For the Petitioners/Appellants : Mr. Rajat Khattry, Advocate Mr. Siddarth Iyer and Mr. Debopriya Pal, Advocates (in RP/533-535/2019) NEMO in RP/686/2014 Mr. Narayan Prasad Kesharwani, Petitioner in Person (in RP/1352/2015) Mr. Nitin K. Gupta, Advocate Mr. Munish Garg, Advocate (in RP/2367-2368/2017) Mr. Abhimanyu Sharma, Advocate Mr. Amit Gupta, Advocate (in RP/3644-3645/2017) Mr. Ankit Khera, Advocate (in RP/3446/2017) Mr. S. B. Prabhavalkar, Advocate (in FA/478/2019) For the Respondents : Mr. Anand Shankar Jha, Advocate Mr. Arpit Gupta, Advocate (in RP/533-535/2019) Ms. Rashmi Singh, Advocate (in RP/1352/2015) Mr. Nitin K. Gupta, Advocate Mr. Munish Garg, Advocate (in RP/3644-3645/2017) Mr. Abhimanyu Sharma, Advocate Mr. Amit Gupta, Advocate (in RP/2367-2368/2017) Mr. Sandeep Kapoor, Advocate (in RP/3446/2017) Mr. Pulkit Tare, Advocate Mr. Anup Jain, Advocate (in RP/686/2014) Ms. Malvika Kalra, Advocate Mr. Darpan Narayan Patnayak, Advocate (in FA/478/2019) (On caveat) R. K. AGRAWAL, J., PRESIDENT
1. Vide Order dated 21-05-2019 passed in Revision Petitions Nos.533 to 535 of 2019, the question as to whether in Appeal Cases or the Revision Cases, the State Commission and/or the National Commission can exercise the powers of Order 41 Rule 27 of the Code of Civil Procedure, 1908 or the principles laid therein are applicable and permit the parties to adduce/bring on record the additional documents or not, was referred by a two Members Bench of this Commission to a larger Bench, for its decision. Subsequently, vide Order dated 21-05-2019, 21-05-2019, 29-05-2019, 25-06-2019 and 27-06-2019, of the said two Members Bench Revision Petition No.3446 of 2017, Revision Petitions Nos.2367, 2368, 3644 and 3645 of 2017, Revision Petition No.1352 of 2015, Revision Petition No.686 of 2014 and First Appeal No.478 of 2019 respectively, in which the same issue arose, were also referred to the larger Bench.
2. The above said matters were clubbed together and listed on 22-07-2019 before the larger Bench of three Members. On 22-07-2019, Mr. S. B. Prabhavalkar, Learned Counsel appearing for the Appellants in First Appeal No.478 of 2019, in order to emphasise that additional documents can be taken on record while exercising jurisdiction under Section 21(b) of the Consumer Protection Act, 1986, took support of an earlier Order of the National Commission, passed by a four Members Bench, in the case of Khivraj Motors Vs. V. Chandrababu & Anr., II(2002) CPJ in which it was held as under: 94 (NC) Whatever may be the merits of the case, we do not think State Commission was right in holding that additional evidence cannot be led in the State Commission in Appeal. It is not desirable to take a technical view in order to deprive a party of his right. Procedure merely gives guidance as to how justice is to be rendered but the procedure which comes in the way of rendering justice is to be given a go-by. Salutary guidance which the Consumer Protection Act provides is that principles of natural justice should be complied. A consumer forum is required to follow the rules of natural justice though it is not bound by the strict rules of Code of Civil Procedure. If interest of justice requires that a party be permitted to file some additional evidence of which it was deprived of earlier and there is sufficient cause in favour of the party for not having brought the evidence earlier. Consumer Forum should not stand on any formality and disallow the prayer. Of course, each case will depend on the facts of the case. We, however, wish to say that there is absolutely no bar in the provisions of the Act that any additional evidence cannot be brought on record before the State Commission while hearing appeal.
3. In view of the above submission made by Mr. S. B. Prabhavalkar, the three Members Bench referred these matters, in the interest of justice, to a Five Members Bench. Thereafter, the matters were heard by this Bench.
