Details DD MM YY

Date of Judgment 30 05 2023

Date of filing 01 04 2023
Duration 01 29 -

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION

GUJARAT STATE, AHMEDABAD.

Court No. 1
Revision Petition No. 15/2023

1) Max Life Insurance Co Ltd

Plot No. 90A, Sector 18,
Udyog Vihar, 2nd Floor,
Gurugram,
Haryana – 122015

2) Max Life Insurance Co Ltd

3rd Floor, 314, Palldium Business Hub,
Opp. 4 D Mall, Nr. Visat Petrol Pump,
Chandkheda, Ahmedabad - 380005 …Petitioner

Vs

Ms. Jyoti Chirag Roy

W/o Deceased Chirag D. Roy,
E-201, Abhishek Apartment,
Nr. Ganesh College, Nava Vadaj,
Naranpura, Ahmedabad – 380013. ...Respondent

CORAM: Hon’ble Mr. Justice V. P. Patel, President

Hon’ble Mr. P. R. Shah, Member

APPEARANCE: Mr. N. S. Dave, Ld. Adv. For the petitioner

Mr. V. M. Vyas/Mr. S. G. Luste, Ld. Adv. for the
respondent

Order by Justice Mr. V. P. Patel, President.

1. The petitioner has filed this revision petition under Section 47 (1)
(b) of the Consumer Protection Act, 2019 being aggrieved by and
dissatisfied with the order dated 15/11/2022 and 15/02/2023 passed
by the Ld. District Consumer Disputes Redressal Commission,
Ahmedabad City (Main) (for short Ld. District Commission) in CC no.

Akshay RP/15/2023 Page 1 of 19

1558/2022, wherein they have claimed main relief in terms of Para 9 (b)
and (c) at page 6 which reads as under:

b. To quash and set aside the order dt. 15/02/2023 and also inturn
the order dt. 15/11/2022 passed by the Hon’ble DCDRC Ahmedabad
City (Main) in CC/1558/2022;

c. To direct the Hon’ble DCDRC Ahmedabad City (Main) to allow the

Applicant’s advocate to file his Vakalatnama afresh, to allow the
Applicants to further proceed with the complaint proceedings legally
i.e. to allow the Applicant’s to lead evidence, cross examine the
Complainant/witness through interrogatories, allow the Applicants to
produce their documentary evidence along with written arguments
and also allow the applicant’s advocate to orally argue the complaint
to meet the ends of justice;

2. Heard Ld. Adv. Mr. N. S. Dave for the petitioners and Ld. Adv.
Valmik M Vyas and Ld. Adv. Sumit G Luste for respondent. Perused
record of the case. The petitioners were original opponents and the
respondent was original complainant before the Ld. District Commission.
Therefore, we refer in this petition as per their original status.

Facts of the case

3. That the complainant has filed Consumer Complaint
no.1558/2022 before the Learned District Consumer Dispute Redressal
Commission, Ahmedabad City (Main) wherein, she has claimed to pay
Rs.50,00,000/- with 12 % interest from opponent and Rs.2,50,000/- as
mental agony and harassment and further to pay Rs.2,50,000/- towards
the cost of the litigation. It is the case of the complainant that the
complainant’s husband had taken a life insurance policy for the period
from 30/12/2020 to 30/12/2062 for the sum insured Rs.50,00,000/-.
The amount of premium of Rs.31,506/- was paid. The husband of the
complainant was suffered from Covid-19 on 21/04/2021. That the
insured husband was hospitalised and get recovered from Covid and
discharged on 06/05/2021. Thereafter, on 10/05/2021 suddenly the
complainant’s husband had suffered severe chest pain and was taken to
hospital. Despite treatment given by the hospital, the complainant’s

Akshay RP/15/2023 Page 2 of 19

husband was expired on 10/05/2021. That the complainant had
informed the death claim to the opponent insurance company. The
insurance company has investigated the death claim. The death was just
within 5 months from the date of policy. That the death claim was
received on 13/07/2021. During the course of investigation that the
insured was suffered from Hypothyrodism and evelated triglyceride as
well as disturbed cholesterol level. That the insured has consulted Dr.
Gunvant Patel on 07/10/2018 and since then he was taking Ecosprin
along with the other drugs. He was also advised to undergo 2D Echo and
TMT tests at the earliest and also to continue other drugs prescribed by
Dr. Kamal. He was undergone Troponin - I test. The test suggests that
the condition was not good of the insured. That the claim was repudiated
on 10/11/2021. The complaint was filed before the Ld. District
Commission on 13/09/2022. The complaint was admitted and notice
was issued to the petitioner/opponent insurance company. It is also
stated that the notices have been served on 07/10/2022 and
01/10/2022 to the opponent insurance company respectively. The
advocate of the complaint had filed the application dated 15/11/2022
along with the RPAD Track Report of the Service.

