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Citation Codes
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citation codes
Case Number
Attorney(S)
Acts
  • Consumer Protection Act, 1986 - Ss.12, 13, 17, 17-A, 17-B, 18, 22, 22-A and 30-A - Consumer Protection Regulations, 2005 - Regn.26 - Civil Procedure Code, 1908, Or.9 R.13".
  • u/s 13 of Consumer Protection Act.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
Acts
  • Consumer Protection Act, 1986 - Ss.12, 13, 17, 17-A, 17-B, 18, 22, 22-A and 30-A - Consumer Protection Regulations, 2005 - Regn.26 - Civil Procedure Code, 1908, Or.9 R.13".
  • u/s 13 of Consumer Protection Act.
Smart Summary

Factual and Procedural Background

The petitioner/1st opposite party filed an application seeking to condone the delay in filing a petition to set aside an ex-parte order passed by the Tamil Nadu State Consumer Disputes Redressal Commission, Madurai. The delay was attributed to the previous counsel relinquishing the case without informing the petitioner, resulting in difficulty in appointing new counsel and obtaining case documents, which caused the delay in filing the written statement. The underlying consumer complaint was filed by the 1st respondent/complainant against the opposite parties regarding a declined insurance claim linked to a loan of Rs. 40,00,000/- secured by an equitable mortgage and collateral cheques. The complainant alleged illegal denial of the claim on false grounds and sought recovery of the loan amount, cancellation of the mortgage, return of collateral cheques, and compensation for mental agony and deficiency of service. The opposite parties failed to file their written version timely, resulting in the ex-parte order. The petitioner then sought to set aside this ex-parte order by condoning the delay.

Legal Issues Presented

  1. Whether the Commission has the power to set aside its own ex-parte order.

Arguments of the Parties

Petitioner/1st Opposite Party's Arguments

  • The previous counsel abandoned the case without informing the petitioner, causing inability to follow up the case.
  • Appointment of new counsel and obtaining case documents caused unavoidable delay.
  • The delay in filing the petition to set aside the ex-parte order was neither willful nor intentional but due to bona fide reasons.
  • If the delay is not condoned and the ex-parte decree not set aside, the petitioner would suffer great prejudice.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
(2011) 9 Supreme Court Cases 541 - Rajeev Hitendra Pathak and Others vs. Achyut Kasinath Karekar and another Consumer Forums and State Commissions do not have power to set aside or recall their own ex-parte orders; only the National Commission has such power under the Consumer Protection Act, 1986. The court relied on this precedent to hold that the State Commission lacks jurisdiction to set aside its own ex-parte orders.
Civil Appeal No.10941-10942/2013 dated 04.03.2020 - New India Assurance Company Limited vs. Hilli Multipurpose Cold Storage Private Limited District Forums have no power to extend the time for filing response beyond statutory limits; Consumer Fora and State Commissions cannot set aside ex-parte orders or extend statutory time limits. The court applied this ruling to confirm that the Commission cannot condone delay to set aside ex-parte orders or extend time limits.

Court's Reasoning and Analysis

The court examined the statutory framework under the Consumer Protection Act, 1986, and relevant Supreme Court rulings. It noted that Consumer Forums and State Commissions are statutory tribunals whose powers are limited to those expressly conferred by statute. The Supreme Court in Rajeev Hitendra Pathak clarified that only the National Commission has the authority to set aside or recall its own ex-parte orders, and neither District Forums nor State Commissions possess such power. Further, in the New India Assurance case, the Supreme Court held that District Forums cannot extend statutory time limits for filing responses, reinforcing the limitation on Consumer Fora powers. Applying these principles, the court concluded that the Tamil Nadu State Consumer Disputes Redressal Commission does not have jurisdiction to condone delay or set aside its ex-parte order, regardless of the reasons for delay presented by the petitioner.

Holding and Implications

The petition to condone delay and to set aside the ex-parte order is dismissed as not maintainable before this Commission.

The direct effect of this decision is that the petitioner’s application is rejected, and the ex-parte order remains effective. No costs were imposed. The decision reaffirms the settled legal position that State Commissions lack the power to set aside their own ex-parte orders, thereby providing clarity on the limits of their jurisdiction. No new precedent was established beyond the application of existing Supreme Court rulings.

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    TATA AIA Life, Registered & Corporate office,Mumbai. v. Tharini.A, Kanyakumari District. & Another.

    1

    IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES

    REDRESSAL COMMISSION, MADURAI.

    Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER M.P.Sr.No.379/2019

    in

    C.C.No.22/2016

    THURSDAY, THE 09th DAY OF SEPTEMBER 2021.

    TATA AIA Life, Registered & Corporate office, 14thFloor, Tower A.Peninsula, Business Park, Senapati Bapat Marg, Lower Parel, Mumbai 400 013. Petitioner/1stOpposite Party -Vs-

    1. A.Tharini, No.50D3, Jeeva Nagar, Nagercoil - 629 002, Kanyakumari District. 1stRespondent/Complainant

    2. M/s Cholamandalam Investment and Finance Company Limited,

    Registered Office at No.2 "Dare House", NSC Bose Road, Chennai - 600 001. 2ndRespondent/2ndOpposite Party Counsel for Petitioner/ Opposite Party-1 : Mr.B. Vijayakarthikeyan,Advocate. Counsel for Respondent-1/Complainant : Mr.M.Azeem, Advocate. Counsel for Respondent-2 /Opposite Party-2 : Mr.K.Venkateswaran, Advocate. This petition coming before me for final hearing on 31.08.2021 and upon perusing the material records, this Commission made the following:-

    ORDER

    THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.

