BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD.
FA No. 619 OF 2014 AGAINST CC No.628 OF 2012
ON THE FILE OF DISTRICT FORUM-II HYDERABAD
Between :
THE MANAGER,
Reliance Digital Retail Ltd.,
Maram Satish Central,
H.No.16-10-27/105/1 to 7 and 106/1,
Municipal Colony Main Road,
Malakpet, Hyderabad – 500036. …Appellant / O.P.No.1
AND :
- Smt. V.Sujatha,
W/o. Sri M.Ramgopal Reddy,
Aged 40 years, Occ: Service,
H.No.3-14-197, Vijayanagar Colony,
Near Sahara State Mansoorabad,
L.B.Nagar, Hyderabad- 500068. …Respondent / Complainant
- The Manager,
Bajaj finance Ltd.,
4th Floor, Bajaj Fineserv Corporate Office,
Off Pune-Ahmednagar Road,
Viman Nagar, Pune-411014.
- The Manager,
4th Floor, Bajaj Fineserv Corporate Office,
Off Pune-Ahmednagar Road,
Viman Nagar, Pune-411014. …Respondents / O.P.nos.2 & 3
Counsel for the Appellant : Sri Vamaraju Sri Krishnudu
Counsel for the Respondent : Sri K.Visweswara Rao, R1
No representation for R2 & 3
Hon’ble Sri Justice B.N.Rao Nalla … President
&
Sri Patil Vithal Rao … Member
Friday, the Eleventh day of November
Two thousand Sixteen
Oral Order : (Per Hon’ble Sri. Patil Vithal Rao, Member).
***
This appeal is directed against the order dated 28.03.2014 in C.C.No.628/2012 passed by the District Consumer Forum-II, Hyderabad (for short, “District Forum”). For the sake of convenience the parties will be referred to hereinafter as arrayed before the District Forum.
2. The complainant has filed C.C.no.628/2012 contending, in brief, that she obtained a financial assistance of Rs.62,333-33 ps., from the opposite party no.2 and purchased LG-42TV from the opposite party no.1, dealer for a sum of Rs.74,999-55 ps., on 20.08.2011 and that on the insistence of the opposite party no.2 took a Group Personal Health Insurance from the opposite party no.3 with EMI of Rs.3,220/- for a period of 20 months. The grievance of the complainant is that the opposite party no.1 delivered the TV with a model different than the model desired by her as per the invoice and that the opposite party nos.2 & 3 did not give original policy certificate of insurance having compelled her to take the policy and also charged ECS (Electronic Clearing Services) every time at the rate of Rs.100/- on the premium amount illegally for which though she got issued legal notice, there was no response from the opposite parties.
3. The opposite party no.1, though had engaged an Advocate, did not choose to file written version and that as such it was set exparte by the District Forum.
4. However, the opposite party no.2 & 3 contested the case by filing written version on the grounds, interalia, that the complainant took the policy from Bajaj Allianz General Insurance Co., Ltd., voluntarily and that the policy document was already sent to her on 28.09.2011 through courier covering the risk from 27.08.2011 itself and that there was no any deficiency in service on their part.
5. The learned District Forum, by the impugned order, directed the opposite party no.1 to deliver the TV of the model as per the invoice to the complainant and that if the same is not available, to pay cost of the TV with a compensation of Rs.2,000/- and costs of Rs.1,000/-. Further, the opposite party no.2 & 3 were directed to pay Rs.2,054/- towards the insurance premium collected from the complainant with interest @ 6% p.a. and also Rs.1,000/- towards compensation.
6. Aggrieved by the above said order the opposite party no.1 has filed the present appeal on the grounds, in brief, that it was set exparte for non filing of written version in C.C.no.628/2012 and that it was under the impression that the written version which was filed already, was taken on record. Subsequently, the petition filed by the opposite party no.1 was dismissed by the District Forum on 14.03.2014 and on the same day the case was reserved for orders without giving opportunity to contest it. Infact, the complainant did not object about the alleged delivery of T.V. with a wrong model at the time of taking its delivery and that she has been using the same without any complaint but issued a legal notice after a long time of 6 months 24 days from the date of purchase of the TV. Her only grievance is of non receipt of the insurance policy but not regarding performance of the T.V. The complainant is infact not a consumer under the Consumer Protection Act, 1986 and that the District Forum had no jurisdiction to entertain the complaint. Thus, as per the appellant, several issues of the facts are involved in the matter which can be decided only after full-fledged enquiry. The impugned order has been passed only on assumption and presumption without considering the true facts. For all these reasons the appellant has prayed to set aside the same by allowing the present appeal and remand the matter to the District Forum for fresh disposal.
