WP(C) Nos.28138/2023 and 29387/2023: Saint-Gobain India Pvt. Ltd. v. Deepak Achuthan, M.V. Sukeshan, The District Consumer Disputes Redressal Commission Kannur; Tata Motors Passenger Vehicles Ltd. v. Sujith D, M.K. Motors (Malankara Buildings, Kodimata, Kottayam) and Milan Plaza, Pathanamthitta District Commission, and Kerala State Consumer Disputes Redressal Commission

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 ``` ``` WP(C) NO. 28138 OF 2023 ``` ## `PETITIONER:` ``` M/S SAINT-GOBAIN INDIA PVT. LTD., SIGAPI ACHI BUILDING, FLOOR NO,7, 18/3, RUKMINI LAKSHMIPATHY ROAD, EGMORE, CHENNAI – 600 008, WRONGLY SHOWN AS SY.NO.171/2, MARUTI INDUSTRIAL ESTATE, HOODI RAJAPALAYA, WHITE FIELD MAIN ROAD, HOODI, BENGALURU, KARNATAKA - 560048. REPRESENTED BY ITS AUTHORISED SIGNATORY. ``` ## `BY ADV V.KRISHNA MENON` ## `RESPONDENTS:` ``` 1DEEPAK ACHUTHAN, S/O.ACHUTHAN, GRAND AUTO GARAGE, NEXT TO CLASSIC THEATRE, BEHIND SBI, THALIPARAMBA, PIN – 670141. 2M.V.SUKESHAN, GREENLINE INTERIORS AND CONSTRUCTIONS, 1ST FLOOR, SOUTH PLAZA COMPLEX, SOUTH BAZAR, KANNUR, PIN – 670002. 3THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAKKAD ROAD, KANNUR, PIN – 670002. BY ADVS. K.P.SREEKUMAR P.M.SATHEESH(K/1066/2001) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2024, ALONG WITH WP(C).29387/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) Nos.28138/2023, 29387/2023 ``` ``` -2- ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, ``` ``` 1945 ``` ## `WP(C) NO. 29387 OF 2023` ## `PETITIONER:` ``` TATA MOTORS PASSENGER VEHICLES LTD., (FORMERLY A UNIT OF TATA MOTORS LTD.), BOMBAY HOUSE, 24, HOMI MODY STREET, HUTATMA CHOWK, FORT MUMBAI – 400001, REPRESENTED BY ITS CEO. ``` ``` BY ADVS. V.KRISHNA MENON J.SURYA ``` ## `RESPONDENTS:` ``` 1SUJITH.D, AGED 48, S/O DAMODARA KURUP, INDEEVARAM, AICKAD, KUDOMON P.O., PATHANAMTHITTA, PIN – 691555. 2M.K. MOTORS, MALANKARA BUILDINGS, KODIMATA, KOTTAYAM – 686039, REPRESENTED BY ITS PROPRIETOR. ``` ``` 3M.K. MOTORS, MILAN PLAZA, CHURULIKODE, PATHANAMTHITTA – 689668, REP. BY ITS PROP. 4THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CDRF LANE, NANNUVAKKADU, PATHANAMTHITTAA, PIN – 689645. ``` ``` WP(C) Nos.28138/2023, 29387/2023 ``` ``` -3- ``` - `5 THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SISU VIHAR LANE, VAZHUTHACAUD, SATHAMANGALAM PO, THIRUVANANTHAPURAM, PIN – 695010.` ``` BY ADV. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2024, ALONG WITH WP(C).28138/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) Nos.28138/2023, 29387/2023 ``` ``` -4- ``` ``` ‘C.R.’ ``` ## `JUDGMENT` ``` [WP(C) Nos.28138/2023, 29387/2023] ``` ``` I am considering these two writ petitions together because, though not involving the same parties, they impel identical issues for forensic consideration. ``` ``` 2.The short question involved in these cases is whether the District Consumer ``` ``` Disputes Redressal Commissions (‘District Commissions’ for short) can set opposite ``` ``` parties ‘ex parte’ and then proceed to dispose of the complaint in their absence, refusing them permission even to participate in the proceedings. ``` ``` 3.The controversy in these cases has ``` ``` its genesis in the fact that the opposite ``` ``` parties, namely the petitioners herein, did ``` ## `WP(C) Nos.28138/2023, 29387/2023` ``` -5- ``` ``` not file their counter pleadings within the ``` ``` statutorily stipulated time, thus forfeiting their right to do so; but the ‘District Commissions’ then went on to pass impugned orders, setting them ex parte, so as to mean that they will not be permitted to ``` ``` participate in the proceedings thereafter, ``` ``` including to cross-examine the witnesses. ``` ``` 4.The petitioners assert that the ``` ``` impugned proceedings are illegal and unlawful ``` ``` because, it is beyond the statutory Scheme, ``` ``` for the ‘District Commissions’ to keep ``` ``` parties away from the proceedings, solely for ``` ``` the reason that they did not file their ``` ``` counter pleadings within the statutorily fixed time. ``` ``` 5.Sri.V.Krishna Menon – learned counsel for the petitioners