State Consumer Disputes Redressal Commission
National Insurance Company Limited, vs Wings Aviation Private Limited on 19 June, 2023
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BEFORE THE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION OF TELANGANA AT HYDERABAD
RP.NO.181 OF 2022
AGAINST THE ORDERS IN CC.NO.682/2021, DISTRICT
CONSUMER COMMISSION-II, HYDERABAD
Between:
1.National Insurance Company Limited, Mumbai Division, BO XVI (240600), (Behind Excelsior Theater) Commercial Union House, 9, XVI First Floor, Wallace Street Fort Mumbai, Maharastra-400 001.
2. National Insurance Company Limited, Rep. by Authorized Signatory, Regd. Office 3, Middleton Street Kolkata , 700 071.
...Revision Petitioners/ Opposite Parties No.1 & 2 And :
WINGS Aviation Private Limited, 1-1-256/B, Plot No.108, Adjacent to Air Port Road, Begumpet, Hyderabad - 500 016, Rep. by its Managing Director, Prabhakar Reddy, S/o Y.Bal Reddy, Aged about 57, R/o 1-1-256/B, Plot No.108, Adjacent to Air Port Road, Begumpet, Hyderabad -500 016.
....Respondent/ Complainant Counsel for Revision Petitioners/Opposite Parties No.1 & 2:
M/s KRR Associates.
Counsel for Respondent/Complainant : M/s P.Vinayaka Swamy.
QUORUM:
HON'BLE SMT. MEENA RAMANATHAN, IN-CHARGE PRESIDENT & HON'BLE SRI K. RANGA RAO, MEMBER-JUDICIAL MONDAY, THE 19th DAY OF JUNE TWO THOUSAND TWENTY THREE ****** 2 Order: (Per Hon'ble Sri K.Ranga Rao, Member-Judicial)
1. This Revision Petition is filed by the Petitioners/Opposite Party No.1& 2 under section 47(1) (a) (iii) of Consumer Protection Act, 2019, praying this State Commission to allow the Revision Petition by setting aside the Docket Order dated 19.09.2022 passed in C.C.No.682/2021 and to permit the petitioners/opposite parties No.1 & 2 to file their written version & documents and to pass such other order or orders as this Commission deems fit and proper in the circumstances of the case.
2. The following few facts will help to know the background of filing the present Revision Petition by the petitioners/opposite party No.1 & 2.
3. The Respondent/complainant filed Consumer Complaint vide C.C.No.682/2021 before the District Consumer Commission-
II, Hyderabad, praying the District Commission to direct the opposite parties No.1 & 2 to pay an amount of Rs.98,00,000/- (Rupees ninety eight lakh only) with interest @ 12% per annum and costs of Rs.1,00,000/- (Rupees one lakh only).
4. As seen from the Docket of the said Consumer Complaint, the same was registered and numbered as C.C.No.682/2021 on 17.11.2021 and notice was ordered in the same to the opposite parties and C.C. was posted to 20.12.2021 for the appearance of the opposite parties.
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5. The Docket proceedings dated 20.12.2021 shows that Advocate, Sri K.Rajeshwar Rao filed a memo, offering vakalat for opposite parties. Material papers were served to him. C.C. was adjourned from 20.12.2021 to 21.01.2022 for vakalat and written version of opposite parties.
6. The Docket proceedings dated 21.01.2022 shows that vakalat was filed for opposite parties No.1 & 2, the matter was adjourned to 09.02.2022 as a last chance for filing the written version of opposite parties No.1 & 2.
7. The Docket proceedings dated 09.02.2022 shows that the C.C. was adjourned at request to 25.02.2022 for the written version of opposite parties No.1 & 2. The Docket proceedings dated 25.02.2022 shows that the C.C. was again adjourned at request of opposite parties finally to 09.03.2022, no further time will be granted.
8. The Docket proceedings dated 09.03.2022 shows that the C.C. was adjourned to 31.03.2022 in view of the memo filed by the opposite parties No.1 & 2.
9. The Docket proceedings dated 31.03.2022 shows that the opposite parties No.1 & 2 filed memo with the Stay order and the matter was adjourned to 05.05.2022.
