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2017 DIGILAW 654 (HP)

Ravi Bhardwaj v. Jia Lal

2017-06-12

MEENA VERMA, P.S.RANA, VIJAY PAL KHACHI

body2017
ORDER P.S. Rana (R), President. - Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 11.11.2016 passed by Learned District Forum in consumer complaint No. 243/2015 title Jia Lal v. Ravi Bhardwaj & Anr . Brief facts of Case: 2. Complainant Jia Lal filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is agriculturist by profession and opposite party No. 1 is advocate at Shimla. It is pleaded that complainant along-with Shri Kailash Sharma met opposite party No. 1 at Mall Road Shimla and discussed with him his case pertaining to divorce with wife of complainant and also discussed case relating to custody of daughter of complainant. It is pleaded that opposite party No. 1 settled the legal fees to the tune of Rs. 45000/- (Forty five thousand) for both the cases. It is pleaded that on dated 13.02.2015 complainant signed POA and also paid Rs. 5000/- (Five thousand) in cash to opposite party No. 1. It is pleaded that opposite party No. 1 intimated to the complainant 28.02.2015 as date in the court. It is pleaded that amount of Rs. 4000/- (Four thousand) by way of cash was paid to opposite party No. 1 and date of court was intimated as 31.03.2015. It is pleaded that thereafter opposite party No. 1 conveyed the next date as 14.06.2015. It is pleaded that complainant also deposited a sum of Rs. 15000/- (Fifteen thousand) in the name of Ramelu Ram allegedly senior of opposite party No. 1 in his account No. 20151785611 at SBI Branch Chamba on dated 20.02.2015 and 16.04.2015 respectively vide annexures C-1 & C-2 placed on record. It is pleaded that opposite parties did not file any case and thereafter complainant filed written complaint before SP Shimla. It is pleaded that opposite party No. 2 in police station on dated 09.09.2015 paid Rs. 2000/- (Two thousand) to complainant in front of I.O. It is pleaded that opposite parties did not pay the balance amount of Rs. 18400/- (Eighteen thousand four hundred). It is pleaded that opposite parties have committed deficiency in service. Complainant sought relief for payment of Rs. 18400/- (Eighteen thousand four hundred) along-with interest @12% per annum w.e.f. 16.04.2015 till realization. In addition complainant also sought relief of Rs. 5000/- (Five thousand) as mental agony and costs of litigation. 3. 18400/- (Eighteen thousand four hundred). It is pleaded that opposite parties have committed deficiency in service. Complainant sought relief for payment of Rs. 18400/- (Eighteen thousand four hundred) along-with interest @12% per annum w.e.f. 16.04.2015 till realization. In addition complainant also sought relief of Rs. 5000/- (Five thousand) as mental agony and costs of litigation. 3. Version not filed by opposite party No. 1 Shri Ravi Bhardwaj. Version filed by opposite party No. 2 Shri Ramelu Ram. It is pleaded that complainant is not a consumer. It is pleaded that complainant should file civil suit for recovery of amount due. It is pleaded that opposite parties drafted case of complainant for filing in the court but complainant did not approach to sign his petition. It is pleaded that complainant did not sign POA and did not pay a single penny in relation to case to the opposite parties. It is pleaded that co-opposite party No. 2 returned Rs. 2000/- (Two thousand) to complainant along-with documents in front of I.O. Prayer for dismissal of complaint sought. 4. Complainant filed rejoinder and reasserted the allegations mentioned in complaint. 5. On dated 26.05.2016 none appeared on behalf of opposite parties before learned District Forum and learned District Forum proceeded ex-parte against opposite parties. Learned District Forum allowed the complaint and directed opposite party No. 1 to refund a sum of Rs. 18400/- (Eighteen thousand four hundred) along-with interest @9% per annum from the date of filing of complaint till realization to the complainant. Learned District Forum further ordered that opposite party No. 1 would pay punitive damages to the tune of Rs. 5000/- (Five thousand) to the complainant in lieu of deficiency in service and mental agony. Learned District Forum further ordered that opposite party No. 1 will also pay litigation costs to the tune of Rs. 2000/- (Two thousand) to the complainant. Feeling aggrieved against order passed by Learned District Forum Shri Ravi Bhardwaj filed present appeal before State Commission. 6. We have heard learned advocate appearing on behalf of appellant and we have also heard respondent who appeared in person and we have also perused entire record carefully. 7. Following points arises for determination in present appeal. 