DATE OF DECISION : 20.09.2014 15.05.2019 15.05.2019 N.K. Sharma, President Ms. Sonica Mehrotra, Member Order passed by Ms. Sonica Mehrotra, Member CC No. 400/14 Page 2 of 11 ORDER
1. The complainant had earlier filed the present complaint for the first time in July 2013 registered vide complaint no. 223 of 2013 against OPs wherein he had alleged manufacturing defect in Model Fiat Punto Fire Emotion Car Bearing Registration no. UP-14-BY-4111 purchased from OPs on 26.03.2013 for a sum of Rs. 4,00,000/- on grounds that when the said car was taken for repairs / service of the defective brake system to Kashyap Vehicle Work Pvt. Ltd. (Authorized dealer of Fiat Automobiles) on 01.06.2013, he was informed that the manufacture year of the car was November 2010 and the warranty expired in November 2012. The complainant immediately rushed to the showroom of OP1 on hearing this but he was threatened and abused by the officials of OP1. The complainant issued the legal notice to the OPs dated 07.06.2013 but the same went unheeded to. Therefore feeling aggrieved at the inducement of the OPs of having sold a 2010 manufactured car to the complainant which was defective causing him wrongful loss and mental harassment, the complainant was constrained to file the earlier complaint alleging deficiency of service against the OPs and prayed for issuance of directions against the OPs to refund the cost of the car i.e. Rs. 4,00,000/- alongwith interest thereon @ 24 % CC No. 400/14 Page 3 of 11 from the date of purchase of car alongwith compensation of Rs. 10,00,000/- for mental agony and harassment and Rs. 50,000/- towards cost of litigation.
2. The complainant attached copy of RC issued by Transport Department of UP showing manufacturing date of vehicle as 07/2012, copy of retail invoice dated 26.03.2013 for purchase of the car alongwith insurance policy cover and copy of tax invoice and job sheet issued by Kashyap Vehicle Works Pvt Ltd. dated 01.06.2013 mentioning the vehicle info warranty start: 30.11.2010, warranty end: 29.11.2012 and legal notice.
3. Notice was issued to the OP on 22.07.2013 which entered appearance and filed written statement on 06.09.2013 taking preliminary objection of no assurance having being given by OP2 & OP3 to complainant to sell a new car of 2012 manufacturing year and submitted that it was made clear to the complainant at the time of purchase of the said vehicle that the same is 2010 manufactured and is being used by OP as a demo car. The said fact was well within the knowledge of the complainant and that is why a major discount was given on the said car to him which was sold at Rs. 4,00,000/- The OP further submitted that the RC issued by RTO UP mentioning the manufacturing year 07/2012 was a CC No. 400/14 Page 4 of 11 typographically error which was made known to the complainant by the OPs. OP further denied any defect in the car or in its brake system as alleged by the complainant. Lastly, OPs denied having threatened or abused the complainant or induced him into buying an old 2010 manufacture car and prayed for dismissal of complaint.
4. Thereafter, the matter was listed for rejoinder and evidence by way of affidavit on behalf of the complainant on 04.11.2013 and 20.11.2013 and both dates the complainant was not present either in person or through pleader. Therefore this Forum in the post lunch session at 2:15 on 20.11.2013 was pleased to dismiss the complaint in default and consign the file to record room.
5. The complainant filed fresh complaint on the same subject matter in September 2014 which was registered as CC No. 400/14, the present complaint for adjudication raising the same grievance and praying for same relief as in the erstwhile aforementioned complaint which was dismissed and default vide order dated 20.11.2013 and the same was noted in the order sheet dated 13.10.2014. Thereafter, pleadings were filed by both sides and the complaint was argued at length. Having heard both sides and perused the records and written submissions, however, without CC No. 400/14 Page 5 of 11 going into the merit of the case, we find that two key issues arise in the present complaint for adjudication:-
(i) Whether the District Forum while exercising its power vested under Consumer Protection Act is conferred with the power to dismiss a complaint in default, without disposing it on merits when complainant fails to appear for the hearing(s)
(ii) If so, whether such power of dismissal of complaint includes the power to recall such an order by way of readmitting the same complaint on same cause of action / ground and similar relief. As regards both the first issue, the present complaint which has already been dismissed by this Consumer Forum vide order dated 20.11.2013 and was re-filed and re-admitted in September 2014. Section 12(3) of Consumer Protection Act 1986 (CPA) empowers the District Forum to decide the issue of admissibility of complaint. The CPA has not conferred upon Consumer Fora any power either specifically or by necessary implication to review their orders which power has been solely vested with Hon'ble National Commission U/s 22(2) of CPA following the amending act passed in 2002 w.e.f. 15.03.2003. The same was held by Hon'ble National Commission in CC No. 400/14 Page 6 of 11 New India Assurance Company Ltd. Vs Shri Harvansh Kumar Arora 2001 (3) CPJ 38. Section 13 of CPA lays down the procedure for District Forum on admitting a complaint. Section 13(2)(b)(ii) empowers the District Forum to either dismiss a complaint for default or pass an ex-parte order against OP. The Act does not contain a provision empowering the District Forum either to restore a complaint which is dismissed in default or admit the same afresh or set aside ex-parte order passed by it under the aforementioned section. Section 22(A) empowers only National Commission with power of review and provision of Order IX of CPC was not made applicable to Consumer Redressal Forum U/s 13 and therefore no power to restore a complaint dismissed in default more so when 13(2)(b) enables District Forum to dismiss a complaint in default. The remedy is to file an appeal before State Commission U/s 15 of the Act challenging the order dismissing the complaint for default.
