V. TRANS INDIA LTD. vs M/S. S.K. INTERNATIONAL & ANR.

This first appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 24.01.2017, passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as ''the State Commission'') in Consumer Complaint No. 108/2015, filed by the present respondent no. 1, vide which, the appellant/Opposite Party (OP) No. 1 V. Trans India Limited, was not allowed to file their written version in proceedings in consumer complaint No. CC/15/108 on the ground that the appellant failed to file the same within 45 days of the admission of the complaint, as laid down in section 13 of the Consumer Protection Act, 1986.

Briefly stated, the facts of the case are that the complainant/respondent No. 1 M/s. S.K. International filed the consumer complaint in question against the appellant/OP-1, alleging that they booked some consignment with them on 07.03.2009 for transportation to Bombay but on receipt of the consignment, the material was found to be in an extensively damaged condition. During hearing before the State Commission, the said complaint was admitted on 13.07.2016 and the matter was adjourned to 09.08.2016 for filing written version of the opposite party. The order dated 13.07.2016 reads as follows:-

" Mr. Ganesh Shirke - Advocate for complainant.

Mr. Umacharan-Advocate for opponent no.1.

Ms .Sneha Dwivedi-Advocate for opponent no.2.

Opponent no.2 has filed affidavit in reply opposing admission.

Various points are raised by the opponents opposing admission of complaint. Point of limitation is also raised. However, complaint is admitted and all the points are kept open at the stage of final hearing. Matter is now adjourned to 09/08/2016 for filing written version by the parties before the Registrar (Legal). "

However, the written version was not filed by the appellant within the time prescribed and ultimately, vide impugned order dated 24.01.2017, the State Commission directed that the complaint shall proceed without the written version of OP-1. It is against this order that the present appeal has been made.

During hearing before me, the learned counsel for the appellant stated that they had taken various preliminary objections in the matter, requesting the State Commission to first decide the issue of limitation etc. before admitting the complaint. However, the State Commission directed that all the preliminary issues shall be kept open till the stage of final hearing and admitted the complaint. The written statement could not be filed, because the authorised representative of the company had to suddenly go out of station. The learned counsel submitted that the appellant should be allowed to file their written version, so that the matter could be adjudicated in a just and equitable manner.

Per contra, the learned counsel for OP-1 submitted his oral arguments as well as placed the written arguments on record. It was stated that there were no valid reasons on the part of the appellant to withhold the written statement, when the State Commission had passed their order on 13.07.2016, admitting the complaint in the presence of the Advocates for all the parties. There was a delay of more than 5 months in filing the written statement, and the same could not be taken on record. In support of his arguments, the learned counsel has drawn attention to the orders passed by the Hon''ble Supreme Court in "New India Assurance Co. Ltd. Vs. Hilli Multi Purpose Cold Storage Pvt. Ltd." [Civil Appeal No.10941-10942 decided on 4.12.15] , saying that the written statement could be filed only within a period of 45 days, as prescribed under the Consumer Protection Act, 1986. Further, the Hon''ble Supreme Court in their order passed on 10.02.2017 in " Reliance General Insurance Co. Ltd. & Anr. vs. M/s Mampee Timbers & Hardwares Pvt. ltd. & Anr. [Civil Appeal D. No. 2365 of 2017 decided 10.02.2017]" had decided that the consumer fora could accept the written statement, filed beyond the stipulated period of 45 days in an appropriate case on suitable terms including the payment of cost etc. However, the said order was not applicable under the facts and circumstances of the present case, because the impugned order is dated 24.01.2017, whereas the order of the Hon''ble Apex Court came later on, i.e., 10.02.2017. In the present case, considering the huge delay of 5 months and 15 days in filing the written statement, the same could not be condoned, keeping in view the order of the Hon''ble Supreme Court of India in "Anshul Aggarwal vs. New Okhla Industrial Development Authority", [IV (2011) CPJ 63 (SC)] , and " Office of the Chief Post Master General and Ors. Vs. Living Media India Ltd. & Anr." [1986 - 2013 Consumer 17021 (NS SC)] .

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

The appellant have taken the line of argument that they had raised preliminary objections like the limitation issue etc., regarding the maintainability of the consumer complaint before the State Commission. The said Commission should have decided these issues before admitting the complaint and asking them to file their written version. However, the contention of the appellant does not carry much weight keeping in view the order passed by the Hon''ble Supreme Court in "New India Assurance Co. Ltd. Vs. Hilli Multi Purpose Cold Storage Pvt. Ltd." (supra). After the admission of the complaint in the presence of the appellant on 13.07.2016, it was incumbent upon them to have filed the written statement within the period prescribed under section 13 of the Consumer Protection Act, 1986. In the order passed by the Hon''ble Supreme Court on 10.02.2017 in " Reliance General Insurance Co. Ltd. & Anr. vs. M/s Mampee Timbers & Hardwares Pvt. ltd. & Anr. " (supra) , it has been observed as follows:-

" We consider it appropriate to direct that pending decision of the larger bench, it will be open to the concerned Fora to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms , including the payment of costs, and to proceed with the matter. "

It is evident from the above order that pending decision of the larger Bench, it is open to the consumer fora to accept the written statement filed beyond the stipulated period on suitable terms, including the payment of cost etc. The argument taken by the learned counsel for the respondent that the impugned order was passed on 24.01.2017, i.e., prior to the passing of order dated 10.02.2017, does not carry weight in view of the fact that the matter is still to be decided by a larger Bench of the Hon''ble Supreme Court.

Looking at the facts and circumstances of the present case, it is felt that for proper adjudication of the issues involved, it shall be important to have the written version of the appellant on record, although they were not able to file the same within the time prescribed as stated above. It is, therefore, felt that in the interest of justice, the appellant should be allowed to bring their written statement on record subject to the condition that a cost of 50,000/- is paid by them to the complainant/respondent No. 1, within a period of three weeks from the date of passing of this order. The appellant is given a time of further two weeks from the date of payment of the amount as stated above, to the complainant to file the written statement before the State Commission which shall take it on record and proceed further in the consumer complaint in question. The present appeal is, therefore, allowed in the terms stated above and the order dated 24.01.2017 passed by the State Commission is set aside.