    2

    1. This petition has been filed by the petitioner/1stopposite party application to condone the delay in filing petition to set aside ex-parte order.

    2. In the petition affidavit, the petitioner/1st opposite party has averred as follows;- The previous counsel engaged by the petitioner/1stopposite aprty has relinquished himself from the service without giving proper information to the petitioner/1stopposite party. Unfortunately there was no other panel advocate present at that time. Hence petitioner/1stopposite party was not able to follow up the case Appointment of new advocate through empanelment and producing the case documents from previous engaged counsel has caused the unwanted delay. Due to the above said reasons the petitioner/1stopposite party was not able to file written statement in time the delay is neither willful nor wanton, but only due to the above said bona-fide reasons. Unless the delay in filing set aside petition and exparte decree against the petitioner/1stopposite party are condone and set aside, the petitioner/1st opposite party would be subject to great prejudice. Therefore to condone the delay in filing the set aside petition by petitioner/1stopposite party.

    3. The application was called before this Commission for deciding maintainability of the application.

    4. The respondent/complainant filed consumer complaint under insurance claim taken by his deceased husband borrowed a sum of Rs.40,00,000/- from the 2nd opposite party on 13.03.2013. The property belongs to the complainant has been mortgaged for the loan. The 2ndopposite party received three undated cheques from the complainant's husband as security, the borrower died on 29.10.2014 due to sudden

    3

    cardiac arrest. The claim was illegally declined to honor on false grounds that the psychiatric bodily disability of deceased was not disclosed in the application. The complainant filed the complaint after issuance of pre suit notice to the opposite parties claiming a sum of Rs.40,00,000/- in loan account of the complainant with the 2nd opposite party as per the insurance policy and to return the original title deed of the property after cancelling the equitable mortgage and directing the 2ndopposite party to return the three cheques issued as collateral security and directing the opposite party to pay Rs.10,00,000/- as compensation for mental agony and multiplication of litigation taken against the complainant and Rs.5,00,000/- for deficiency of service.

    5. The complaint was taken on file on 10.11.2016 the opposite parties 1 & 2 were not appeared after receiving the notice advocate Mr.S.Venkateswaran filed vakklath for 2ndopposite party. The consumer complaint was adjourned to 18.01.2017, as per the docket order the written version of opposite parties -1& 2 not filed. Proof affidavit of complainant by 21.02.2017. Proof affidavit of complainant was filed on 09.06.2017 and adjourned for filing written arguments on the side of complainant. On 10.09.2018 both the opposite parties were set ex-parte for the reason for their written version not filed within time. On 28.08.2019 advocate Mr.B.Vijayakarthikeyan filed change of vakkalath for 1stopposite party and come forward with an application to condone the delay in filing petition to set aside ex-parte order.

    4. Point for consideration is:-

    Whether the Commission has empowered to set aside its own order or not?

    5. Point :- The question of power to set aside the ex-parte order passed by the Consumer Fora and State Commission was decided in a case reported in (2011) 9

    4

    Supreme Court Cases 541 - Rajeev Hitendra Pathak and Others -Vs- Achyut Kasinath Karekar and another - it was held by the Honourable Supreme Court in the above case

    "Consumer Protection - Consumer Forums - Jurisdiction and Powers of Consumer Forum - District Forums and State Commissions, held, do not have power to set aside or recall their own ex-parte orders - Only National Commission has such power - Tribunals are creatures of the statute and derive their power from express provisions of statute - District Forums and State Commissions have not been given any power to set aside ex-parte order or power of review - Powers which have not been expressly given by statute cannot be exercised - After amendment of S.22 and insertion of S.22-A of

    1986 Act power of recall is vested only with National Commission - Ratio laid down in Jyotsana case, (1999) 4 SCC 325 is the correct position of law - Consumer Protection Act, 1986 - Ss.12, 13, 17, 17-A, 17-B, 18, 22, 22-A and 30-A - Consumer Protection Regulations, 2005 - Regn.26 - Civil Procedure Code, 1908, Or.9 R.13".

    6. Now the question on set aside the ex-parte order by the Consumer Forum is well settled by the Honourable Supreme Court of India - in Civil Appeal No.10941 - 10942/ 2013 dated 04.03.2020 in the case of New India Assurance Company Limited -Vs- Hilli Multipurpose Cold Storage Private Limited - In the above case the Apex Court categorically held that the District Forum has no power to extend the time for filing response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged u/s 13 of Consumer Protection Act. Therefore, in the both decisions Honourble Apex Court categorically held that the Consumer Fora and State Commission have not empowered to extend the statutory time limit for filing written version by the

    5

    opposite party and also have not empowered to set aside their ex-parte order passed by the Consumer Forum and State Commission. In the above citations the Honourable Supreme Court categorically held that the State Commission has not empowered to set aside its own order and answered accordingly for the point for consideration.

    7. In the result, this petition is dismissed as not maintainable before this Commission. No cost.

    Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 09thday of September 2021.

    Sd/-xxxxxxxxxx

    N. RAJASEKAR,

    PRESIDING JUDICIAL MEMBER.

    '

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    TATA AIA Life, Registered & Corporate office,Mumbai. v. Tharini.A, Kanyakumari District. & Another.
    (Sep 9, 2021)