IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 37468 of 2004(I)
1. MR. REJU THOMAS, VADACKEPARAMBIL,
... Petitioner
Vs
1. THE NATIONAL INSURANCE CO.LIMITED
... Respondent
2. M/S. MEDICARE SERVICES CLUB,
3. STANDARD CHARTERD GRINDLYAS BANK LTD.,
4. THE CONSUMER DISPUTES REDRESSAL
For Petitioner :SRI.A.KUMAR
For Respondent :SRI.RAJAN P.KALLIYATH
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :04/08/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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W.P.(C) NO. 37468 OF 2004
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Dated this the 4th day of August, 2008
JUDGMENT
Whether a Consumer Redressal Forum has power to
restore a complaint which was dismissed for default, and if not,
whether a petition under Article 226 or 227 of Constitution of
India would lie, challenging the order dismissing an application
filed for restoration of the complaint.
2. Petitioner filed a complaint before District Consumer
Redressal Forum, Ernakulam, numbered as O.P.487 of 2003. It
was dismissed for default on 18.5.2004. Petitioner filed I.A. 414
of 2004 (Ext.P2) to restore the complaint. In Ext.P2 petition,
petitioner contended that he was ready to proceed with the
complaint and had filed an affidavit in lieu of chief examination
and on 18.5.2004 he was ready to give evidence and was
instructed by his counsel to answer the roll call and inform the
Forum that he is ready to give evidence but unfortunately due to
his inexperience, he missed the roll call and only after arrival of
the counsel at 12 a.m. when enquiries were made, it was
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realised that the complaint was dismissed for default. It was
contended that this fact was brought to the notice of District
Forum on the afternoon session and dismissal of the complaint
was not due to his negligence or willful laches and therefore it is
to be restored. Under Ext.P3 order, the petition was dismissed
for the reason that case of the petitioner that he was present in
Court on 18.5.2004 and that fact was brought to the notice of
the Forum cannot be accepted as the order sheet does not
reflect the same and as no sufficient reason was shown to
restore the complaint, complaint cannot be restored. This
petition is filed under Article 226 and 227 of Constitution of
India to quash Ext.P3 order contending that as the dismissal was
not due to the negligence or willful laches on the part of the
petitioner, District Consumer Redressal Forum should have
restored the complaint and considered the complaint on merit,
after affording opportunity to the petitioner and therefore the
order is to be quashed and compliant is to be restored.
3. Learned counsel appearing for petitioner and first
respondent Insurance Company were heard.
4. Learned counsel appearing for petitioner argued that
though there is no specific provision for restoration of a
WP(C)37468/04 3
complaint dismissed for default, District Consumer Redressal
Forum has inherent jurisdiction to restore a complaint dismissed
for default. Reliance was placed on the decision of the Apex
Court in New India Assurance Company Limited v. R.
Srinivasan (AIR 2003 SCC 242). It was pointed out that in
view of the conflicting decisions a subsequent Bench of the Apex
Court, in Rajeev Hitendra Pathan & others v. Achyut
Kashinath Karekar & another (2007 (7) SCC 667), referred
the question to a larger Bench. The learned counsel argued that
in view of the subsequent decision of the Supreme Court and the
reference made to larger Bench, it is to be found that District
Consumer Redressal Forum has jurisdiction to restore a
complaint to file which was earlier dismissed for default.
Learned counsel also argued that even if it is found that the
petitioner could have challenged the order by filing an appeal or
revision, as the writ petition was admitted and is pending before
this Court from 2004 onwards, it may not be thrown out
compelling petitioner to approach another Forum at this belated
stage. Reliance was placed on the decision of the Apex Court in
Hirday Narain v. Income Tax Officer, Bareilly (AIR 1971
SC 33) and Thressiamma v. Union of India (1999 (2) KLT
WP(C)37468/04 4
683).