4. It is the case of the petitioner that the complaint was listed on

23/11/2022, 4/01/2023 and 15/02/2023 before the Ld. District
Commission. The Ld. Adv. for the opponent insurance company had
appeared on 15/02/2023. The Ld. Adv. has filed simple application to
take vakalatnama on record and since the Rojkaam provides that the
matter is ex-parte against the opponent. It was mentioned in the said
application that to reopen the stage to file Vakalatnama in the interest of
justice. The same application was rejected with cost. It is further stated
that the order dated 15/11/2022 and order dated 15/02/2023 are
against the natural justice. Therefore he has filed present petition.

Arguments of the petitioner

Akshay RP/15/2023 Page 3 of 19

5. Ld. Adv. for the petitioner has argued that on the 1st date of
hearing i.e. on 15/11/2022, Ld. District Commission has passed an
order to proceed ex-parte against the opponents. That the petitioner has
filed an application to file Vakalatnama on behalf of opponent no.2 and
requested to reopen the stage to file Vakalatnama. On the application,
Ld. Adv. for the complainant has made endorsement ‘no objection’. In
spite of this endorsement of the Ld. Adv. for the complainant, the Ld.
District Commission has rejected the application with cost. The cost is
not quantified. It is further argued that to place the Vakalatnama is the
right of the party to defend his case. The order passed by the Ld. District
Commission is against the principle of natural justice. Ld. District
Commission has also rejected the said application and not granted the
relief to reopen the stage of opponent. That the Ld. District Commission
has taken extreme hyper technical view. It is further argued that the
opponent insurance company’s Advocate has also served the copy of the
written statement to the complainant in advance along with supporting
documents.

6. That the complaint involved the amount of Rs.50,00,000/- and it’s

a high stake matter. Ld. District Commission has hurriedly passed an
order. It is further argued that though the numbers of old complaints are
pending before the Ld. District Commission, the Ld. District Commission
could have granted some time. It is also argued that inspite of no reply
was filed by the defendant, he can cross-examine the complainant and
witness of the complainant. That the opponent has a right to argue the
matter in absence of written statement. That due to the ex-parte order
passed by the Ld. District Commission, the defence of the insurance
company cannot be permitted and it is clear case of violation of natural
justice as well as other relevant provision of law. That the opponent
insurance company is remediless. It is also argued that rojkaam indicate
that the matter was adjourned on 23/11/2022, but no proceeding has
been taken on 23/11/2022. It is further argued that this practice of the
Ld. District Commission adopted in most of the cases. That matters are

Akshay RP/15/2023 Page 4 of 19

not called out and matters are not taken on board inspite of the matter is
show on Confonet. The Ld. District Commission has not mentioned the
proceedings of particular date. Due to this practice the complainant
cannot see what happened on a particular adjournment date. Though
the Vakalatnama on behalf of the opponent was filed, neither any order
passed by the Ld. District Commission nor Vakalatnama was taken on
record. That the opponent insurance company has to file written
statement within 45 days. If it is not produced within 45 days, still the
opponent insurance company has a right to cross-examine the
complainant and witness of the complainant. He has further argued that
the complainant can refer documents during the course of cross-
examination. That the order passed by the Ld. District Commission is not
legal, valid and correct in the eye of law. Therefore, it requires to be set
aside. He has requested to allow the petition and grant the relief claimed
in the petition. He has relied upon 2 judgments which will be discussed
hereinafter.

