KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 185/2023

JUDGMENT DATED: 15.06.2023

(Against the Order in C.C. 94/2022 of CDRC, Palakkad)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN     : PRESIDENT

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANT:

BSH Household Appliances Manufacturing Pvt. Ltd., represented by Service Manager Jithesh Gangadaran, Arena House, 2^nd Floor, Main Building, Plot No. 103, Road No. 12, MIDC, Andheri East, Mumbai-400 093.

                    (By Advs. R. Hari Prasath & R. Mohamed Yakoob)

                                                Vs.

RESPONDENTS:

1. Tomy Raphel, Puthusseripaday (HO), Chittur, Palakkad-678 101.

2. Jamal Sales Corporation, represented by its authorized Signatory, Court Road, Palakkad-678 001.

3. UNIQPLUS, Authorized Service Centre, represented by its Manager, No. 30/253, 1^st Floor, West Yakkara, Chungam Junction, Palakkad.

JUDGMENT

SRI. RADHAKRISHNANK.R.: MEMBER

This is an appeal filed under section 41 of the Consumer Protection Act, 2019, by the 3^rd opposite party in C.C. No. 94/2022 before the District Consumer Disputes Redressal Commission, Palakkad (District Commission for short).  As per the order dated 17.01.2023 the District Commission directed the 2^nd and 3^rd opposite parties to cure the defect in the washing machine by replacing the defective part free of cost to the satisfaction of the complainant or in the alternative to pay Rs. 13,500/- being its cost.  The District Commission further directed the 1^st and 3^rd opposite parties jointly and severally to pay a compensation of Rs. 10,000/- for their unfair trade practice and Rs. 5,000/- for the mental agony and Rs. 5,000/- as costs of the litigation.  The opposite parties shall comply with the directions within 45 days from the date of receipt of a copy of the order failing which the opposite party shall pay to the complainant Rs. 250/- per month or part thereof until the date of payment in full and final settlement of this order.

2.  The complaint pertains to defects in the washing machine purchased by the complainant/1^st respondent on 19.09.2017 from the 2^nd respondent/first opposite party who is the authorised dealer of the product. Appellant is the manufacturer and the third respondent/2^nd opposite party is the authorised service centre.  The washing machine was found not working on 05.03.2022 and on intimation the technician of the second opposite party came and inspected it. He informed that the drum was not working and it would be replaced since it was within the warranty period. The cost of the drum was around Rs 13,500/-. Subsequently the third opposite party /appellant sent a mail to the complainant stating that the spare part was not available and they made an offer to give a new washing machine on payment of an additional amount of Rs 18,500/-. This was not acceptable to him as it was not affordable to him. The opposite parties neither repaired the washing machine nor reimbursed the cost of the drum despite his request. Hence the complaint was filed and the District Commission found deficiency in service on the part of opposite parties and passed the impugned order.

3. Complainant filed proof affidavit and Exts.A1 to A4 were marked on his side. Though notice was served on the appellant/ 3^rd opposite party, they did not turn up.  Therefore, they were set ex-parte.

4.  Heard the counsel for the appellant.  Perused the records.

5. The learned Counsel for the appellant submitted that the previous Counsel engaged for the appellant was unable to proceed with the case on the date of hearing on 27.06.2022 and hence they were set ex-parte for non appearance. Hence they could not file their version and advance their defence.  Non-appearance before the District Commission was not wilful and hence they prayed for allowing the appeal and remand back the case for fresh disposal.

6. This is a case in which the appellant did not appear before the District Commission despite receipt of notice and failed to file their version within the statutory period. The District Commission has stated in paragraph 2 of the order appealed against that though notice had been served on the opposite parties they did not turn up and hence they were set ex-parte. Absolutely, no evidence has been produced by the opposite party to show that the observation of the District Commission is erroneous in any manner.  The order of the District commission is as per section 38(3)(b)(ii) of the Consumer Protection Act, 2019, which is reproduced below:

“38 (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 –

1. 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
2. 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.”

In view of the above specific provision, we do not find any error in the order of the District Commission.

7. We further notice that, this is a case in which no version has been filed by the appellant, though they had received notice from the District Commission.  Therefore, in view of the dictum laid down by the Constitution Bench of the Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757, it is not possible for them to file a written version now.  For the above reason, there is no point in admitting this appeal or calling for the Lower Court Records. This appeal is therefore dismissed.

The amount of statutory deposit made by the appellant shall be refunded to them, on proper acknowledgment.          

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                              AJITH KUMARD. : JUDICIAL MEMBER

                                                                                                RADHAKRISHNAN K.R.  : MEMBER

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