4. In connected Revision Petitions No.533 to 535 of 2019, having identical facts, the vehicle of the Respondent/Complainant, in each case, which was insured with the Petitioners/Opposite Parties had met with an accident but despite efforts, the claim was denied by the Petitioners. On individual Complaints being filed before it in each case, the District Forum vide its Order dated 23-08-2018 allowed the Complaints and directed that reliefs as claimed may be granted in favour of the Respondent. The Appeals preferred by the Petitioners before the State Commission were also dismissed vide Orders dated 07-01-2019 while giving a common observation in all the three Orders, which is reproduced as hereunder: The respondent No.1/complainant had filed all documents regarding accident and his attempts regarding his claim. Astonishingly, the appellants/OP Nos.1 to 3 had not filed the Procedure Manual or Terms and Conditions of the Insurance Policy, to demonstrate the liability of the insured or insured, in case the insured vehicle met with an accident. Whatever documents have been filed by respondent No.1/complainant, the concerned District Forum had allowed the complaint on the basis of entire documents submitted by the respondent No.1/complainant. We have perused para 8 of the impugned order regarding appreciation for the reliefs claimed by the respondent No.1/complainant. The pleadings of the respondent No.1/complainant are duly supported by the documents filed by him. On the contrary, the facts surfaced in the written response of the appellants/O.P.No.1 to 3, are not supported by any document, as the appellants/O.P.No.1 to 3 failed to file any document in their support and defence. Challenging the Orders of the State Commission, the Petitioners/Opposite Parties have filed these Revision Petitions along with Application, I.A.No.6184 of 2019 in Revision Petition No.533 of 2019 to bring on record additional documents which were not part of the record below, viz., true copy of the Miscellaneous Vehicle Package Policy No.2315/54036734/00/00 along with Terms & Conditions of the Policy, true copy of the Claim form with number CL15001342 dated 04-04-2015, true copy of email dated 10-07-2016 sent by the Surveyor to the Respondent No.1/Complainant and true copy of the Survey Report dated 25-08-2016 with all its Annexures. Similarly, I.A.No.6185 of 2019 has been filed in Revision Petition No.534 of 2019 to bring on record additional documents which were not part of the record below, viz., true copy of claim form with number CL14072775 dated 28-02-2015, copies of emails dated 22-12-2015 and 28-01-2016, true copy of email dated 10-07-2016 sent by the Surveyor to Respondent No.1/Complainant and true copy of the Survey Report dated 20-08-2016 with all its Annexures.
I.A.No.6186 of 2019 has also been filed along with Revision Petition No.535 of 2019 to bring on record additional documents which were not part of the record below, viz., true coy of the Claim form with number CL15006381 dated 24-04-2015, copies of emails dated 22-12-2015 and 28-01-2016, true copy of email dated 10-07-2016 sent by the Surveyor to Respondent No.1/Complainant and true copy of the Survey Report dated 18-06-2016 with all its Annexures.
5. We have heard the Learned Counsel for the parties. Even though a large number of decisions have been cited by the Learned Counsel for either of the parties, but we are of the considered opinion that it is not necessary to go into the decisions cited by the Learned Counsel for the parties for the reason that recently the Honble Supreme Court of India in Jiten K. Ajmera has held that under Order 41 & Anr. Vs. Tejas Cooperative Housing Society, (2019) 6 SCC 128, Rule 27 of the Code of Civil Procedure, 1908, a party can produce additional evidence at appellate stage. Relevant paragraphs of the Honble Supreme Courts judgment are reproduced below for ready reference: 3.1 We have perused the application filed by the appellants herein for bringing additional evidence on record, along with documents sought to be produced in the pending appeal before the State Commission. These documents have admittedly come into existence after the appeal was filed before the State Commission. The appellants, therefore, could not have produced the said documents before the District Forum. 3.2 Under Order 41 Rule 27 CPC a party can produce additional evidence at the appellate stage, if it establishes that notwithstanding the exercise of due diligence, such evidence was not within its knowledge, or could not even after the exercise of due diligence, be produced by it at the time when the decree appealed against was passed. 3.3 These documents are of relevance to establish that the appellants are not in a position to obtain the occupancy certificate from MCGM until the unauthorised structures, which are in violation of the approved plans, are removed. In the absence of these documents, the appellants would not be in a position to substantiate their case that they are unable to obtain the occupancy certificate and comply with the directions issued by the District Forum.
4. The State Commission was in error by rejecting the application filed by the appellants under Order 41 Rule 27 CPC by merely stating that the documents are not necessary. The said order is an unreasoned one. The State Commission must have taken a holistic view of the matter.
5. The National Commission has by the impugned order dated 16-03-2018 affirmed the interim order passed by the State Commission. -10-
6. In the light of the aforesaid discussion, the interim order dated 10-12-2015 passed by the State Commission is hereby set aside, as also the impugned order dated 16-03-2018 passed by the National Commission.
7. The Civil Appeal is allowed. The matter is remitted to the State Commission to take the additional documents on record, and decide the appeal on merits in accordance with law. The State Commission is further directed to decide the appeal expeditiously since it is pending since 2013. Ordered accordingly.
6. In view of the law laid down by the Honble Supreme Court in , Jiten K. Ajmera (supra) either of the parties are entitled to produce additional evidence in the Appeal and/or Revision Petition at any stage if it establishes that notwithstanding the exercise of due diligence such evidence was not in its knowledge and could not, even after exercise of due diligence, be produced by it at the time when the Consumer Complaint was decided. We, therefore, answer the reference accordingly. ......................J R.K. AGRAWAL PRESIDENT ......................J