5. Learned counsel appearing for first respondent
argued that when under amended Section 22A of Consumer
Protection Act, the National Commission was given power to set
aside an exparte order, such power was not given either to the
State Commission or to the District Consumer Redressal Forum
and therefore District Redressal Forum has no jurisdiction to set
aside its own order, even if it is an order dismissing the
complaint for default. Learned counsel pointed out that Section
15 of the Consumer Protection Act provides for an appeal
against an order passed by the District Forum and under Section
13(2)(b) of the Act, the District Forum has jurisdiction to dismiss
a complaint on the failure of the complainant to appear and pass
an order exparte on the basis of the evidence brought in by the
complainant, eventhough the opposite party omits or fails to
take action to represent the case before the District Forum and
therefore an order passed exparte dismissing the compliant is an
appealable order as provided under Section 15. It was also
pointed out that as provided under Section 17(1)(b) of the Act,
State Commission has jurisdiction to call for records and pass
appropriate orders in any consumer dispute, which is pending or
WP(C)37468/04 5
has been decided by a District Forum within the State, if it
appears to the State Commission that District Forum has
exercised jurisdiction not vested in it by law or has failed to
exercise jurisdiction so vested or has acted in exercise of
jurisdiction illegally or with material irregularity and if so
petitioner is entitled to file a revision, challenging the order
dismissing the application filed by him, before the State
Commission and therefore Article 226 or 227 of Constitution of
India cannot be invoked and the writ petition is not
maintainable.
6. Section 13 of the Consumer Protection Act
(hereinafter referred to as the Act) provides the procedure to be
complied by the District Forum on admitting a complaint. Sub
clause (i) and (ii) of clause (b) of subsection 2 of Section 13 of
the Act empowers the District Forum either to dismiss a
complaint for default or to pass an exparte order against
respondents based on the evidence of the complainant. The Act
does not contain a provision empowering the District Forum
either to restore a complaint which is dismissed for default or to
set aside the exparte order passed under Section 13 (2) (b) of
the Act. This omission cannot be ignored. Section 22A of the
WP(C)37468/04 6
Act was inserted by The Consumer Protection Amendment Act
(Act 62 of 2002) empowering the National Commission to set
aside an exparte order. Section 22A provides that where an
order is passed by the National Commission exparte against the
opposite party or a complainant, the aggrieved party may apply
to the National Commission to set aside the said order in the
interest of justice. Even when such a power was granted to the
National Commission by the Amendment Act, such a power was
not given either to the District Forum or the State Forum. It is
also important to take note of the fact that Amendment Act 62 of
2002 was introduced subsequent to the decision of the Apex
Court in Jyotsana Aravindkumar Shah v. Bombay Hospital
Trust (1999(4) SCC 325) and also the decision in New India
Assurance Company Limited v. Srinivasan’s case (supra).
7. In Jyotsana Aravindakumar Shah’s case (supra) the
power of the State Commission to set aside an exparte order was
considered by the Apex Court. It was held that so long as there
is no provision in the Act enabling the State Commission to set
aside an exparte order, it cannot set aside an exparte order.
Their Lordships held:
“The State Commission, however, fell into
WP(C)37468/04 7
an error in not bearing in mind that the
Act under which it is functioning has not
provided it with any jurisdiction to set
aside the ex parte reasoned order. It is
also seen from the order of the State
Commission that it was influenced by the
concluding portion of the judgment of the
Bombay High Court to the effect that the
respondent (writ petitioner) could
approach the appellate authority or make
an appropriate application before the
State Commission for setting aside the ex
parte order, if permissible under the law.
Here again, the State Commission failed
to appreciate that the observation of the
High Court would help the respondent, if
permissible under the law. If the law does
not permit the respondent to move the
application for setting aside the ex parte
order, which appears to be the position,
the order of the State Commission setting
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aside the ex parte order cannot be
sustained. As stated earlier, there is no
dispute that there is no provision in the
Act enabling the State Commission to set
aside an ex parte order.”
8. The argument of the learned counsel appearing for
petitioner is that in view of the subsequent decision it is to be
found that though the Act does not provide the power, Court has
the inherent power to set aside an exparte order.