in both these cases, ``` ## `WP(C) Nos.28138/2023, 29387/2023` ``` -6- ``` ``` relied upon various judgments of this Court, as that of the Hon’ble Supreme Court; and in particular, the order dated 04.09.2023 in Civil Appeal Diary No.31182/2023 between ARN ``` ``` Infrastructure India Limited v. Hara Prasad ``` ``` Ghosh, to argue that, even though the ``` ``` ‘District Commissions’ may be authorized, under the statutory matrix, not to permit an opposite party to file their counter ``` ``` pleadings if it had not been done within the statutory time frame fixed, it does not vest them with any competence to set them ‘ex ``` ``` parte’, so as to then deny them opportunity ``` ``` to participate in further proceedings, ``` ``` including for cross-examination of witnesses. ``` ``` He thus reiterated that the orders impugned in these Writ Petitions, to the extent to which the Commissions have set the ``` ## `WP(C) Nos.28138/2023, 29387/2023` ``` -7- ``` ``` petitioners ‘ex parte’, be declared to be illegal and unlawful, especially when they obtain no such power under any of the ``` ``` applicable Statutes and Regulations. ``` ``` 6.Sri.P.M.Satheesh – learned counsel appearing for the respondents inW.P(C)No. ``` ``` 28138/2023, however, opposed the afore ``` ``` contentions of the petitioners, saying that, when they have not filed their counter pleadings, it can only be presumed that they have nothing to offer in opposition to the claim and hence that their further ``` ``` participation in the proceedings, including to cross-examine the witnesses, becomes ``` ``` untenable and redundant. ``` ``` 7.Sri.P.M.Satheesh then added that the ``` ``` petitioners could not have approached this Court through these Writ Petitions because, ``` ## `WP(C) Nos.28138/2023, 29387/2023` ``` -8- ``` ``` their proper remedy is to move the State ``` ``` Consumer Disputes Redressal Commission ``` ``` (‘State Commission’, for short) by way of a ``` ``` statutory appeal against the impugned orders. ``` ``` He thus prayed that these Writ Petitions be dismissed. ``` ``` 8.I have considered the afore rival ``` ``` submissions on the touchstone of the various materials produced on record. ``` ``` 9.Upfront, it is indubitable that this Court will have to first answer the ``` ``` submissions of Sri.P.M.Satheesh that, these ``` ``` Writ Petitions are not maintainable because the proper remedy of the petitioner, at least ``` ``` inW.P(C)No.28138/2023, is to approach the ‘State Commission’ through a statutory ``` ``` appeal. ``` ``` 10.That said, it is pertinent that, in ``` ## `WP(C) Nos.28138/2023, 29387/2023` ``` -9- ``` ``` thecaseofthepetitionerin ``` ``` W.P(C)No.29387/2023, they did invoke their alternative statutory remedy by filing a Revision, numbered R.P.No.43/2023, which ``` ``` ended in Ext.P6 produced therewith, whereby, the ‘State Commission’ heldthat the ‘District Commission’ was justified declining to permit the petitioner therein to take part in the proceedings by filing their version. The opinion of the ‘State Commission’ is, therefore, that, if a party does not file a counter version within the statutory time, then their right to take part in the proceedings, by subsequently filing it, will stand forfeited. ``` ``` 11.In an abstract sense, I cannot find fault with the afore findings of the ‘State Commission’ because, as rightly held by them, ``` ## `WP(C) Nos.28138/2023, 29387/2023` ``` -10- ``` ``` the opposite party, who failed to file their versions within time, cannot be allowed to do so beyond it and to then participate in the proceedings. However, the question whether they can be allowed to participate even without such a version, has not been dealt with by the ‘State Commission’ in their order,producedasExt.P6in W.P(C)No.29387/2023. ``` ``` 12.With respect to the afore, the judgment of this Court inKumar v. Bincy [2009 (1) KLT 544] assumes some significance ``` ``` because, the declarations therein are that, ``` ``` when a final order is decided ‘ex parte’, the ``` ``` proper remedy is only to file an appeal before the ‘State Commission’; for