Consumer Commission Can Revive Cases Consigned To Records, Does Not Qualify As Review Or Recall: Jammu & Kashmir High Court

"Consigning a matter to the records, without any order adverse to any party or determining the rights of any party and seeking restoration of the said matter, does not amount to either review or recalling the order. The Commission, in such a situation, was under an obligation either to suo motu revive the matter which had been adjourned sine die or pass orders on the motion laid by either of the parties." 

The Court was hearing an appeal filed under Section 17 of the Jammu and Kashmir Consumer Protection Act against an order issued by the J&K State Consumer Disputes Redressal Commission, Srinagar. 

The appellant filed a complaint against the respondent-National Insurance Company Ltd, due to the repudiation of a claim related to an insurance policy covering the appellant's Mineral Water Plant. The complaint was registered in 2016 but was consigned to records on July 24, 2019, due to the consecutive absence of the appellant's counsel for two hearings.

The appellant argued that the Commission erred in dismissing the case for non-prosecution, emphasizing that the complaint had not been decided on merits. As per the J&K Consumer Protection Act, the complaints have to be decided on merits and there is no provision for dismissal of the complaints for non-prosecution and its retrieval did not mean that the Commission was applying its power to review its own order, which has been made a ground to reject the application moved by the Appellant/ complainant, they submitted.

The appellant further contended that the application for restoration was made within a reasonable timeframe considering the challenges arising from the abrogation of Article 370.

The respondent countered that the appellant's application for retrieval was filed after a significant delay and that while the Limitation Act does not apply to the Commission's proceedings, the principles regarding delay must be considered. The respondent contended that the Commission correctly applied its powers and that the delay in filing the retrieval application was unjustified.

The court, after considering the arguments, noted that the complaint was not decided on its merits and was merely consigned to records due to the absence of the complainant's counsel. The court also observes that there was no significant delay in seeking the restoration of the complaint. While the court acknowledges that the J&K Consumer Protection Act does not explicitly allow for dismissal of complaints for non-prosecution, it finds that the Commission misdirected itself in dismissing the retrieval application.

To clarify the jurisdiction of the consumer commissions with regard to their powers to set aside or review their own ex-parte orders the bench relied on ‘Rajeev Hitendra Pathak & Ors. v. Achyut Kashinath Karekar & Anr.’(2011) and held that except that of the National Commission, that they have no power to review or recall their orders.

The court, after considering the arguments, noted that the complaint was not decided on its merits and was merely consigned to records due to the absence of the complainant's counsel. The court also observed no significant delay in seeking the restoration of the complaint.

It was also held that the Commission's action of consigning the case to records without a determination of the rights of the parties neither constituted a review nor amounted to recalling the order. It was determined that the commission should have either suo motu revived the matter or passed orders in response to the motion by either party.

The court emphasized that cases should be decided on their merits rather than dismissed on technical grounds and rules in favour of the appellant. It set aside the Commission's order and ordered the restoration of the complaint for further proceedings, with both parties instructed to appear before the Commission on a specified date.

As such, the High Court allowed the appeal, setting aside the commission's order and ordering the restoration of the complaint for its determination on merits, while requiring both parties to appear before the commission for further proceedings.

Case Title: Tabeen Mineral Water Private Limited Vs National Insurance Company Limited

Citation: 2023 LiveLaw (JKL) 263

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