6. The Hon'ble Supreme Court in Jyotsana Arvind Kumar Shah Vs. Bombay Hospital Trust 1999 (4) SCC 325 held that the Act does not empower the State Commission or District Forum to set aside an ex-parte order passed by it and only an appeal lies against the said order. But without noticing the same, the Hon'ble Supreme Court CC No. 400/14 Page 7 of 11 in New India Assurance Vs. R. Srinivasan AIR 2000 SC 941 held that the Forum will have inherent power and jurisdiction to restore the complaint dismissed for default or set aside ex-parte order passed by it provided the complaint shows good reason. Noticing the contrary views expressed by its two co-ordinate Benches, the Hon'ble Supreme Court in three Judge Bench landmark judgment passed in Rajeev Hitendra Pathak Vs. Achyut Kashinath Karekar (2011) 9 SCC 541, noticing the effect of amendment in the Act brought about in 2003 introducing Section 22A therein, decided this issue unequivocally, the relevant paragraph of the judgment 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.
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 CC No. 400/14 Page 8 of 11 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 22A 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 Jyotsanas case (1999) 4 SCC 325, 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.
7. This judgment was further echoed by the Hon'ble National Commission in The Dean Chhatrapati Shivaji Maharaj Hospital Vs. Ramesh Gaikwad in RP No. 2924/2012 wherein the Hon'ble National Commission held that the appeal filed before State Commission dismissed in default and there being no provision for CC No. 400/14 Page 9 of 11 review by District Forum or State Commission and authority of Hon'ble Supreme Court in Pathaks case (Supra) come into force August 2011 onwards, it was the duty of Counsel for petitioner to file appeal / revision immediately. The Hon'ble National Commission in Mohd. Shaffan Vs. Kotak Mahindra Bank Ltd. & ANR II (2018) CPJ 31 (NC) held that State Commission had no power / right to review to its own order in light of judgment of Hon'ble Supreme Court in Pathaks case which has settled the issue that State Commisison or District Forum are not vested with power to review their own order. The Hon'ble National Commission in Amar Bhushan Prakash Vs. Bajaj Allianz Life Insurance Co. Ltd. and ORS II (2018) CPJ 338 (NC) held in a case wherein the complaint was dismissed in default by District Forum and restoration application was dismissed by the Forum challenging the said dismissal which decision was upheld by State Commission that in terms of the judgment of Hon'ble Supreme Court in Rajeev Pathak (Supra) case, there was no infirmity with the decision of District Forum and State Commission as they cannot review their own order and remitted the complaint back to District Forum for hearing the consumer complaint on merits. CC No. 400/14 Page 10 of 11
8. In light of the various judgments and exhaustive discussion and settled proposition of law laid down therein, we hold that:
(i) The District Forum is unquestionably empowered to dismiss the complaint for non prosecution / default in appearance of the complainant and counsel U/s 13(2)(c) of CPA.
(ii) Powers which have not been given expressly to the District Forum under the provision of CPA cannot be exercised by the Forum
(iii) Once passed, the District Forum has no power to recall an order of dismissal of complaint for default and to readmit / restore the same on the same cause of action and same relief claim. Therefore both issues have been decided accordingly.
9. In the fact and circumstances, we are therefore unhesitatingly of the considered view that post dismissal of the earlier / original complaint no. 223 of 2013 in default vide order dated 20.11.2013 passed by this Forum, the complainant should have invoked / resorted to appropriate relief i.e. appeal under Section 15 of CPA before Honble State Commission instead of filing the same CC No. 400/14 Page 11 of 11 complaint afresh before this Forum in September 2014. The erstwhile Bench, while admitting the second complaint acted illegally and in transgression of the law laid down by Hon'ble Supreme Court and travelled beyond the powers / exceeded its powers conferred by it under the Consumer Protection Act by re-admitting the dismissed in default complaint. We therefore are not empowered to either entertain or pass any order in the said complaint as the same is beyond the purview of power vested in the District Forum under the Consumer Protection Act and therefore dismiss the same with liberty to the complainant to seek appropriate remedy before appropriate Commission.
10. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11. File be consigned to record room.
12. Announced on 15.05.2019 (N.K. Sharma) President (Sonica Mehrotra) Member
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