4 Bench to consider as to whether the State Commission was having power to recall exparte order or not. Said larger Bench has held in its judgment of Rajeev Hitendra Pathak (Supra) that the District Forum and State Commission were not having any power to set aside the exparte order and the power of review which has not been given by the Statute cannot be exercised. Learned counsel has further submitted that said precedent was followed by this Commission in case titled as "Nipur Sharma Vs. G.L.C. Members Cooperative House Building Society Limited" F.A. No.366 of 2021, decided on 21.10.2021, wherein it was observed that the District Commission was not having any power to set aside the exparte order and as such the order passed by the District Commission was held to be without any jurisdiction and it was also said to be bad in the eyes of law. Learned counsel has further submitted that the District Commission had passed the impugned order without any application of mind and the same was not sustainable in the eyes of law and accordingly it was liable to be modified and the Revision Petition deserves to be allowed.
5. Mr. S.S. Sharma Advocate, learned counsel appearing for the respondent submits that the judgment of case Rajeev Hitendra Pathak (Supra) was passed when there was no provision in the Act to review the order passed by the District Commission as the present Revision Petition has been filed under the Act, 2019 wherein a specific provision has been provided for granting the power of review to the District Commission. Learned counsel has also relied upon judgment of State Commission Orissa of case titled as "Branch Manager, SBI Vs. Mr. Rajanikanta Panigrahy", R.P. No.20 of 2022, decided on Revision Petition No.39 of 2023 5 31.03.2022 wherein it has been held that the review is maintainable in case there is error apparent on the record and the Legislation has to be understood or interpreted liberally by considering the need of the people. The said decision has been relied upon by the District Commission. Learned counsel has further submitted that in case the reasons had been duly explained for non-appearance in any case and the application had also been moved without any delay, the exparte order should have been set aside. Learned counsel also submits that in the present case there was a genuine/bonafide reason on the part of counsel for the respondent/OP who appeared before the District Commission on the date as noted down by him in his diary i.e. 24.01.2023 and thereafter immediately without any delay he took step for setting aside the exparte order. Learned counsel has further submitted that the impugned order passed by the District Commission is liable to be upheld keeping in view the facts and circumstances of the case.
6. Heard the arguments of learned counsel for both the parties. We have also carefully perused the orders dated 20.03.2023 as well the record of the case.
7. Learned counsel for the petitioners has submitted that the District Commission was not having any power to review or recall its exparte order. The appellants have relied upon the judgment of Hon'ble Supreme Court of case Rajeev Hitendra Pathak (Supra) in support of his arguments. On the other hand, learned counsel for the respondent/OP has submitted that the said judgment was passed by Revision Petition No.39 of 2023 6 the Hon'ble Supreme Court under the provisions of the new Consumer Protection Act, 2019 which had not come into force. Section 40 of the Act, 2019 has conferred the power of review upon the District Commission. The respondent/OP has also relied upon the judgment of State Commission, Odisha of case "Mr. Rajanikanta Panigrahy"
(Supra) in support of his contentions.
8. The impugned order dated 20.03.2023 passed by the District Commission is reproduced as under:-
"1. The learned counsel for OP filed an application for setting aside the exparte order dated 23.01.2023 on the ground that inadvertently the clerk of the counsel had wrongly noted down the date of hearing i.e. 24.1.2023 instead of 23.1.2023 in his diary, as such, OP could not appear before this Commission.
2. In reply to the application, it is stated that the application filed by OP is wrong and has been denied and has further stated that the story mentioned in the application is false and concocted one and have prayed for dismissal of the application.
3. We have heard the learned counsel for the parties and find that the complaint is at the initial stage.
4. The learned counsel for OP has placed on record order dated 22.11.2021 passed by the Hon'ble Punjab State Commission in R.P. No.29 of 2021 in case titled PNB Met Life Insurance Company etc. vs. Joginder Pal etc. wherein in para number 18 of the above said order, it has been held that "the discretion was vested with the District Commission to serve the ends of justice and to achieve the object of speedy disposal of case by considering the principles of natural justice. It is necessary to prevent the miscarriage of justice and to meet the ends of justice, which is possible only by giving one more opportunity to the petitioners to put up their case after setting aside the impugned orders and to decide the same afresh on merits in accordance with law by hearing both the parties. Otherwise also, the natural justice demands that no one should be left unheard and adequate opportunity should be given to the parties to the case. The order passed by the District Commission is not only unlawful but also contrary to provisions and the same is liable to be set aside."Revision Petition No.39 of 2023 7
5. Similar view has been taken by the Hon'ble State Commission, Punjab, Chandigarh in First Appeal No.229 of 2021 titled Vmake Visas Pvt. Ltd. Versus Babu Singh etc. decided on 18.1.2022.