Arguments of the respondent

7. Ld. Adv. for the respondent has argued that the order passed by
the Ld. District Commission is legal, valid and correct in the eye of law.
That the Ld. District Commission has taken into consideration an
application submitted by the Ld. Adv. for the complainant and RPAD
tract report and passed an order as per the provision of Consumer
Protection Act therefore, it does not require any interference. It is further
argued that if no objection is written on the application, opponent has no
right to file written statement and to cross-examine the witness after
passing the ex-parte order. It is further argued that the provision of the
Civil Procedure Code is not applicable to the Consumer Courts.
Proceeding under the Consumer Protection Act is summary trial and the
defendant cannot cross-examine the complainant. That the matter is
required to be decided on the basis of affidavit and documentary
evidence. If any ex-parte order is passed then the opponent has no right
to file documentary evidence as well as to cross-examine the witness and

Akshay RP/15/2023 Page 5 of 19

filing written arguments. That the Ld. District Commission has ordered
in consonance with the provision of Consumer Protection Act. Therefore,
the Revision Petition is required to be dismissed. He has relied upon 1
judgment which will be discussed hereinafter.

Merits of the case

8. Before we enter in the merits of the case, it is required to mention
the chronology of events happened before the Ld. District Commission
which are as under:
a) 13/09/2022: The complaint was filed before the Ld. District
Commission by the complainant (Page no.16)
b) 20/09/2022: The Ld. District Commission has passed
admission order and ordered to issue notice to the opponent. The
matter was adjourned for 17/10/2022. (page no.17)
c) 29/09/2022: The notices were issued through the RPAD to
the opponent no.1 and 2. This shows on the Postal Track Report of
RPAD. (page no. 38 and 40)
d) 01/10/2022: The notice was served to the opponent no.2.
(Postal Track Report at page no.39)
e) 07/10/2022: The notice was served to the opponent no.1
(Postal Track Report at page no.38)
f) 17/10/2022: The matter was called out, Ld. Adv. for both
the parties are absent. This is reflected in the Rojkaam at page
no.8 but as per Confonet daily order, no order is reflected on the
Confonet Website, nothing stated in the proceeding on the
Confonet Website. The matter was adjourned on 15/11/2022.
g) 15/11/2022: The Ld. Adv. for the complainant has filed an
application that the notices were served to the opponent insurance
company and Postal Track Report is attached herewith. The said
application was taken on record by the Ld. District Commission.
(Page no.37) as per the Rojnama, the complainant has filed Postal
Track Report and the Ld. District Commission has passed an order
to proceed ex-parte against the opponents. The matter was

Akshay RP/15/2023 Page 6 of 19

 adjourned on 23/11/2022. This reflected in the Rojnama. (page
no.8) but as per the Confonet Daily order, no order is passed,
proceedings does not show anything.
h) 23/11/2022: As per the Confonet website, the matter was
adjourned on 04/01/2023. In the proceedings nothing is stated.
i) 04/01/2023: As per the Confonet website, on 04/01/2023
nothing stated in the proceedings, this date is not reflected in the
Rojkaam also. The matter was adjourned on 15/02/2023.
j) 15/02/2023: As per Rojkaam, it is stated Ld. Adv. for both
the parties are present. Ld. Adv. for the opponent has filed an
application to set aside the ex-parte proceeding. The said
application is rejected. As per Confonet proceedings only both are
present is mentioned. The matter is adjourned on 03/04/2023.
(page no.8)
k) 15/2/2023: Ld. Adv. for the opponent insurance company
has filed an application to reopen the stage to file Vakalatnama.
(page no.41) Ld. Adv. for the complainant has made an
endorsement ‘no objection’ on this application. The said application
is rejected. (page no.42)
l) 15/02/2023: Ld. Adv. for the opponent has filed
Vakalatnama. Nothing is stated on this Vakalatnama. (page no.43)

Impugned order
9. Ld. District Commission has passed order dated 15/11/2022
which reads as under:
“Opponents have been served with the notice of the complaint. The
complainant has filed the tracking report today, the opponent were
served on 07/10/2022 and they had to appear before this
Commission on 17/10/2022. But no one has appeared hence, it is
ordered to proceed ex-parte against the opponents.”

10. Ld. District Commission has passed below mentioned order on

pursis dated 15/02/2023 which is produced at page no.40 before this
Commission:

Akshay RP/15/2023 Page 7 of 19

 “Matter is allowed to be ex-parte against the opponents hence,
opponents cannot be appeared and produce anything in reply.”

