This revision is directed against the order of the Delhi State Consumer Disputes Redressal Commission, Delhi (in short, the State Commission) dated 9.2.2012 whereby the State Commission dismissed the application of the petitioner for restoration of his appeal which was dismissed for non-prosecution vide order dated 26 September, 2011. th Briefly put, facts relevant for the disposal of this revision petition are that the respondent/complainant filed a consumer complaint against M/s S.P.L. Ltd. (now M/s Somany Ceremics Ltd.) and M/s Ashoka Hardware Store claiming that the tiles manufactured by the petitioner Company, which were purchased by the complainant from the dealer M/s Ashoka Hardware Store were defective and those tiles developed cracks within a short span after laying. The consumer complaint was contested by the petitioner on the ground that that there was no defect in the tiles and actually the tiles developed cracks because the instructions for safe laying of tiles were not followed and the complainant instead of using correct combination of sand and cement laid the tiles with 100% white cement and for that reason the tiles developed cracks. Learned District Forum (V) (North West District) on consideration of pleadings and the evidence came to the conclusion that the tiles in question were defective and allowed the complaint. The relevant observations of the order of the District Forum are reproduced as under: - OPs have not filed quality check report of these tiles before putting up them for marketing. It is stated by complainant that OP took 4 months to inspect the tiles. In any case OPs were expected to again check the quality, shortcomings if -1- any or any fault in these tiles but they remained blissfully confident that it was wrong masonry work alone which caused cracks to the tiles. OP went on to place reliance on the instructions which are formulated after test and experiments. A photostat copy of important instructions has been filed which are instructions to caution the end users that not following the same would spoil the tiles. These important instructions are general in nature for all tiles and are not specific to Vitroza tiles. The important clause relating to final coating before affixation contains no warning or cautions and does not specifically prohibit application of white cement as coating/adhesive. If these tiles needed a particular procedure in affixation well known to the manufacturers i.e. O.P., the instructions needed to specifically prohibit the departure therefrom by the end users. The masons usually apply standard method of laying the tiles. The complainant has filed a certificate of Mr. M.P. Sharma, Architect which runs as follows: -

This is to certify that as per the building practices in vogue, the tiles are affixed on the wall as with full white/black cement, without sand or full proof adhesive power. We do not confirm the basis of 3 parts sand and one part cement which formulation is apparently and logically not order as well as unsustainable.

Complainant had also purchased white tiles from the sister concern of the OP on 14.12.2000. The same were without vitroza and had applied the formula i.e.

back of the tiles coated with white cement about 3 min thick on the wall with base made up of three parts of sand and one part of cement in affixation.

The same did not cause any damage to the tiles. As per O.P. such tiles are twice fired during manufacturing. The third layer on vitorza tiles had the base of two layers. It is thus not proved that application of white cement on back was strictly prohibited by the instructions specifically. We would thus arrive at the conclusion that the vitroza tiles were defective which as per Section 2 (f) of CP Act

means any fault, imperfection or short coming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law.

Even if we presume that tiles were free from any defect, the OPs were under obligation to specifically warn the consumers that white cement in no case was to be applied as coating during affixation .printing general instructions on the cartons was not sufficient to safeguard the interest of end users. OP No.1 being dealer of OP No.2 also had a duty towards the consumer to give specific demonstrations in applying the tiles on the walls but it has remained ex-parte. For the reasons above, this complaint is allowed. Both OPs are hereby jointly and severally directed to refund to the complainant the entire purchase price of Rs.68,480/- with interest @ 9% p.a. w.e.f. 14.4.2000 till the date of payment. Besides OPs shall pay to the complainant a sum of Rs.10,000/- as costs of litigation. This order be complied with within 30 days of its receipt. Being aggrieved of the order of the District Forum the petitioner preferred an appeal No.45/2010 before the State Commission. State Commission vide its order dated 26 November, 2011 th dismissed the appeal preferred by the petitioner for non-prosecution observing that even on the earlier date of hearing i.e. 14.2.2011 no one was present on behalf of the appellant. The petitioner instead of challenging the aforesaid order of the State Commission moved an application seeking restoration of his appeal dismissed for non-prosecution. Aforesaid application was dismissed vide impugned order dated 9.2.2012 which reads as under: -

1. None for the appellant despite call.

2. Shri Vivek Kumar Gupta for the respondent.

3. Heard. The appeal was dismissed on 26.9.2011 in appellants default, hence this restoration application. The application for restoration is not maintainable here. Application dismissed.

4. Record with consign to record room.

It is against the aforesaid order dated 9.2.2012 revision petition has been filed. Learned counsel for the petitioner has contended that the order of the State Commission is not sustainable for the reason that State Commission has filed to appreciate that the petitioner has a very strong case on merits and he has not been given opportunity of being heard in appeal. It is further contended that the State Commission even failed to appreciate that absence of the counsel for the petitioner on hearing dated 26 September, 2011 was unintentional and actually he was th prevented from appearing on the date of hearing as the counsel was indisposed. We have considered the submissions made on behalf of the petitioner and perused the record. We do not find error or illegality in the impugned order dated 9.2.2012 in view of the judgment of the Supreme Court in Civil Appeal No.8155 of 2001 Rajeev Hitendra Pathak & Ors. vs. Achyut wherein it has been held that District Forum and State Commission are creation Karekar & Anr. of the statute which do not confer any power of review on them. Therefore, they cannot recall their orders. Though the order dated 26 September, 2011 has not been challenged in this revision petition, th we take it upon ourselves to look into the legality of the said order. On reading of the said order we find that the State Commission was constrained to dismiss the appeal for non-prosecution because no one appeared on behalf of the appellant either on 26 September, 2011 or on the th earlier date of hearing i.e. 14.2.2011. Under these circumstances, if the State Commission instead of deciding the appeal on merits has dismissed the appeal for non- prosecution, it cannot be faulted in view of regulations 8 (6) of Delhi Consumer Protection Rules, 1987 which reads thus:

On the date of hearing or any other day to which hearing may be adjourned, it shall be obligatory for the parties or their authorized agents to appear before the State Commission. If appellant or his authorized agent fails to appear on such date, the State Commission may, in its discretion, either dismiss the appeal or decide it on the merit of the case. If respondent or his authorized agent fails to appear on such date, the State Commission shall proceed ex parte and shall decide the appeal ex parte on merits of the case.

Even on merits the petitioner does not seem to have a case. We have perused the above noted reasoning given by the District Forum while allowing the complaint. We do not find any fault in the appreciation of facts done by the District Forum. On this count also we do not find merit in the plea of the petitioner. In view of the above, revision petition is dismissed with cost of Rs.25000/-. Petitioner to comply with the order within four weeks failing which respondent shall be entitled to execute the order through District Forum. ......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER