The State Commission cannot dismiss a complaint for non-appearance without deciding on merits as mandated by law.

JUDGMENT :

ZIYAD RAHMAN A.A., J.

The petitioner is the complainant No.9 in C.C. No.9/21 on the files of the Kerala State Consumer Disputes Redressal Commission. The said complaint was filed by the petitioner along with respondents 3 to 13, against the respondents 1 and 2 herein. Various reliefs were sought in the said complaint against the respondents 1 and 2.

2. The grievance of the petitioner which necessitated the filing of this writ petition is that, as per Ext.P7 order, the complaint submitted by the petitioner and other complainants, was dismissed for non prosecution, without going into the merits of the contentions. The challenge raised by the petitioner is that, as per the statutory stipulations contained in the Consumer Protection Act, 2019, particularly Section 38(2) (c) read with Section 49 of the Consumer Protection Act, 2019, the State Commission could not have dismissed a complaint for non prosecution and it was obligatory on the part of the Commission to decide the matter on merits, even if the complainant fails to appear on the date of hearing. It was in these circumstances, this writ petition was filed by the petitioner, impleading other complainants as respondents 3 to 13.

3. The respondents 1 and 2 entered appearance through Counsel and a detailed counter affidavit has been filed. In the counter affidavit, the maintainability of the writ petition was challenged, on the reason that, even though the petitioner alone filed the writ petition, it was in fact on behalf of the respondents 3 to 13 as well, and therefore, the court fee at the rate of Rs.100 per person under the provisions of the Kerala Court Fee and Suit Valuation Act, 1959, ought to have been paid. Apart from the above, it was also contended that, by virtue of Rule 12 of the Consumer Protection (Consumer Disputes Redressal Commissions) Rules, 2020, the State Commission is empowered to dismiss a compliant for default due to non appearance of the complainant. It is also averred that, in Section 49, by which the section 38 was made applicable to the State Commission, it is specifically mentioned that the provisions in Section 38 would be applicable to the State Commission with “necessary modifications”. Therefore, it was contended that, the stipulations in Rule 12 of the Consumer Protection (Consumer Disputes Redressal Commissions) Rules, 2020 would amount to “ necessary modification” as envisaged in Section 49 and therefore, the order impugned in this case is not liable to be interfered with.

4. Apart from the above, it was also contended that, Section 58(1)(b) provides for an alternate remedy to approach the National Commission, in case the State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Therefore, on the ground of existence of an alternate remedy, this writ petition is not maintainable.

5. I have heard Sri.Johnson Gomez, learned Counsel for the petitioner and Sri.John Vithayathil, learned Counsel for the respondents 1 and 2.

6. To substantiate the illegality of Ext.P7 order, by which the complaint of the petitioner was rejected for non appearance of the complainants , the learned Counsel for the petitioner, places reliance upon the decision rendered by this Court in Suresh Nathan v. The State Consumer Dispute Redressal Commission [2025 (2) KLT 97], wherein it was held that, the State Commission cannot dismiss a complaint otherwise than on merits when complainant fails to appear before the Forum.

7. However, the learned Counsel for the respondents 1 and 2 attempts to distinguish the said judgment, by pointing out that, while deciding the issue, the impact of Section 49 read with Rule 12 of the Consumer Protection (Consumer Disputes Redressal Commissions) Rules, 2020, was not brought to the notice of the said Court. Therefore, the learned Counsel pointed out that, the said decision cannot be made