6. In view of above discussion and the legal position as explained above, we allow the application of OP subject to payment of costs of Rs.1000/- by OP to the complainant.
7. The reply of complaint is already on the file. Now, to come up for evidence of the complainant and payment of costs on 18.05.2023."
On perusal of above order, it is apparent that while setting aside its own exparte order, the District Commission has not relied upon Section 40 of the Act, 2019. While setting aside its own exparte order, the District Commission has not mentioned even a single word or pointed any law under which the District Commission has the power to set aside its own exparte order. Moreover, the District Commission has not mentioned in the impugned order dated 20.03.2023 that there was an error apparent on the face of the record in the exparte order 23.01.2023 passed by the District Commission.
9. The issue involves in the present appeal is as to whether the District Commission has jurisdiction to set aside its own exparte order or not?
10. The complaint came up for hearing on 23.01.2023 and respondent/OP did not appear and it was proceeded against ex-parte by the District Commission, vide order dated 23.01.2023, which is reproduced as under:-
"As per office report, RC sent to OP has not been received back till today. A period of more than 30 days has elapsed but none Revision Petition No.39 of 2023 8 has appeared for OP. It is 3:30 PM. As such OP is proceeded against exparte. To come up on 13.04.2023."
Respondent/OP moved an application for setting aside ex-parte order dated 23.01.2023 and the same was allowed, vide order dated 20.03.2023, as mentioned above.
The appellant/complainant has challenged the impugned order dated 20.03.2023. The relevant provision of Section 40 of the Act is re- produced as under:-
"40. The District Commission shall have the power to review any of the order passed by it 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 thirty days of such order."
11. In view of said provision, as mentioned above we are of the considered opinion that the District Commission has set aside its own exparte order without saying anything as to how it was a case of any error apparent on the face of record, which is contrary to the provision of Section 40 of the Act. The controversy is squarely covered by the judgment of the Hon'ble Supreme Court in Rajeev Hitendra Pathak's case (supra) wherein it was held that "the State Commission or District Consumer Forum have no power to set aside their own ex- parte orders". Paras 36, 37, 38 and 39 of said judgment are relevant, which are reproduced as under:-
"35. We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned counsel for the parties.Revision Petition No.39 of 2023 9
36. On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
37. The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly.
38. In our considered opinion, the decision in Jyotsana's case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained.
39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review or recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law."
12. Moreover, Section 51(5) of the Act grants power to the National Commission to set aside the ex-parte orders passed by the State Commission, and section 61 of the Act grants power to the National Commission to set aside its own ex-parte orders. The District Revision Petition No.39 of 2023 10 Commission has not discussed any provision of the Consumer Protection Act, 2019 as to how the District Commission can set aside the ex-parte orders passed by it. Moreover, there is no error apparent on the face of the record. The District Commission has not been given any power to set aside ex parte order and also that the power which has not been expressly given by the Statute cannot be exercised. The judgment relied upon by the respondent/OP is not applicable in the present case. The respondent was having option either to approach the appropriate Fora for setting aside the exparte order passed by the District Commission but no such efforts were made.
13. In view of above discussion, the impugned order is without jurisdiction and competency, which is bad in law. Accordingly, the present Revision Petition is allowed and the order dated 20.03.2023 passed by the District Commission is set aside with the direction to the District Commission to proceed with the complaint and decide the same expeditiously as early as possible preferably within a period of three months from the date of receipt of the copy of the order passed by this Commission. The respondent/OP is at liberty to avail appropriate remedy before the appropriate Forum/Court.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER August 21, 2023.
MM