11. Ld. District Commission has passed following order on the

application submitted by the Ld. Adv. for the opponent no.2 insurance
company which reads as under:
“The matter is ordered to be proceeded exparte against the
Opponents on 15/11/2022 and today the application is filed by LA
for Opponent without application signed by Opponent and without
supporting affidavit. Opponent has not shown any sufficient ground
to show that why it could not appear on the date of appearance and
also subsequent to that date. So in the absence of sufficient cause
no order of exparte can be set aside. Even though complainant has
no objection. Hence in our view application for setting aside exparte
order can’t be allowed. Hence, we pass following order. Application
is hereby rejected with costs.”

12. On vakalatnama, Ld. District Commission has nothing mentioned.

The copy is produced at page no.43.

13. We may refer to some of the legal provision which are as under:

13.1 Consumer Protection Act, 2019:

37. Reference to mediation. – (1) At the first hearing of the
complaint after its admission, or at any later stage, if it appears to
the District Commission that there exists elements of a settlement
which may be acceptable to the parties, except in such cases as may
be prescribed, it may direct the parties to give in writing, within five
days, consent to have their dispute settled by mediation in
accordance with the provisions of Chapter V.

38. Procedure on admission of complaint.- (1) The District

Commission shall, on admission of a complaint, or in respect of
cases referred for mediation on failure of settlement by mediation,
proceed with such complaint.

(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.

Akshay RP/15/2023 Page 8 of 19

 (b) If the opposite party, on receipt of a copy of the complaint,
referred to him under clause (a) denied or disputed 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
allegations contained in the complaint, or

(ii) Ex parte 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
Commission.

(6) Every complaint shall be heard by the District Commission on the

basis of affidavit and documentary evidence placed on record:

Provided that where an application is made for hearing or for

examination of parties in person or through video conferencing, the
District Commission may, on sufficient cause being shown, and after
recording its reasons in writing, allow the same.

(8) Where during the pendency of any proceeding before the District
Commission, if it appears necessary, it may pass such interim order
as is just and proper in facts and circumstance of the case.

(9) For the purposes of this section, the District Commission 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:-

(a) the summoning and enforcing the attendance of any defendant or

witness and examining the witness on oath;

(b) requiring the discovery and production of any document or other

material object as evidence;

(e) issuing of commissions for the examination of any witness, or

document; and

(f) any other matter which may be prescribed by the Central

Government.

13.2 Consumer Protection (Consumer Commission Procedure)

Regulation 2020

Akshay RP/15/2023 Page 9 of 19

 11. Adjournment.- (3) Request for adjournment shall be entertained
only in exceptional circumstances and for reasons to be recorded in
writing:

Provided that in case of a prayer for adjournment under any other

circumstances, the Consumer Commission may, unless sufficient
cause is shown, impose such cost, as it deems necessary, for
granting such adjournment.

17. Ex parte interim order.- If an application for vacating or

modifying or discharging the ex parte interim order is filed by any of
the parties, it shall be decided within forty-five days and the
Commission shall have the discretion to extend the ex parte interim
order if such application is not decided within forty-five days.

13.3 Civil Procedure Code

Order 7 Rule 14. Production of document on which plaintiff

sues or relies. – (4) Nothing in this rule shall apply to document
produced for the cross-examination of the plaintiff’s witness, or,
handed over to a witness merely to refresh his memory.

Order 8 Rule 1. Written statement.- (4) Nothing in this rule shall

apply to documents produced for cross-examination of plaintiff’s
witness or handed to a witness merely to refresh his memory.

14. Ld. Adv. for the opponent has relied upon following judgments:
(i) AIR1989 SC 162 in case of Modula India Vs. Kamkshay Singh Deo
dated 27/09/1988 in Civil Appeal No.173 of 1983 wherein, it is held
as under:
Para 17. We agree that full effect should be given to the words that
defence against ejectment is struck off. But does this really deprive
the defendant tenant of further participation in the case in any
manner? While it is true that, in a broad sense, the right of defence
takes in, within its canvass, all aspects including the demolition of
the plaintiff’s case by the cross-examination of his witness, it would
be equally correct to say that the cross-examination of the plaintiff’s
witnesses really constitutes a finishing touch which completers the
plaintiff’ case. It is a well established proposition that no oral
testimony can be considered satisfactory or valid unless it is tested
by cross-examination. The mere statement of the plaintiffs witnesses
cannot constitute the right of the defence to cross-examine the
plaintiff’s witness can, therefore, be looked upon not as a part of its
own strategy of defence but rather as a requirement without which
the plaintiff’s evidence cannot be acted upon. Looked at from this
point of view it should be possible to take the view that, thought the
defence of the tenant has been struck out, there is nothing in law to

Akshay RP/15/2023 Page 10 of 19

 preclude him from demonstrating to the court that the plaintiff’s
witness are not speaking the truth or that the evidence put forward
by the plaintiff is not sufficient to fulfil the terms of the statute.

