B.Srinivasa Rao vs Managing Director TAFE ACCESS Limited

THIS revision petition challenges the order dated 27.06.2011 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ?the State Commission?) in MA no. 46 of 2011 in FA no. 3426 of 2010. By this order, the State Commission dismissed the miscellaneous application filed by the petitioner herein by observing as under: "6. Admittedly the appeal no. 3426 of 2010 was again posted for hearing on admission on 17.02.2011. Appellant did not make any representation. Though sufficient and reasonable opportunity was given to the appellant and advocate earlier, they did not represent their case. On 17.02.2011 also they failed to appear. Hence, appeal came to be dismissed for non-prosecution. 7. Then Miscellaneous Petition no. 21 of 2011 was filed on 25.02.2011. Thereafter also, there is no proper representation. The earlier advocate on record Sri. Nagaraj N. Naidu did not represent. Then it appears on the basis of ?No Objection?, present advocate took the vakalath on 20.05.2011. At that time, it was informed him that the case is posed on 25.05.2011. He was present in the Commission on that day, but the Miscellaneous Petition no. 21 of 2011 was not called out. On enquiry he came to know that Miscellaneous Petition was dismissed on 24.05.2011 itself. What is the basis for this petitioner and the Advocate on record to say that Sri Nagaraj N. Naidu, Advocate informed him the date of hearing on 25.05.2011 is not known. The affidavit of the said Advocate is not filed. Under the circumstances, we don?t find any genuineness in the contention of the petitioner at this stage. 8. When the appeal was dismissed for the first time, the appellant would have been more cautious, but he was not regular. His absence does not appears to be bonafide and reasonable. The petitioner has not made out substantial grounds and reasons that his absence was reasonable. THIS present Miscellaneous Petition is a second Miscellaneous Petition wherein it is prayed to restore the appeal dismissed on 29.07.2010. It is Miscellaneous Petition to the Miscellaneous Petition. Under the circumstances, we don?t find any genuine grounds to allow this Miscellaneous Petition. Accordingly, we answer point no.1 in negative and process to pass the following: Miscellaneous petition is dismissed."

Aggrieved applicant/complainant has filed this revision petition.

THE applicant was the complainant before the IV Additional District Consumer Disputes Redressal Forum, Bangalore (in short, ?the District Forum?) and alleged that the air conditioner fitted with the Skoda Laura Car that he bought from the respondent/opposite party ? OP 1 on 05.01.2007 did not work properly ever since the date of purchase. THE problem in the defective AC could not be fully resolved even after 2 years since the purchase of the car. Alleging defective product and deficiency in service, the complainant prayed for replacement of his car or, in the alternative, compensation of Rs.19 lakh and costs. On consideration of the pleadings, evidence and documents brought on record by the parties, the District Forum held that the air conditioner fitted in the complainant?s car did not have any manufacturing defect nor was the complainant entitled to replacement of the car merely because the air conditioner was alleged to be defective. Accordingly, the District Forum dismissed the complaint.

Aggrieved by the order of the District Forum, the complainant approached the State Commission. The State Commission dismissed the appeal on 29.07.2010 for non-prosecution. It appears that the same appeal was again posted for admission hearing on 17.02.2011. On that date too, there was no representation on behalf of the appellant/complainant and the appeal was once again dismissed for non-prosecution. Though a miscellaneous petition for restoration was filed on 25.02.2011, there was once again no proper representation on behalf of the appellant/complainant. The Advocate engaged earlier reportedly informed the second Advocate on behalf of complainant/appellant that the miscellaneous petition had been posted for hearing on 25.05.2011. On enquiry on that date, the Advocate came to know that the miscellaneous petition had been dismissed on the previous date, i.e., 24.05.2011. The State Commission did not find any substance in these submissions and proceeded to dismiss the miscellaneous petition by order dated 27.06.2011.

I have heard Mr. Kashi Vishweshar on behalf of the petitioner. On enquiry, Mr. Vishweshar fairly conceded that the petitioner did not initiate any action against his previous Advocate by filing a complaint with the Bar Council concerned for non-representation in the appeal proceedings before the State Commission. Thus, lack of diligence on the part of appellant/complainant in the matter before the State Commission is writ large. Moreover, it is only under sections 22 (2) and 22A of the Consumer Protection Act, 1986 (in short, ?the Act?) that the National Commission has the power to review an order made by it or reconsider and recall an ex parte order. There is no comparable provision under section 17 of the Act defining the jurisdiction of the State Commission. In other words, the action of the complainant/appellant/petitioner in seeking restoration of his appeal by filing a miscellaneous application before the State Commission which, on an earlier date, had already dismissed the appeal for non-prosecution, was also misconceived. Finally, even on merits, there is no substance in the revision petition. The District Forum has recorded in detail as to how the OPs did everything possible to resolve the problems of air conditioning in the car. In addition, the District Forum has rightly observed that even if it was accepted that the AC of the car suffered from manufacturing defect, that by itself could not constitute a valid ground for seeking replacement of the entire car or compensation of as high an amount as Rs.19 lakh. The order of the District Forum dismissing the complaint with cost of 1000/- is, therefore, fully justified. Hence, no injustice has been caused to the petitioner by the State Commission in dismissing the appeal for non-prosecution. It is, in fact, a misadventure on the part of the complainant/appellant/petitioner to have filed this revision petition which is in the nature of a vexatious petition and seeks to abuse the remedies granted to bona fide consumers under the provisions of the Act.

IN conclusion, the revision petition is dismissed subject to the petitioner depositing a cost of Rs.5,000/- with the Consumer Legal Aid Account of this Commission within four weeks. If he fails to comply, the Registrar of this Commission shall take appropriate action for enforcement of the order under provisions of sections 25 and 27 of the Act.