Chairman Claims Commitee & 2 Ors vs Binodini Madala

Dr. B.C. Gupta, J.

This first appeal has been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned interim order dated 18.04.2017, passed by the Odisha State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in consumer complaint No. 79/2016, which reads as follows:-

"Order No. 07 Date of Order :- 18.04.2017 Learned counsel for the complainant is present. None appears on behalf of Ops on call.

Though Mr. D.K. Patra, learned counsel submitted that he has instruction to appear on behalf of OPs, no vakalatnama has been filed till date. Notices were issued to the OPs by regd. post with AD on 03.01.2017, in the meantime, more than one month has lapsed, so notice against the OPs are held to be sufficient.  Since none appears on behalf of OPs, they are set exparte.   Heard learned counsel for complainant on the point of admission. The consumer complaint is admitted.   List the matter on 04.09.2017 for ex-parte hearing."

Notice of the appeal was sent to the respondents who appeared through counsel. The arguments of the learned counsel duly authorised by the counsel for appellants as well as those of counsel for respondent were heard.

The learned counsel for the appellants/Opposite Parties (OPs) has referred to their version given in the application for condonation of delay filed alongwith the appeal. It has been stated therein that the appellants/OPs received notice in proceedings in consumer complaint No. 79/2016 on 19.01.2017, whereafter the case was duly assigned to an Advocate at Cuttack and the vakalatnama was also sent to him. However, despite continuous follow-up, the said Advocate did not give them proper updates with respect to the case. During one of the discussions held with the said Advocate on 07.06.2017, they were told that the Vakalatnama had not been received by the said Advocate.

The appellants/OPs sent the documents again to the said Advocate, but thereafter, the said Advocate showed his disinterest with respect to the case, on the issue of quantum of professional fees. The appellants/OPs hired the services of another Advocate, after which, it came to their notice that they had been proceeded against exparte vide order dated 18.04.2017. The necessary documents were then collected by the appellants for the purpose of filing the appeal. The whole process consumed some time and hence, there was delay in filing the appeal. The learned counsel stated that in the interest of justice, they should be permitted to file their written version to the complaint before the State Commission and also allowed to contest the case on merits.

Learned counsel for the respondent stated that the appellants had themselves admitted in the application for condonation of delay that they received the notice to the complaint on 19.01.2017. It was, therefore, their duty to ensure that written statement to the complaint was filed within the time prescribed under section 13 of the Act. Moreover, there was no justification for the condonation of delay of 96 days in filing the present appeal. The complainant should not be allowed to suffer on account of the negligence of the appellants in contesting the case properly.

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

It is an admitted fact that the appellants/OPs received notice in proceedings in consumer complaint before the State Commission on 19.01.2017. It was the duty of the appellants/OPs to ensure that the written version to the complaint was filed within a period of 30 days or extendable period of 45 days as laid down under section 13 of the Act. However, the appellants have tried to put the blame on the Advocate hired by them who did not appear before the State Commission on the date of hearing. The appellants have stated that they hired the services of a new Advocate, after which they learnt that they had already been proceeded against exparte on 18.04.2017. They then took steps and filed the present appeal on 22.08.2017.

A perusal of the interim impugned order passed by the State Commission mentions that Mr. D.K. Patra, Advocate appeared before them and intimated that he had instructions to appear on behalf of the appellants/OPs but the said counsel did not file his vakalatnama before the State Commission. It is made out from the facts stated that the appellants/OPs could not contest the case appropriately before the State Commission as they were unable to come to proper terms with the Advocate hired by them. They then hired a new Advocate after which they learnt about the impugned interim order and then they challenged the same by way of the present appeal. It is clear from these facts that it would be in the interest of justice and fair play that the appellants/OPs are provided a chance to contest the case on merits before the State Commission, as there does not seem to be any intentional lapse on their part in not contesting the case before State Commission.

There is a delay of 96 days in filing the present appeal. In view of the position explained in the application for condonation of delay and the facts stated above, the said delay is ordered to be condoned. The present appeal is also allowed and the impugned interim order passed by the State Commission is set aside. Further, relying upon the order passed by the Hon'ble Supreme Court 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]", the appellants are given a chance to file their written version to the complaint on record subject to payment of ₹20,000/- as cost to the respondents/complainants. The said cost shall have to be paid within a period of 2 weeks from today. Thereafter the appellants/OPs shall file their written version to the consumer complaint before the State Commission within 30 days of the deposit of the cost. The State Commission shall then proceed with the consumer complaint in accordance with law.