Para 18. To us it appears that the basic principle that where a

plaintiff comes to the court he must prove his case should not be
whittled down even in a case where no defendant appears. It will at
once be clear that to say that the Court can only do this by looking
the plaintiff's evidence and pleadings supplemented by such
questions as the court may consider necessary and to completely
eliminate any type assistance from the defendant in this task will
place the court under a great handicap in discovering the truth or
otherwise of the plaintiffs statements. For after all, the court on its
own motion, can do very little to ascertain the truth or otherwise of
the plaintiff's averments and it is only the opposite party that will be
more familiar with the detailed facts of a particular case and that
can assist the court in pointing out defects, weaknesses, errors and/
inconsistencies of the plaintiffs case.

Para 19. We, therefore, think that the defendant should be allowed
his right of cross-examination and arguments. But we are equally
clear that this right should be subject to certain important
safeguards. The first of these is that the defendant cannot be
allowed to lead his own evidence. None of the observations or
decisions cited have gone to the extent of suggesting that, inspite of
the fact that the defence has been struck off, the defendant can
adduce evidence of his own or try to substantiate his own case.

Para 20. Secondly, there is force in the apprehension that if one

permits cross-examination of the plaintiff’s witness by the defendant
whose defence is struck off, procedural chaos may result unless
great case is exercised and that it may be very difficult to keep the
cross-examination within the limits of the principles discussed
earlier. Under the guise of cross-examination and purported
demolition of the plaintiff’s case, the defendant may attempt to put
forward pleas of his own. To perceive quickly the difference between
questions put out to elicit a reply from the plaintiff which may
derogate from his own case and questions put out to substantiate
pleas in defence which the defendant may have in mind and restrict
the cross-examination to its limits will be not easy task. We think,
however, that this is a difficulty of procedure, rather than substance.
As pointed out by Ramendra Mohan Dutta, J. This is a matter to be
sorted out in practical application rather than by laying down a hard
and fast rule of exclusion.

Para 21. A third safeguard which we would like to impose is based

on the observations of this Court in Sangram Singh’s case. As
pointed out therein, the essence of the matter in all such case is that

Akshay RP/15/2023 Page 11 of 19

 the latitude that may be extended by the court to the defendant
inspite of his not having filed a written statement or where he does
not appear to contest the case the plaintiff proceeds on the basis
that there is no real opposition and contents himself by letting in just
enough evidence to establish a prima facie case. Therefore, the court
should ensure that by permitting the defendant at a later stage
either to cross-examine the witness or to participate in the
proceeding the plaintiff is not taken by surprise or gravely
prejudiced. This difficulty however can be easily overcome in
practice, because there is a wide discretion with the court and it is
always open to the court, where it believes that the plaintiff has
been misled, to exercise its discretion to shut out cross-examination
or to regulate it in such manner as to avoid any real prejudice to the
interests of the plaintiff.

Para 22. An objection to our above conclusion has been raised on

the basis of the provisions of Order VIII of the CPC. Rules1, 5 and 10
of this Order have been recently amended by the Amendment Act of
1976. We find nothing in these rules which will support the
contention urged on behalf of the respondents. Rule 1 merely
requires that the defendant should present a written statement of
his defence within the time permitted by the court. Under Rule 5(2),
where the defendant has not filed a pleading it shall be lawful for
the court to pronounce judgment on the basis of the facts contained
in the plaint except against a person under disability but the court
may in its discretion require any such fact to be proved. Again under
Rule 10 when any party from whom a written statement is required
fails to present the same within the time permitted or fixed by the
court, the court "shall pronounce judgment against him or make such
order in relation to the suit as it thinks fit." It will be seen that these
rules are only permissive in nature. They enable the court in an
appropriate case to pronounce a decree straightaway on the basis of
the plaint and the averments contained therein. Though the present
language of Rule 10 says that the court "shall" pronounce judgment
against him, it is obvious from the language of the rule that there is
still an option with the court either to pronounce judgment on the
basis of the plaint against the defendant or to make such other
appropriate order as the court may think fit. Therefore, there is
nothing in these rules, which makes it mandatory for the court to
pass a decree in favour of the plaintiff straightaway because a
written statement has not been filed. Reference was made before us
to Sub-rule 1 of Rule 5. This Sub-rule, however, has application only
in a case where a pleading is filed but does not contain a specific or
implicit denial of the averments contained in the plaint or other
document to which it is a reply. Rule 5(1) cannot be made use of to
sustain the contention that where there is no written statement the
court is bound to accept the statements contained in the plaint and