9. The question considered by the Apex Court in New
India Assurance Company Limited Vs. Sreenivasan (supra) as is
clear from paragraph 5 of the judgment was whether in view of
dismissal of the first complaint filed by the respondent therein, a
second complaint on the same facts and cause of action would
lie and whether it ought to have been dismissed as not
maintainable. Their Lordships considered the power of
Consumer Redressal Forum under Section 13 and held that
powers which are available to a civil Court under Code of Civil
Procedure are made available to District Forum in respect of
matters enumerated in sub section 4 of Section 13 and
provisions of Order IX are not made applicable. Their Lordships
WP(C)37468/04 9
then held:
” 10). We have already indicated above that
the Code of Civil Procedure has been
applied to the proceedings under the
Consumer Protection Act only to a limited
extent. If the intention of the legislature
was to apply the provisions of Order 9 also
to the proceedings under the Consumer
Protection Act, it would have clearly
provided in the Act that the provisions of
Order 9 will also be applicable to the
proceedings before the District Forum or
the State Commission or, for that matter,
before the National Commission. If the
legislature itself did not apply the rule of
prohibition contained in Order 9 Rule 9(1),
it will be difficult for the courts to extend
that provision to the proceedings under the
Act.”
After laying down that it would be permissible to file a second
complaint, explaining why the earlier complaint could not be
WP(C)37468/04 10
pursued and was dismissed for default, it was held:
“18). We only intend to invoke the spirit of
the principle behind the above dictum in
support of our view that every court or
judicial body or authority, which has a duty
to decide a lis between two parties,
inherently possesses the power to dismiss
a case in default. Where a case is called
up for hearing and the party is not present,
the court or the judicial or quasi-judicial
body is under no obligation to keep the
matter pending before it or to pursue the
matter on behalf of the complainant who
had instituted the proceedings. That is not
the function of the court or, for that matter
of a judicial or quasi-judicial body. In the
absence of the complainant, therefore, the
court will be well within its jurisdiction to
dismiss the complaint for non-prosecution.
So also, it would have the inherent power
and jurisdiction to restore the complaint on
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good cause being shown for the non-
appearance of the complainant.”
It is relying on this paragraph learned counsel appearing for
petitioner argued that the Consumer Redressal Forum has the
power to restore complaint which was dismissed for non
appearance of the complainant. The learned counsel pointed out
that taking note of the earlier decision in Jyotsana Aravindkumar
Shah’s case where a contrary view was taken, a subsequent
Bench of the Apex Court in Rajeev Hitendra Pathan v. Achyut
Kashinath Karekar (2007 (7) SCC 667) has referred the
question to a larger Bench and therefore it is to be found that
Consumer Redressal Forum has the power to restore a
complaint which was dismissed for default. In Rajeev Hitendra
Pathan’s case (supra) taking note of paragraph 18 of the
judgment in New India Assurance case (supra) it was held:
“In the latter case i.e. New India Assurance
case reference was not made to the earlier
decision in Jyotsana case. Further the effect of
the amendment to the Act in 2003 whereby
Section 22A was introduced has the effect of
conferment of power of restoration on the
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National Commission, but not to the State
Commission. In view of the divergence of
views expressed by coordinate Benches, we
refer the matter to a larger Bench to consider
the question whether the State Commission
has the power to recall the ex parte order.
Records be placed before the Hon’ble Chief
Justice of India for appropriate orders.”
Hence it cannot be said that Apex Court has held that District
Forum has jurisdiction to restore a complaint dismissed for
default. The learned counsel appearing for the petitioner relied
on the decision of a learned Single Judge of this Court and
submitted that it was held that District Forum has the power to
set aside the exparte order. In St. Joseph’s Hospital v. Jimmy
(2001 (2) KLT 514) the learned Single Judge also held that
power to set aside the exparte order under Order IX was not
given to the District Forum. True, relying on New India
Assurance case it was observed that District Forum has inherent
power to restore the complaint dismissed for default. But that
was not the question decided in the said case. The National
Consumer Disputes Redressal Commission in Harish Chandra
WP(C)37468/04 13
v. The New India Assurance Co. Ltd. (2008 (2) CPR 249
(NC) also held that Section 17 of the Consumer Protection Act
does not empower a State Commission to review or recall its
own final order or a complaint.
10. As stated earlier, when provisions of Order IX of Code
of Civil Procedure was not made applicable to the Consumer
Redressal Forum under Section 13 and only other provisions are
made applicable, Consumer Redressal Forum has no power to
restore a complaint dismissed for default to file. It is more so
when sub rule 2 (b) of Section 13 enables the District Forum to
dismiss a complaint on failure of the complainant to appear
before it. If that be so, it can only be found that petition filed
before District Redressal Forum is not maintainable. If so
remedy of the petitioner is to file an appeal challenging the
order dismissing the complaint for default as provided under
Section 15 of the Act.
11. Though learned counsel for the petitioner relying on
the decision of Apex Court in Kishore Kumar Khaitan And
Another v. Praveenkumar Singh ((2006) 3 SCC 312) argued
that District Consumer Redressal Forum did not properly
consider the application to restore the complaint and hence the
WP(C)37468/04 14
supervisory jurisdiction of this Court is to be invoked. Facts of
that case are different. In that case trial Court found that there
was no urgency to grant an exparte order of injunction and
appellate Court in the appeal did not consider the question in
the proper manner. It is under such circumstances their
Lordships in paragraph 13 held as follows:-
“The jurisdiction under Article 227 of the
Constitution may be restrictive in the sense
that it is to be invoked only to correct errors
of jurisdiction. But when a court asks itself a
wrong question or approaches the question in
an improper manner, even if it comes to a
finding of fact, the said finding of fact cannot
be said to be one rendered with jurisdiction
and it will still be amenable to correction at
the hands of the High Court under Article
227 of the Constitution. The failure to render
the necessary findings to support its order
would also be a jurisdictional error liable to
correction.”
12. Though learned counsel for petitioner also relied on
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the decisions of Apex Court in Hirday Narain v. I.T. Officer,
Bareilly (AIR 1971 SC 33) in that case it was found that an
order under Section 35 of Income Tax is not appealable and a
revision before the Commissioner of Income Tax is maintainable
and on the date when the petition was filed before the High
Court the period for moving a revision before the commissioner
had not expired. In such circumstances it was held:
“12). We are unable to hold that because a
revision application could have been moved
for an order correcting the order of the
Income-tax Officer under Section 35, but
was not moved, the High Court would be
justified in dismissing as not maintainable
the petition, which was entertained and was
heard on merits.”
13. Though reliance was placed on the Division Bench
decision of this Court in Thressiamma v. Union of India
(1999 (2) KLT 683) what was held therein was only that
existence of an alternate remedy is not a bar to the
maintainability of a writ petition, if there is violation of the
fundamental rights or violation of any Act or Rules or violation of
WP(C)37468/04 16
the principles of natural justice. The Division Bench following
the dictum laid down by the Apex Court in M/s.Baburam
Prakash Chandra Maheswari v. Antarim Zila Parishad(AIR
1969 SC 556) held that if there is violation of the principles of
natural justice or violation of any rule or Act, dismissal of writ
petition on the ground of alternate remedy is not proper. When
under Section 13(2) (c) the District Forum is competent to
dismiss a complaint on the failure of complainant to appear, it
cannot be said that the dismissal of the complaint was in
violation of any rule or Act. When the Act does not empower the
District Forum, to restore a complaint to file dismissal of the
petition for restoration, whatever be the ground for dismissal, is
also not an act in violation of the Act or the Rules. Sub section 3
of Section 13 specifically provides that “no proceedings
complying with the procedure laid down in sub section 1 and 2
shall be called in question in any Court on the ground that the
principles of natural justice have not been complied with”.
Therefore the order cannot be challenged on the ground of
violation of principles of natural justice also. Hence fact that
writ petition was earlier admitted is also not a ground to quash
the order of the District Forum which is legal and regular. In
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such circumstances, the writ petition is not maintainable.
Petitioner is permitted to challenge the order of the Redressal
Forum by filing an appeal as provided under Section 15 or a
revision as provided under Section 17 of the Act. If the appeal
or revision is filed within two weeks from today, the authority
shall receive the same and dispose it in accordance with law.
Writ petition is dismissed.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-