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

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

2. In the petition affidavit, the petitioner/1^st opposite party has averred as follows;- The previous counsel engaged by the petitioner/1^stopposite aprty has relinquished himself from the service without giving proper information to the petitioner/1^stopposite party. Unfortunately there was no other panel advocate present at that time. Hence petitioner/1^stopposite 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/1^stopposite 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/1^stopposite party are condone and set aside, the petitioner/1^st opposite party would be subject to great prejudice. Therefore to condone the delay in filing the set aside petition by petitioner/1^stopposite 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 2^nd opposite party on 13.03.2013. The property belongs to the complainant has been mortgaged for the loan. The 2^ndopposite party received three undated cheques from the complainant's husband as security, the borrower died on 29.10.2014 due to sudden

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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 2^nd 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 2^ndopposite 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 2^ndopposite 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 1^stopposite 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

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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

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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 09^thday of September 2021.

Sd/-xxxxxxxxxx

N. RAJASEKAR,

PRESIDING JUDICIAL MEMBER.

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