Akshay RP/15/2023 Page 12 of 19

 pass a decree straightaway. These provisions of the CPC, far from
supporting the contentions of the plaintiff that a decree on the basis
of the plaint should follow a failure to file the written statement,
rather indicate a contrary position, namely, that even in such cases,
it is a matter for the court to exercise a discretion as to the manner in
which the further proceedings should take place. We, therefore, do
not think that the terms of Order VIII in any way conflict with the
conclusion reached by us.

Para 23. For the above reasons, we agree with the view of
Ramendra Mohan Dutta, ACJ that, even in a case where the defence
against delivery of possession of a tenant is struck off under Section
17(4) of the Act, the defendant, subject to the exercise of an
appropriate discretion by the court on the facts of a particular case,
would generally be entitled:
(A) to cross-examine the plaintiff's witnesses; and
(b) to address argument on the basis of the plaintiff's case.

We would like to make it clear that the defendant would not be

entitled to lead any evidence of his own nor can his cross-
examination be permitted to travel beyond the very limited objective
of pointing out the falsity or weaknesses of the plaintiff's case. In no
circumstances should the cross-examination be permitted to travel
beyond this legitimate scope and to convert itself virtually into a
presentation of the defendant's case either directly or in the form of
suggestions put to the plaintiff's witnesses.

(ii) MANU/KE/3600/2021 in the case of Shahul Hameed Vs. Johny

and Ors. Decided on 23/11/2021 in RFA (Indigent) No. 473 of 2019
wherein, it is held as under:
Para 3. The courts are established as the last resort of an aggrieved
person and hence requires utmost care and caution while discharging their
duties and they shall not adopt any easy method of disposal of suit in a
routine manner without attending the disputed questions with the pleading
and evidence thereof. The practice being adopted by some of the
subordinate courts for easy disposal, taking the advantage of the absence
of the defendant, by stating "uncontroverted evidence/unchallenged
evidence proves the case of plaintiff" without going into the admissibility of
the evidence and its legal impact on the issues involved is too dangerous
and hence cannot be sustained. It is not the challenge that governs, but
the entitlement of the relief, for which necessarily the court must go into
the pleading and evidence. When written statement is submitted, the court
must address its effect on the case advanced by the plaintiff such as
admission, question of limitation etc. It is too adventurous to grant a decree
in favour of the plaintiff on the sole ground that the defendant remained ex
parte. The courts are not expected to adopt such easy method of disposal

Akshay RP/15/2023 Page 13 of 19

of the suit without a speaking order and without adjudicating the
disputes/issues on the pleading and evidence involved.

15. Ld. Adv. for the respondent/original complainant relied upon the
judgment of Hon’ble Supreme Court in case of New India Assurance Co.
Ltd vs Hilli Multipurpose Cold Storage decided on 4th March, 2020 in
Civil Appeal no.10941-10942 of 2013. Wherein Hon’ble Supreme
Court has held as under:

Para 41. To conclude, we hold that our answer to the first question
is that the District Forum has no power to extend the time for filing
the response to the complaint beyond the period of 15 days in
addition to 30 days as is envisaged under Section 13 of the
Consumer Protection Act; and the answer to the second question is
that the commencing point of limitation of 30 days under Section 13
of the Consumer Protection Act would be from the date of receipt of
the notice accompanied with the complaint by the opposite party,
and not mere receipt of the notice of the complaint.

15.1 This judgment is not applicable to the present case. As the issue
involved in this case is what will be remedy available to the defendant
after not filing the written statement. In this case the Ld. Adv. for the
petitioner has fairly submitted that he has no right to file written
statement after 45 days from the date of service of notice with
documents. He has emphasised his arguments on the point of law. That
in absence of written statement filed by the defendant, still the defendant
has a right to cross-examine the complainant and witness of the
complainant and also refer to the documentary evidence in the cross-
examination of complainant and their witness and filing of written
argument on behalf of the defendant.

