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2012 DIGILAW 273 (JK)

HDFC Bank Ltd. v. Meena Vaid

2012-05-18

Mansoor Ahmad Mir, MUZAFFAR HUSSAIN ATTAR

body2012
Per Mansoor, J. (Oral) 1. By the medium of this appeal, the appellant has invoked the jurisdiction of this Court in terms of section 17 of the J&K Consumer Protection Act, 1987 (for short, Act) and has questioned the order dated 16.12.2008 passed by the State Consumer Disputes Redressal Commission, Jammu (for short, State Commission), made in complaint No. 2908/2007, titled as, Meena Vaid v. Branch Manager, HDFC Bank, whereby the appellant-Bank has been directed to reimburse a sum of Rs. 2,92,000/- along with interest @ 8% to the complaint-respondent herein, and her son from 05.11.2006 till final payment is made as also to indemnify them for the insurance cover of Rs. 3.00 lacs, (for short, impugned order), on the grounds taken in the memo of appeal. 2. Complainant-respondent herein filed a complaint against the appellant-Bank before the State Commission on 31.07.2007 in terms of section 15 of the Act on the grounds taken in the memo of complaint. Notice was issued to the appellant-Bank and file was posted for 03.09.2007. The complaint came up on 03.09.2007 and also on subsequent dates till 16.12.2008 when the impugned order came to be made at the back of appellant-Bank. The State Commission has not recorded in any of the zimni order that notice was ever served upon the appellant-Bank and has not recorded its satisfaction to the same effect 3. In terms of mandate of section 16 of the Act, procedure specified in sections 10, 11 and 12 is to be followed. In the instant case section 11(2) of the Act was applicable. It is profitable to reproduce section 16 and section 11(2) of the Act herein: "16. Procedure applicable to State Commission The procedure specified in sections 10, 11 and 12 and under the rules made thereunder for the disposal of complaints by the Divisional Forum shall, with such modifications as may be necessary, be applicable to the disposal of disputes by the State Commission." "11. Procedure on receipt of complaint (1)................. Procedure applicable to State Commission The procedure specified in sections 10, 11 and 12 and under the rules made thereunder for the disposal of complaints by the Divisional Forum shall, with such modifications as may be necessary, be applicable to the disposal of disputes by the State Commission." "11. Procedure on receipt of complaint (1)................. (2) The Divisional Forum shall, if the complaint received by it under section 10 relates to goods in respect of which the procedure specified in sub-section (1) 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 Divisional Forum; (b) Where 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 Divisional Forum, the Divisional Forum shall proceed to settle the consumer disputes,- (i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or (ii) 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 Forum." 4. In terms of the said section, a copy of the complaint was to be sent/referred to the opposite party-appellant herein and, thereafter, the Commission had to record its findings that despite following the mandate of section 11(2)(a), opposite party-appellant herein has failed to appear and contest the complaint. 5. Copy of notice on the file discloses that a copy of revision petition was sent to the appellant-opposite party and not copy of the complaint. It is apt to reproduce the relevant portion of the said notice herein. "Whereas a revision petition has been filed against you by Meena Vaid. You are hereby informed to submit your objection within a period of 30 days from the date of receipt of this notice. You are further informed that the next date fixed is 03.9.2007." 6. It is apt to reproduce the relevant portion of the said notice herein. "Whereas a revision petition has been filed against you by Meena Vaid. You are hereby informed to submit your objection within a period of 30 days from the date of receipt of this notice. You are further informed that the next date fixed is 03.9.2007." 6. The appellant-Bank has specifically averred in limitation petition no. 20/2010 as well as in the appeal that neither any notice was issued to the appellant-Bank nor copy of the complaint was sent to it, which is also supported by the record, as discussed hereinabove. 7. Having glance of the above discussion, one comes to an inescapable conclusion that the impugned order came to be passed without following the due procedure and at the back of the appellant. 8. In the given circumstances, this appeal is allowed, impugned order is set aside and the complaint is remanded back to the State Commission for its disposal under law. 9. Parties are directed to cause their appearance before the State Commission on 1st June 2012. State Commission to dispose of the complaint within a period of four weeks from 01.06.2012. 10. Registry is directed to send back the record along with a copy of this order. 11. Disposed of along with all CMPs.