HUMERA vs ADHIYAKSHA, BHARTIYA JEEVAN BIMA NIGAM

THE complainant Case No. 46/93 for deficiency in service in not making the payment of the amount under the Life Insurance Policy of the life assured was dismissed on 5.7.1996 by the District Consumer Disputes Redressal Forum, Datia (for short the ''District Forum'') for non-appearance of the complainant and her Counsel.

AN application under Order 9, Rule 9, Code of Civil Procedure filed for restoration of the complaint showing sufficient cause for non-appearance registered as Case No. 6/1997 was also dismissed holding that there is no power of restoration or to recall the order. Section 13 of the Consumer Protection Act, 1986 (for short the ''Act'') lays down the procedure on receipt of complaint and Section 14 speaks of the finding of the District Forum. Sections 13 and 14 of the Act are reproduced thus : "13. Procedure on receipt of complaint- (1) The District Forum shall, on receipt of a complaint, if it relates to any goods- (a) refer a copy of the complaint to the opposite party mentioned in the complaint directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum; (b) where the opposite party on receipt of a complaint referred to him under Clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute in the manner specified in Clauses (c) to (g); (c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory alongwith a direction that such laboratory makes an analysis or test whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum; (d) before any sample of the goods is referred to any appropriate laboratory under Clause (c), the District Forum may require the complainant to deposit to the credit of the Forum such fees as may be specified, for payment to the appropriate laboratory for carrying out the necessary analysis or test in relation to the goods in question; (e) the District Forum shall remit the amount deposited to its credit under Clause (d) to the appropriate laboratory to enable it to carry out the analysis or test mentioned in Clause (c) and on receipt of the report from the appropriate laboratory, the District Forum shall forward a copy of the report alongwith such remarks as the District Forum may feel appropriate to the opposite party; (f) if any of the parties disputes the correctness of the findings of the appropriate laboratory, or disputes the correctness of the methods of analysis or test adopted by the appropriate laboratory, the District Forum shall require the opposite party or the complainant to submit in writing his objections in regard to the report made by the appropriate laboratory; (g) the District Forum shall thereafter give a reasonable opportunity to the complainant as well as the opposite party of being heard as to the correctness or otherwise of the report made by the appropriate laboratory and also as to the objection made in relation thereto under Clause (f) and issue an appropriate order under Section 14.

(2) The District Forum shall, if the complaint received by it under Section 12 relates to goods in respect of which the procedure specified in Sub-section (1) cannot be followed, or if the complaint relates to any services- (a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum; (b) where the opposite party, on receipt of a copy of the complaint, referred to him under Clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute- (i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or (ii) on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum.

(3) No proceedings complying with the procedure laid down in Sub-sections (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.

(4) For purposes of this section, the District Forum shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely : (i) the summoning and enforcing attendance of any defendant or witness and examining the witness on oath; (ii) the discovery and production of any documents or other material object producible as evidence; (iii) the reception of evidence on affidavits; (iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source; (v) issuing of any commission for the examination of any witness; and (vi) any other matter which may be prescribed.

(5) Every proceeding before the District Forum shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and the District Forum shall be deemed to be a Civil Court for the purposes of Section 195, and Chapter XXVI of the Code of Criminal procedure, 1973 (2 of 1974).

(6) Where the complainant is a consumer referred to in Sub-clause (iv) of Clause (b) of Sub-section (1) of Section 2, the provisions of Rule 8 of Order 1 of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Forum thereon.

Finding of the District Forum-(1) If, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to (do) one or more of the following things, namely : (a) to remove the defect pointed out by the appropriate laboratory from the goods in question; (b) to replace the goods with new goods of similar description which shall be free from any defects; (c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant; (d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the customer due to the negligence of the opposite party; (e) to remove the defects of deficiencies in the services in question; (f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them; (g) not to offer the hazardous goods for sale; (h) to withdraw the hazardous goods from being offered for sale; (i) to provide for adequate costs to parties. (2) Every proceeding referred to in Sub-section (1) shall be conducted by the President of the District Forum and at least one Member thereof sitting together : Provided that where the Member, for any reason, is unable to conduct the proceeding till it is completed, the President and the other Member shall conduct proceeding de novo. (2-A) Every order made by the District Forum under Sub-section (1) shall be signed by its President and the Member or Members who conducted the proceedings : Provided that where the proceeding is conducted by the President and one Member and they differ on any point/points, they shall state the point or points on which they differ and refer the same to the other Members for hearing on such point or points and the opinion of the majority shall be the order of the District Forum. (3) Subject to the foregoing provisions, the procedure relating to the conduct of the Members of the District Forum, its sittings and other matters shall be such as may be prescribed by the State Government."

From a bare reading of Sections 13 and 14 it is evident that no power is given to the District Forum to dismiss the complaint for non-appearance, that means if any party fails to appear, the District Forum after considering the material on record has to make an order either dismissal of the complaint on merits or if it is satisfied on the material on record that the goods complained against suffered from any of the defects specified in the complaint or that any of the allegations made in the complaint about the services are proved, to make an order to the opposite party directing him to do one or more of the things enumerated in Clauses (a) to (i) of Section 14 of the Act.

SUB-rule 8 of Rule 4 of Madhya Pradesh Consumer Protection Rules, 1987 (for short ''Rules'') lays down that if during the proceedings conducted under Section 13 of the Act, the District Forum fixes a date for hearing of the parties, it shall be obligatory on the complainant and opposite party to appear before the Forum on such date of hearing or any other date to which hearing could be adjourned, where the complainant fails to appear before the District Forum, on such day, the District Forum may in its discretion either dismiss the complaint for default or decide it on merit. Where the opposite party fails to appear on the day of hearing, the District Forum may decide the complaint ex parte. Thus, SUB-rule 8 of Rule 4 gives a discretion to the District Forum either to dismiss the complaint on default or to decide it on merits in the absence of the complainant or to proceed ex parte if the opposite party fails to appear. However the complaint is dismissed for default or complaint is decided ex parte no power is conferred to the District Forum for restoration of the complaint or for setting aside ex parte order. The Supreme Court in case of Jyotsana Arvind Kumar Shah & Ors. v. Bombay Hospital Trust, III (1999) CPJ 1 (SC), has ruled that no jurisdiction is vested with the State Commission under the Act to set aside the ex parte order as the law does not permit a respondent to move an application for setting aside order.

THE National Commission in a recent decision in case of M/s. Scooter India Ltd. v. Pradeep Kumar, III (1999) CPJ 77 (NC), relying on the decision of the Supreme Court in Jyotsana Arvind Kumar Shah & Ors. (supra), has ruled that Consumer Fora has not been conferred with any power of review or to recall an ex parte order. In view of the settled position of law, learned Counsel for the appellant is right in submitting that when the Act does not confer any power for restoration of the complaint dismissed in default, necessarily, the complaint has to be decided on merits on the material on record even if the complainant defaults in appearance on the day of hearing of the complaint. In view of the above, the appeal is allowed, the orders of the District Forum are set aside and the case is remitted to the District Forum for deciding the complaint on its own merits within 90 days from the date of appearance of the parties which is fixed as 28.4.2000 of which no notice shall be issued to the parties as they have been noticed here through their Counsel. No costs in this appeal. A copy of this order be conveyed to the parties and a copy be sent to the District Forum alongwith record of the case. Appeal allowed.