1. Feeling aggrieved against order passed by Learned District Forum Shri Ravi Bhardwaj filed present appeal before State Commission. 6. We have heard learned advocate appearing on behalf of appellant and we have also heard respondent who appeared in person and we have also perused entire record carefully. 7. Following points arises for determination in present appeal. 1. Whether learned District Forum committed material procedural irregularity by way of treating complaint (Pleadings) filed by complainant as evidence under section 13(4) of Consumer Protection Act 1986 for adjudication of consumer disputes inter se parties under Consumer Protection Act 1986. 2. Final order. Findings upon point No. 1 with reasons: 8. After perusal of complaint and version filed by opposite party No. 2 learned District Forum came to the conclusion that opposite parties have denied and disputed the allegations contained in complaint and thereafter learned District Forum ordered the parties to adduce evidence. Thereafter complainant Jai Lal had given statement before learned District Forum on dated 25.04.2016 that his complaint along-with documents annexure C-1 to C-3 be treated as evidence and closed the evidence. 9. It is held that complaint and versions filed by the parties are pleadings of the parties and cannot be treated as evidence of parties under section 13(4) of Consumer Protection Act 1986 for adjudication of consumer disputes inter se parties. It is held that pleadings of parties and evidence of parties are entirely two different concepts under law. It is held that as per section 13 (4) of Consumer Protection Act 1986 evidence in consumer disputes can be filed as per modes mentioned in section 13(4) of Consumer Protection Act 1986. section 13(4) of Consumer Protection Act 1986 is quoted in toto:- (4) For the purposes of this section District Forum shall have same powers as are vested in a civil court under Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters namely:- (i) Summoning and enforcing the attendance of any defendant or witness and examining the witness on oath. (ii) Discovery and production of any document or other material object producible as evidence. (iii) Reception of evidence on affidavits. (iv) Requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source. (v) Issuing of any commission for the examination of any witness. (ii) Discovery and production of any document or other material object producible as evidence. (iii) Reception of evidence on affidavits. (iv) Requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source. (v) Issuing of any commission for the examination of any witness. (vi) Any other matter which may be prescribed. 10. It is held that complaint is defined under section 2(c) of Consumer Protection Act 1986 as allegation in writing made by complainant. It is held that complaint is only allegation in writing made by complainant and could not be treated as evidence of complainant under section 13(4) of Consumer Protection Act 1986 for adjudication of consumer disputes. 11. It is held that learned District Forum has committed material procedural irregularity by way of admitting the complaint i.e. pleadings as evidence of complainant under section 13(4) of Consumer Protection Act 1986 for adjudicating consumer disputes of parties. It is held that it is not expedient in the ends of justice to dispose of appeal on merits unless material procedural irregularity is not rectified. Point No. 1 is answered accordingly. Point No. 2: Final Order 12. In view of findings upon point No. 1 above appeal is allowed and order of learned District Forum dated 11.11.2016 announced in consumer complaint No. 243/2015 title Jia Lal v. Ravi Bhardwaj & Anr. is set aside. Complaint is remanded back to learned District Forum with order to receive the evidence of complainant by way of affidavits relating to controversial facts strictly as per section 13(4) of Consumer Protection Act 1986. It is further ordered that opposite parties will also acquire the right to file rebuttal evidence by way of affidavits strictly as per section 13(4) of Consumer Protection Act 1986. It is further ordered that after receiving evidence of parties learned District Forum will decide complaint afresh strictly in accordance with law. Learned District Forum will dispose of complaint expeditiously within 30 days after receipt of file. Parties are directed to appear before learned District Forum Shimla on 27.06.2017. Observations will not effect the merits of the case in any manner. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum along-with certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Observations will not effect the merits of the case in any manner. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum along-with certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.