16. One of the arguments advanced by the Ld. Adv. for the petitioner is
that the Ld. District Commission has hurriedly passed an order inspite of
number of old cases are pending before this commission. We have
collected the list from the Confonet which is produced here. It shows that
there are 3353 matters were still pending. We fail to understand the
hurry of District Commission where 3353 cases are in pipeline for

Akshay RP/15/2023 Page 14 of 19

expeditious disposal. The District Commission might have adopted the
practice for easy disposal, taking the advantage of the absence of the
defendant as observed by Kerala High Court in case of Shahul Hammed
V/s Johny and others (supra).

17. Under the Consumer Protection Act, the authorities are established
for settlement of the consumer disputes. It is true that the proceedings
before the Consumer Commission is a summary proceeding and it
should be disposed expeditiously but, it does not mean that the
opponent is not required to be hear or only the complainant side is
required to be taken into consideration for settlement of dispute.

17.1 The notice is required to be issued to the other side under Section
38 (3) (a) directing him to give his version of the case. If opposite party
denies or dispute allegations containing in the complaint or omits or file
to take any action to represent his case within time given by the Ld.
District Commission which shall proceed to settle the consumer dispute
under Section 38 (3) (b) of the Consumer Protection Act. Consumer
Commission can pass an order to proceed ex parte.

17.2 This provision is applicable when other side has not come before
the Commission. If other side had come before the Commission than it
cannot be said that he omits or fail to take any action to represent his
case.

17.3 If Consumer Commission has settled the case and made final
order, the opponent has to file an appeal. If the Consumer Commission
has not passed the final order and opponent come before the Consumer
Commission and takes action to represent his case than the Consumer
Commission should not proceed to settle the matter ex-parte. But decide
the case considering the rights of defence under the law. See ratio laid
down by Hon’ble Supreme Court in Moduk India (supra) case.

17.4 The Ld. District Commission can proceed the matter ex-parte on
evidences brought by the complainant where the opposite party omits or

Akshay RP/15/2023 Page 15 of 19

fails to take any action to represent his case. But if the opposite party
come before the Commission and apply to set aside ex-parte order. The
same is required to be dealt with considering the natural justice.

17.5 The Ld. District Commission is empowered under Section 38 (8) to

pass such interim order as is just and proper in the facts and
circumstances of the case. This shows that the Ld. District Commission
can pass an order to proceed ex-parte against the opponent, but at the
same time considering the natural justice, if opponent appears and take
any action or apply to set aside ex-parte order. In that case, the Ld.
District Commission is empowered to pass interim order to set aside the
ex-parte order.

18. The Ld. District Commission had written his statement that the
application is without supporting affidavit. There are no specific rules
that every application is required to be submitted with an affidavit. It is
true that the main complaint is required to be supported with the
affidavit. If Ld. District Commission think fit just and proper, the Ld.
District Commission could have asked for affidavit. But here in this case
the Ld. Adv. for the complainant has made an endorsement ‘no
objection’. In such case, there is not controversy between the party, the
Ld. District Commission in the interest of justice could have passed an
order without affidavit.

19. Ld. District Commission has also cited another reason that there is
no sufficient cause to set aside an ex-parte order. To proceed matter by
party is a good sign of adjudication and good reason to set aside ex parte
order. There is nothing transpired from the Section 38 (3) that there
should be a sufficient reason to set aside an ex-parte. Only a
requirement of law is to take any action to present his case, defendant
has taken an action by filing Vakalatnama to set aside ex-parte and
produced arguments and documentary evidence on record. If an ex-parte
order is not set aside and the reasonable opportunity is not given to the
other side, fraudulent complainant may get unwanted benefits due to

Akshay RP/15/2023 Page 16 of 19

procedural defects. The Procedural Laws are meant to regulate the
procedure not to penal the party. This connotation is established by the
Justice Vivian Bose in case of Sangram Singh V/s Election Tribunal
Korah.

19.1 Hon’ble Supreme Court has reiterated the said principle in case of
Prahalad Shankarrao Tajale vsState of Mahrashtra in Civil appeal
no.2601 of 2018 (S.L.P. (c) NO. 35629 of 2017) on 8/3/2018.

