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2011 DIGILAW 621 (UTT)

GOLA GANPATI MOTORS v. VIJAY PAL SINGH RAJPOOT

2011-10-07

B.C.KANDPAL, C.C.PANT, KUSUM LATA SHARMA

body2011
ORDER Hon'ble Justice B.C. Kandpal, President (Oral) This is an appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 28.09.2010 passed by the District Forum, Nainital in consumer complaint No. 75 of 2010. By the order impugned, the District Forum has ex-parte allowed the consumer complaint against the appellant and directed the appellant to hand over the Tata Safari vehicle of the complainant to him after fully repairing the same without charging any amount and also to compensation of Rs. 5,000/- towards mental agony and Rs. 3,000/- towards litigation expenses. 2. In brief, the facts of the case, are that the complainant is the registered owner of vehicle No. DL- 3CAA-2045 (Tata Safari). On 01.02.2010, the complainant took the vehicle to the service centre of the opposite party- appellant, the authorised dealer. The complainant was asked to leave his vehicle for some time at the service centre and the complainant was informed that when the service would be done, he would be intimated. Thereafter the complainant lodged his complaint with the opposite party vide letter dated 14.02.2010. On 20.02.2010, the complainant received an e-mail from the opposite party, whereby the complainant was informed that the vehicle has been attended and the complainant was asked to take delivery of the vehicle. On 26.02.2010, the complainant received another e-mail from the opposite party wherein it was mentioned that the Engine Control Unit of the vehicle was found tampered and the complainant was directed to deposit sum of Rs. 31,910/-. The complainant has alleged that the opposite party is unnecessarily harassing him. On 25.03.2010, the complainant issued a notice to the opposite party through his counsel and thereafter filed a consumer complaint before the District Forum, Nainital. 3. The District Forum issued notice to the opposite party- appellant, which was served upon the appellant, but none appeared on behalf of the appellant before the District Forum and the District Forum vide order dated 14.09.2010 proceeded the consumer complaint ex-parte against the appellant and decided the same vide impugned order dated 28.09.2010 in the above terms. Aggrieved by the said order, the appellant has filed this appeal. 4. Learned counsel for the appellant submitted that the appellant moved an application before the District Forum on 27.09.2010 for setting aside the order dated 14.09.2010. Aggrieved by the said order, the appellant has filed this appeal. 4. Learned counsel for the appellant submitted that the appellant moved an application before the District Forum on 27.09.2010 for setting aside the order dated 14.09.2010. In the said application, it was stated that on 14.09.2010, the counsel for the opposite party- appellant could not attend the Forum in time as he was held up on the way from Haldwani to Nainital due to heavy rains and landslide and when he reached the Forum, he came to know that the case has been proceeded ex-parte against the opposite party. On 27.09.2010, the District Forum passed the following order on the application of the opposite party: Þ;g ifjokn foi{kh ds izkFkZuk i= dkxt la- 12 ij izLrqr gqvkA foi{kh }kjk izkFkZuk i= dkxt la- 12 esa foi{kh us mlds fo#) bl ifjokn dh dk;Zokgh ,di{kh; :i ls pyus ds vkns'k fnukad 14-09-2010 dks fujLr fd;s tkus dh izkFkZuk dh x;h gSA foi{kh us vius izkFkZuk i= ds leFkZu esa ,d 'kiFk i= dkxt la- 12@2 Hkh izLrqr fd;k gSA geus izkFkZuk i= dkxt la- 12 ij cgl lquhA orZeku ekeys esa fu.kZ; fy[kk;k tk pqdk gSA bl ifjfLFkfr esa bl izkFkZuk i= esa dksbZ cy ugha ikrs gSaA izkFkZuk i= dkxt la- 12 fujLr fd;k tkrk gSA ifjokn fu;r frfFk dks fu.kZ; gsrq is'k gksÞ 5. Heard learned counsel for the parties and perused the record. It appears from the impugned judgment and order that before the District Forum, the consumer complaint proceeded ex-parte against the appellant. The appellant could not file written statement before the District forum against the consumer complaint filed by the complainant. It is a settled principle of law that all the parties involved in the matter in question should get proper opportunity of being heard. 6. We have noticed that the appellant could not file written statement before the District Forum and the District Forum did not give opportunity to the appellant for adducing evidence on affidavit and disposed of the consumer complaint merely on the basis of the pleadings of the complainant only, which is contrary to the principle of natural justice. The Hon'ble Apex Court in the case of Topline Shoes Ltd. Vs. The Hon'ble Apex Court in the case of Topline Shoes Ltd. Vs. Corporation Bank; II (2002) CPJ 7(SC), has observed that "it is for the Forum or the Commission to consider all facts and circumstances along with the provisions of the Act providing time frame to file reply, as a guideline, and then to exercise its discretion as best it may serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind the principle ornatural justice as well." 7. In view of the Hon'ble Apex Court's decision, we are unable to sustain the order passed by the District Forum and set aside the same. 8. The Hon'ble National Commission in the case of Mathura Mahto Mistry Vs. Bindeshwar Jha (Dr.) and another; I (2008) CPJ 109 (NC), has held that disposing of the complaint simply on pleadings without directing the parties to file evidence by way of affidavits is illegal on the face of it. The Hon'ble National Commission in the aforesaid judgment has also held that "moreover without adducing evidence, both the parties obviously did not get an opportunity to prove their respective case, in view of which, we are unable to sustain the order passed by the District Forum, which is set aside and the case is remanded back to the Forum below to give an opportunity to both the parties to lead evidence by way of affidavits and also permit cross-examination through questionnaire and reply and only after completion of all the necessary procedure as per law, the District Forum shall hear the case on merit and dispose it of preferably within a period of three months from the date of receipt of this order." 9. Thus, we feel it just and proper to remand with law. The appellant shall file the written statement before the District Forum by 01.11.2011 positively and thereafter the District Forum shall afford a reasonable opportunity to the parties to adduce evidence in support of their case. The District Forum shall take all sort of endeavour to decide the consumer complaint as early as possible and preferably within a period of three months from the date of this order. 10. With the aforesaid observations, the appeal is allowed. The District Forum shall take all sort of endeavour to decide the consumer complaint as early as possible and preferably within a period of three months from the date of this order. 10. With the aforesaid observations, the appeal is allowed. Impugned judgment and order dated 28.09.2010 passed by the District Forum is set aside and the case is remanded back to the District Forum for decision afresh in accordance with law. The appellant is directed to file the written statement before the District Forum by 01.11.2011 positively and thereafter the District Forum shall grant reasonable opportunity to the parties to adduce evidence in support of their case. The District Forum is further directed to decide the consumer complaint expeditiously and preferably within a period of three months from the date of this order. It is made clear that the District Forum shall not grant any adjournment to the appellant seeking time for filing the written statement. Copy of the order be sent to the District Forum, Nainital immediately. No order as to costs.