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10. At this juncture, it is to be mentioned here for the purpose of clarification that the opposite parties No.1 & 2 without filing their written version, filed an application before the District Consumer Commission on 09.03.2022 stating that the District Consumer Commission, has no jurisdiction to adjudicate the dispute in C.C., as the same is commercial transaction. The said application was numbered as SR.238/2022, but the District Commission returned the said application on 24.02.2022 stating that all the issues including the preliminary objections if any, will be decided while disposing the main Consumer Complaint only.
11. The Opposite Parties preferred a Revision vide RP No.21/2022 against the said orders in IA SR No.238/2022 in C.C.No.682/2021 of the District Consumer Commission-II, Hyderabad.
12. The State Commission allowed the said Revision on 25.04.2022 and the endorsement of the District Forum, dated 24.02.2022 directing the return of the IA is set aside. Further the District Forum is directed to take IA on file, give notice to the Respondent on the said IA and dispose of the same on merits in accordance with law.
13. In view of the orders of the State Commission, in R.P.No.21/2022, the District Forum registered the said IA SR 238/2022 as IA No.129/2022 in C.C.No.682/2021.
14. Now coming to the Docket proceedings in the main C.C., the District Forum on 31.03.2022 as opposite parties No.1 & 2 filed 5 memo with stay order in R.P.No.21/2022, adjourned the main C.C. to 05.05.2022 and from 05.05.2022 to 18.05.2022 and from the said date to 03.06.2022 and from 03.06.2022 to 17.06.2022 and from 17.06.2022 to 01.07.2022.
15. The Docket proceedings dated 01.07.2022 in the main C.C., shows that IA No.129/2022 is pending and hence, for hearing, adjourned to 20.07.2022 and from 20.07.2022, the IA was posted to 19.08.2022, on which date the District Forum dismissed IA No.129/2022 and posted the C.C. to 19.09.2022 for written version of opposite party finally and made it clear that no further time will be granted.
16. The Docket Proceedings dated 19.09.2022 shows that as no written version was filed by the opposite parties, despite completion of statutory period, hence, opposite parties were set ex- parte and the C.C., was posted to 14.10.2022 for the evidence affidavit of the complainant.
17. Aggrieved by the above Docket Order, dated 19.09.2022, the petitioners/opposite parties No.1 & 2 preferred the present R.P. No.181/2022.
18. The petitioners/opposite parties in their petition affidavit, which runs in to six pages containing of 20 paragraphs mentioned as to the merits of the main C.C. and ultimately prayed to allow the R.P., by setting aside the Docket Order, dated 19.09.2022 and to permit them to file the written version & the documents to 6 decide their case or else irreparable loss and hardship would be caused to the Petitioners/opposite parties Insurance Company.
19. The Respondent/Complainant filed counter which runs into four pages, wherein, he vehemently opposed the allowing the Revision Petition by setting aside the Docket Order of the District Commission, dated 19.09.2022 and submitted that on the first date of appearance which was on 20.12.2021, the opposite parties appeared and from the said date they did not file written version within the stipulated period of 45 days, yet, in view of cantankerous litigation engendered by the petitioners/opposite parties, by way of filing IA, as to the maintainability of the Consumer Complaint, the District Consumer Commission, liberally granted the adjournments and ultimately on 19.09.2022, set the opposite parties ex-parte as they failed to file the written version within the stipulated period and prayed to dismiss the Revision Petition. The Respondent/Complainant also placed reliance on the case law in New India Assurance Company Limited vs. Hilli Multipurpose Cold Storage Pvt., Ltd., (2020), 5 Supreme Court cases 757", in support of his submission for dismissal of Revision Petition.
20. Heard the arguments of both sides.
21. The point that arises for consideration is whether the Revision Petition deserved to be allowed by setting aside the Docket Order, dated 19.09.2022 passed by the District Consumer Commission-II, Hyderabad, in C.C.No.682/2021.
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22. To decide the above point for consideration, we have carefully examined Revision Petition, Counter Affidavit, considered the case law, relied on the Respondent/Complainant and also carefully scanned the Docket proceedings since inception of the complaint up to 19.09.2022, on which date the impugned Docket Order was passed and upon the same at the very outset we would like to make it clear that neither parties and the District Commission have not followed the provision of law under Section 38(3) (a) of the Consumer Protection Act, 2019 and the settled law about considering the point for counting of period of 45 days for filing written version by the opposite parties.
23. The five judges Constitutional Bench of the Hon'ble Supreme Court of India, in the case of "New India Assurance Company Limited vs. Hilli Multipurpose Cold Storage Pvt., Ltd., (2020), 5 Supreme Court cases 757, examined the provision of law for filing written version by the Opposite parties U/s 38(3) (a) and also examined as to from when the period of limitation starts for counting the period of 45 days for filing the written version and categorically held that the prescribed period of 45 days i.e. (Period of 30 days along with discretionary extension of time up to 15 days"., is mandatory and all the District Commissions have no power to extend the time for filing the written version beyond 45 days. Similarly, the Hon'ble Supreme Court of India in the above case law, further held that "the commencement point of limitation of 30 days, would be from the date of Notice, accompanied by a copy of complaint and not merely a receipt of Notice, as the response has to 8 be given within stipulated time, which is mandatory, non extendable beyond maximum 45 days), to the averments made in the complaint.
23. The Hon'ble Supreme Court of India, in the above case law referred to Regulation No.10 of Consumer Protection (Consumer Commission procedure) Regulations 2020. The said Regulation No.10 deal about the issue of the notice after the C.C. is numbered. Clause 5 of the above Regulation No.10- Issue Notice- reads as follows:- Clause 5 (along with the notice copy of the complaint, Memorandum of grounds of appeal or petition, as the case may be and other documents filed shall be served upon the opposite party or Respondent.
24. Thus, from cumulative reading of Section 38(3) (a) and the Regulation No.10 (5) titled "ISSUE NOTICE" makes it abundantly clear that the starting point of limitation for counting 45 days for the opposite party to file their written version is from the date of service of notice on the opposite parties along with the copy of the complaint and documents mentioned in the complaint.
25. In the case on hand, the Docket proceedings which we referred to supra in the chronological order, shows that after the Consumer Complaint was numbered, notice was ordered by the District Commission to the opposite parties and posted the matter to 20.12.2021 for the appearance of the opposite parties, on which date Advocate, Sri K.Rajeshwar Rao, having offered to file vakalat for the opposite parties, received the material papers. Thus, as the material papers filed by the complainant, were served to the 9 Advocate of the opposite parties on 20.12.2021, the starting point of the limitation for computing the mandatory period of 45 days for filing their written version starts from 20.12.2021 and from the said date the mandatory period of 45 days shall be completed by 02.02.2022. So, the opposite parties shall file their written version on or before 02.02.2022. But as seen from the Docket explosion, the District Consumer Commission without application of its mind to the said relevant provision of law, i.e. Section 38(3) (a) of Consumer Protection Act, 2019 and Regulation No.10 of Consumer Protection Act, (Consumer Commission Procedure) Regulation 2020 and to the settled law of the Hon'ble five judges Constitutional Bench of the Hon'ble Supreme Court of India, in the New India Assurance Company Limited, Case (Mentioned supra), went on granting adjournments, so liberally up to 19.09.2022 and it shows that the District Commission granted seven months seventeen days, beyond the mandatory period of 45 days for filing the written version and the same is against the relevant provision of law of Consumer Protection Act, for filing the written version and also the binding precedent of the Hon'ble Supreme Court, in the New India Assurance Company Limited, mentioned supra. Thank God !! the District Commission at last set the opposite parties ex-parte on 19.09.2022 for not filing the written version, despite completion of statutory period.
26. Having examined the totality of the facts and the relevant provision of law of Consumer Protection Act and the binding precedent of the Hon'ble Supreme Court of India in the New India 10 Assurance Company Limited, we are of the considered opinion that this Revision Petition is liable to be dismissed, as not even a single day can be extended beyond the mandatory period of 45 days for filing written version.
27. In the result, this Revision Petition is dismissed. There is no order as to costs.
Sd/- Sd/-
I/C PRESIDENT MEMBER-JUDICIAL
Date: 19.06.2023
*AD