M/s. Sita Decors vs The State Consumer Disputes Redressal Commissioner and Leo Laboratory Services

Srinivasan, J.—The petitioner is challenging the order of the State Consumer Disputes Redressed Commission, Madras. The order is one

passed on appeal and a petition for stay was presented along with the appeal. The petitioner was the respondent in O.P.No. 279 of 1991

preferred by Leo Laboratory Services which is the second respondent herein before the District Consumer Disputes Redressed Forum. There was

a complaint under S. 12 of the Consumer Protection Act, Inspire of notice being served, the petitioner remained absent and the District Forum

passed an order directing return of Rs. 4,000/- collected by way of charges by the petitioner and a sum of Rs. 100/- by way of damages for the

negligence and indifferent attitude of the petitioner. The petitioner filed an application to set aside the export order. That application was returned to

the petitioner with an endorsement that his remedy was to file an appeal before the State Forum as final orders have been passed in the main O.P.

Accordingly, the petitioner filed an appeal with an application for stay which was taken on file as A.P.No. 198 of 1991 and C.M.P.No. 108 of

1991.

The appeal as well as the petition for stay were heard by the State Forum and dismissed in limine. The State Forum did not find any reason to

interfere with the order of the District Forum. The said order is challenged in this civil revision under Article 227 of the Constitution of India.

Learned counsel for the petitioner contends that the procedure adopted by the state Forum in dismissing the appeal in limine without ordering

notice to the second respondent is violative of the provisions of the Act and Rules framed there under. According to him right of appeal is provided

in the Act and whenever an appeal is presented it should be automatically taken on file and notice should be issued to the respondent and it is only

after hearing both parties in the appeal, the State Forum could dispose of the appeal. Learned counsel for the petitioner places reliance on the

provisions of S.18 of the Consumer Protection Act, 1986 which is in the following terms.

The procedure specified in Ss. 12, 13 and Hand under the rules made there under for the disposal of complaint by the District Forum shall, with

such modifications as man the necessary, be applicable to the disposal of disputes by the State Commission.

Learned counsel for the petitioner contends that no modifications have been made in the Act or in the Rules and the procedure as prescribed in Ss.

12 to 14 of the Act for the disposal of disputes before the District Forum would apply to the appeals before the State Forum. S. 12 refers to the

manner in which a complaint was made before the District Forum. S. 13 prescribes the procedure on receipt of the said complaint. Under that

section, whenever a complaint is received, the District Forum shall 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 30 days or such extended period not exceeding 15 days as may be granted by the

District Forum after conduct of the enquiry. Learned counsel for the petitioner draws my attention to Rule 9 of the Tamil Nadu Consumer

Protection Rules, 1987. That Rule, prescribes the procedure for hearing appeals. Sub Rule 6 states that on the date of hearing or any other date to

which hearing may be adjourned, it shall be obligatory for the parties or their authorized agents to appear before the Stale Commission and if the

appellant or his authorized agent fails to appear on the said date the state Commission may, in its discretion, either dismiss the appeal or decide it

on the merits of the case. Similarly, the State Commission is empowered to proceed export and decide export on merits if the respondent or his

authorized agent fails to appear on the said date.

Learned counsel for petitioner submits that on a reading of Ss. 12 to 14 of the Act along with Rule 9(6) of the Rules, it is clear that in all appeals

filed before the State Forum a notice shall be issued by the Appellate forum to the respondent and only, thereafter, the appeals could be disposed.

I do not agree with the contention of the learned counsel for petitioner. S. 18 of the Act itself states that Ss. 12 to 14 would be applicable only

with such modifications as may be necessary for the purpose of disposal of the appeal. In the case of original petition before the District Forum it is

absolutely necessary to issue a notice to the respondent as the District Forum will not be in a position to decide the case of the petitioner without

hearing the respondents. It cannot even without giving notice to the respondent pass an order allowing the application filed by the complainant.

Consequently, a notice is a must in an original petition. However, the position in the case of appeal is entirely different. The appellant has to make

out a case that the order of the District Forum suffers from errors or defects. If the State Forum is not convinced that there was any error or defect

in the order of the District Forum there is no necessity at all to issue notice to the respondent and drag him before the Court. It cannot be said that

even after giving notice to the respondent he shall be heard by the appellate forum. After giving notice to the respondent and after hearing the

appellant, if the appellate forum thinks that no case has been made out by the appellant, it is certainly entitled to dismiss the appeal without calling

on the respondent to argue the same.

Thus, the appellate forum is vested with the discretion to decide whether notice should be issued to the respondent on the facts and

circumstances of the case. There is no Rule compelling the State Forum to issue notice to the respondent in every appeal whether there is merit in

the appeal or not. S. 18 of the Act cannot be understood or interpreted in the manner in which the learned counsel for petitioner wants me to

interpret the same. Rule 9 (6) of the Rules enables learned counsel for petitioner to contend that in all the appeals, the respondent shall be heard or

that notice shall be issued to the respondent. Sub-Rule (6) of Rule 9 provides that if in an appeal a date of hearing is fixed and in such cases if the

notice had been issued to the respondent and service had been effected then the parties or their agents shall be present. Sub-Rule (6) does not

compel the State Forum to issue notice in every appeal. This is the only contention urged by learned counsel for the petitioner. I do not accept the

same. No other argument advanced. Hence, the revision petition fails and is dismissed.