which, an ``` ``` application under Order IX Rule 13 of the ``` ``` Code of Civil Procedure is not maintainable. ``` ## `WP(C) Nos.28138/2023, 29387/2023` ``` -11- ``` ``` This was a case where a final order was ``` ``` issued by the ‘District Commission’ ‘ex parte’ and it was held that the proper remedy to challenge the same was before the ‘State ``` ``` Commission’. ``` ``` 13.However, inARN Infrastructure ``` ``` (supra), the question, whether an opposite ``` ``` party, who fails or refuses to file their version within the time limits fixed by law, ``` ``` is entitled to participate in the proceedings thereafter, including to cross-examine the ``` ``` witnesses, was answered affirmatively, and an ``` ``` opportunity was given to the petitioners ``` ``` therein to do so, by fixing a date for such purpose. ``` ``` 14.When the path is so illuminated by ``` ``` theHon’bleSupremeCourtinARN Infrastructure (supra), it becomes luculent ``` ## `WP(C) Nos.28138/2023, 29387/2023` ``` -12- ``` ``` that, even though an opposite party may not be entitled to file a version - if they have not done so within the fixed time frame as per the Statute – they still obtain the right to participate in the Trial and to address final argument before the ‘District Commission’; and, in fact, the Hon’ble Supreme Court found it objectionable that the request for time for such purpose in that particular case, was denied solely on the ground that a version had not been filed. The Hon’ble Court has rendered it reiteratingly clear that the opposite party was entitled to address arguments on merits and that they were entitled to do so even in the absence of filing its written version against the complaint. 15.That said, the District Commissions ``` ## `WP(C) Nos.28138/2023, 29387/2023` ``` -13- ``` ``` surely obtain the competence to settle disputes ‘ex parte’, but this encompasses a scenario markedly different from the manner in which it has been done by the respective Commissions in these cases. The statutory provision which vests such power on the Commission is Section 38(3)(b) of the Consumer Protection Act, 2019 (‘Act’, for short), and not Section 38(2)(b) thereof. This distinction is essential to be borne in mind because, the subject matter of both the consumer complaints referred to in the afore Writ Petitions falls within the purview of the afore Section. ``` ``` 16.The grounds impelled in theseWrit ``` ``` Petitions surely call for an interpretation of Section 38(3)(b) of the ‘Act’ of 2019, which reads ut infra: ``` ``` WP(C) Nos.28138/2023, 29387/2023 ``` ``` -14- ``` ``` “(3) The District Commission shall, if the complaint admitted by it under sub-section (2) of section 36 relates to goods in respect of which the procedure specified in sub-section (2) 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 Commission; ``` ``` (b) if 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 Commission, it shall proceed to settle the consumer dispute— ``` ``` (i) on the basis of evidence brought to its notice by the complainant and the opposite party, if the opposite party denies or disputes the allegationscontainedinthe complaint, or ``` ``` (ii) ex parte on the basis of evidence brought to its notice by the ``` ``` WP(C) Nos.28138/2023, 29387/2023 ``` ``` -15- ``` ``` complainant, where the opposite party omits or fails to take any action to represent his case within the time given by the Commission; ``` ``` (c) decide the complaint on merits if the complainant fails to appear on the date of hearing.” ``` ``` Apodictically,Section38(3)(b)(ii) ``` ``` stipulates that the opposite party can be set ``` ``` ‘ex parte’, where he “omits or fails to take ``` ``` any action to represent his case”. The term ``` ``` "representation" encompasses various acts, ``` ``` such as submitting version, filing interim applications,physicallyrepresenting ``` ``` themselves,orthroughtheirlegal representative in court, or any similar ``` ``` actions. Therefore, a close assessment of ``` ``` the provision would make it irrefutable that a party can only be declared ‘ex parte’ if he/she/they entirely fail to make any form of ``` ## `WP(C) Nos.28138/2023, 29387/2023` ``` -16- ``` ``` representation before the court. This implies ``` ``` that, even if a party fails to file their version, as long as they continue to represent their case in any manner, they cannot be subjected to an ‘ex parte’ order under the statute. ``` ``` 16.In the afore forensic perspective, it ``` ``` is luculent that, though I cannot find fault with the ‘State Commission’ in having issued Ext.P6 inW.P(C)No.29387/2023 - it relating solely to the question whether the opposite party could take part in the proceedings ``` ``` after filing their version- the larger ``` ``` question, whether they are entitled to do so, ``` ``` even without such an opportunity being granted, certainly, has been considered by the Hon’ble Supreme Court and answered in theirfavouraffirmativelyinARN ``` ## `WP(C) Nos.28138/2023, 29387/2023` ``` -17- ``` ``` Infrastructure (supra). ``` ``` 17.When the declarations of law remain ``` ``` in such manner, the factum of the petitioner inW.P(C)No.28138/2023, in not having ``` ``` approached the ‘State Commission’, but in having filed this Writ Petition before this ``` ``` Court cannot be found against them, ``` ``` particularly when this matter has been pending for nearly six months now, on the ``` ``` strength of an interim order. ``` ``` Resultantly, being guided byARN ``` ``` Infrastructure (supra), I allow these Writ ``` ``` Petitions and set aside the impugned orders; ``` ``` however, to the limited extent that it ``` ``` declines permission to the petitioners – the ``` ``` opposite parties before the ‘District Commissions’ – to take part in the ``` ``` proceedings, including by advancing arguments ``` ``` WP(C) Nos.28138/2023, 29387/2023 ``` ``` -18- ``` ``` at the final stage andcross-examining the ``` ``` witnesses, even though they have not filed ``` ``` their counter versions within time. ``` ``` Needless to say, the observations above ``` ``` cannot be construed to mean that the ``` ``` petitioners/opposite parties can file any new ``` ``` version on its strength, but only that they ``` ``` will be at liberty to participate in the final disposal of the matter by advancing arguments and cross-examining the witnesses at such stage, as has been permitted by the Hon’ble Supreme Court inARN Infrastructure (supra). ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` akv ``` ``` WP(C) Nos.28138/2023, 29387/2023 ``` ``` -19- ``` ## `APPENDIX OF WP(C) 29387/2023` ## `PETITIONER EXHIBITS` ``` EXHIBIT -P1 ``` ``` A TRUE COPY OF THE COMPLAINT PETITION CC. NO. 196 OF 2022 FILED BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PATHANAMTHITTA (THE DISTRICT COMMISSION FOR SHORT) ``` ``` EXHIBIT -P2A COPY OF THE ORDER DATED 28.2.2023 IN CC NO. 196 OF 2022 FILED BY CONSUMER DISPUTES REDRESSAL FORUM , PATHANAMTHITTA ``` ``` EXHIBIT -P3A TRUE COPY OF THE PETITION IA. NO OF 2023 IN CC.NO. 196 OF 2022 FILED BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION PATHANAMTHITTA ``` ``` EXHIBIT -P4A TRUE COPY OF THE VERSION SOUGHT TO BE FILED BY THE PETITIONER IN CC.NO. 196 OF 2022 DATED 28.03.2023 FILED BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION PATHANAMTHITTA ``` ``` EXHIBIT -P5A COPY OF THE REVISION PETITION, .NO.43/2023 DATED 8.5.2023 FILED BEFORE THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM ``` ``` EXHIBIT-P 6A COPY OF THE ORDER DATED 30.6.2023 IN R.P.NO.43/2023 BY THE THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM. ``` ``` WP(C) Nos.28138/2023, 29387/2023 ``` ``` -20- ``` ## `APPENDIX OF WP(C) 28138/2023` ## `PETITIONER EXHIBITS` ``` EXHIBIT P1A COPY OF THE COMPLAINT PETITION CC/194/2022 ``` ``` EXHIBIT P2THE COPY OF THE PROCEEDINGS OF THE DCDRC DATED 10.10.2022 AS OBTAINED FROM THE WEBSITE OF THE DISTRICT COMMISSION ``` ``` EXHIBIT P3A COPY OF THE APPLICATION, I.A.NO.130 OF 2023 FILED BY THE PETITIONER ``` ``` EXHIBIT P4A COPY OF THE VERSION SOUGHT TO BE FILED BY THE PETITIONER EXHIBIT P5A COPY OF THE ORDER OF THE DCDRC DATED 18.5.2023 AND RECEIVED ON 5.8.2023 ```