Para 16. This case reminds us of the apt observations made by the
learned Judge of this Court, Vivian Bose J., in Sangram Singh vs.
Election Tribunal Kotah & Anr., AIR 1955 SC 425. His Lordship,
speaking for the Bench, in his distinctive style of writing with subtle power
of expression reminded the Courts as to how the code of procedure should
be construed in the context of rights of the parties to the lis, which affects
their lives and properties. His Lordship reminded that procedural laws
should not be construed like a penal provision to punish the parities as far
as possible. The following is the classic passage, which is always followed
for doing substantial justice to the parties to the lis:

“A code of procedure must be regarded as such. It is procedure something

designed to facilitate justice and further its ends: not a penal enactment
for punishment and penalties; not a thing designed to trip people up. Too
technical a construction of sections that leaves no room for reasonable
elasticity of interpretation should therefore be guarded against (provided
always that justice is done to both sides) lest the very means designed for
the furtherance of justice be used to frustrate it. Our laws of procedure are
grounded on a principle of natural justice which requires that men should
not be condemned unheard, that decisions should not be reached behind
their backs, that proceedings that affect their lives and property should
not continue in their absence and that they should not be precluded from
participating in them. Of course, there must be exceptions and where they
are clearly defined they must be given effect to. But taken by and large,
and subject to that proviso, our laws of procedure should be construed,
wherever that is reasonably possible, in the light of that principle.”

20. As per Section 38 (3) (c) the Ld. District Commission has to decide
the complaint on merits. If complainant fails to appear the truthfulness
of the merits can be brought on record by the cross-examination of the
party who has filed an affidavit. As per Civil Procedure Code Order 7 Rule
14 (4) and Order 8 Rule 1 (a) (4), the documents can be referred during
the cross-examination of the complainant and complainant’s witness or

Akshay RP/15/2023 Page 17 of 19

opponent and opponent’s witness respectively. If this procedure is done,
the natural justice would have been survived.

21. Section 38(6) of the Consumer Protection Act, 2019 empowers the
Consumer Commission to permit examination of parties in person. The
examination includes chief examination, cross-examination and re-
examination. Under Section 38 (9), the Consumer Commission have
same powers as are vested in a Civil Court under the Code of Civil
Procedure, 1908 while, trying a suit in respect of (a) summoning and
enforcing the attendance of any defendant or witness and examination
the witness on oath, (b) requiring the discovery and production of any
document and other material object and (c) issuing of Commissions for
the examination of any witness or document.

21.1 The District Commission should have been liberal in taking a view
in the matter and accordingly should have set aside the order of
proceeding matter ex parte under requisition 17 of CP (CCP) Regulation,
2020 and have granted opportunity of taking vakalatnama on record and
given opportunity to defend the case according to law by imposing the
appropriate cost to the opponent/petitioner Under Regulation no. 11 (3)
of Consumer Protection (Consumer Commission Procedure) Regulation,
2020.

22. In view of deliberation as above and considering the ground stated

in petition, argument advanced by Ld. Adv. for both the parties, ratio laid
down in above referred cases, documentary evidence produce on record,
fact and circumstances of the case, we are of the opinion that the order
passed by the Ld. District Commission is not legal, valid and proper in
the eye of laws. The Ld. District Commission has failed to exercise a
jurisdiction so vested in it and also has acted in exercise of its
jurisdiction not legally or with material irregularity. Therefore, the
revision petition is required to be allowed. Hence, following order is
passed.

Akshay RP/15/2023 Page 18 of 19

 ORDER
1. The revision petition no.15/2023 is hereby allowed.
2. The order dated 15/11/2022 and 15/02/2023 are hereby quashed
and set aside.
3. Petitioner/original opponents are permitted to file their vakalatnama
afresh, and they are allowed to defend their case as per ratio laid
down by the Hon’ble Supreme Court in above referred case.
4. We have not stated anything as regards to merits of the case.
Therefore, the Ld. District Commission shall proceed the case
according to law.
5. No order as to cost.
6. Registry is directed to send certified copy of this judgment to the
parties free of cost. Registry is further directed to send copy of this
judgment to the Ld. District Commission, Ahmedabad City (Main)
through E-mail in PDF format for taking necessary action.

Pronounced in open court today on 30/05/2023.

[Ms. P. R. Shah] [Justice Mr. V. P. Patel]

Member President

Akshay RP/15/2023 Page 19 of 19