7. During the pendency of the appeal, learned counsel for the respondent has filed a memo stating that the order of the District Forum, under appeal, was complied with by the respondent nos.2 & 3 herein and that as such she has no further claim against them.
8. Heard both the learned counsel for the appellant and the respondent no.1 and also perused their respective written arguments.
9. Now the point for consideration is that:-
Whether the appeal is fit to be allowed as prayed for?
10. Point:- It is evident from the record that despite several adjournments, the opposite party no.1 has failed to file written version in the case, though engaged an advocate to defend it. Therefore, the District Forum was constrained to forfeit the right of opposite party no.1 to file written version and set it exparte and proceeded with the case on receipt of the written version of the opposite party no.2 & 3. Thereafter, I.A.no.121/2013 was filed by the opposite party no.1 to set aside the said order and it was allowed by the order dated 08.10.2013 by the District Forum on cost of Rs.1,000/- payable by 05.11.2013. But, as the opposite party no.1 did not comply with the said conditional order, I.A.no.121/2013 was dismissed on 05.11.2013. Thereafter, the opposite party no.1 has again filed I.A.no.6/2014 for the same relief and that the learned District Forum by the order dated 14.03.2014 dismissed it on the ground that it has no power to review or revise the order passed by it in earlier petitions, by relying on the order dated 29.07.2013 passed by this Commission in C.C.I.A.no.1486/2013 in C.C..no.33/2013. It is a fact that the District Forum has no power to review or revise it’s own orders under the provisions of the Consumer Protection Act, 1986. Therefore, we do not find any fault in the said order of the District Forum.
11. The appellant has preferred this appeal against the order dated 28.03.2014 passed by the District Forum in the main case in C.C.no.628/2012. As per the record, the impugned order was passed without participation of opposite party no.1 in the proceedings. It is a fact that the opposite party no.1 has filed it’s written version, evidence affidavit and also written arguments in C.C.no.628/2012. It has been contended by the opposite party no.1 in the present appeal that it’s advocate was under the bonafide impression that the written version, which was filed along with I.A.no.121/2013 on 17.04.2013, was already taken on record by setting aside the earlier order dated 26.03.2013 with regard to forfeiture of its right to file the written version and that the case was posted for complainant’s evidence and that when opposite party no.1 tried to file it’s evidence affidavit on 10.12.2013, its counsel came to know about the conditional order dated 08.10.2013 passed in I.A.no.121/2013 and that as the said condition was not complied with, the said petition was dismissed on 05.11.2013. It has been further contended that the opposite party no.1 has filed it’s evidence affidavit and also written arguments with a willingness to pay the costs but the same was dismissed on 14.03.2014 by reserving the case for orders and that thereafter on 28.03.2014 the orders, now impugned, were passed. Be that as it may the fact remains that the orders under appeal are exparte against the opposite party no.1. It has been observed by the learned District Forum in the impugned order while dealing with point nos.1 & 2, that the opposite party no.1 did not rebut the allegation of the complainant that the T.V was not delivered to her as per the invoice, by way of filing written version or any other documents. The specific defense of the opposite party no.1, as set up in the present appeal, is that the complainant kept quiet for quite long time after taking delivery of the T.V. without complaining anything about it’s performance but issued a legal notice making allegations mainly against opposite party nos.2 & 3 and that the opposite party no.1 has infact delivered the T.V as ordered by the complainant and that the impugned order was passed by the District Forum without jurisdiction basing on assumption and presumption. Having regard to the facts and circumstances, we are of the opinion that the opposite party no.1 deserves an opportunity to defend it’s case before the District Forum but as it has exhibited it’s sheer negligence in complying with the conditional order which was passed in I.A.No.121/2013, in the case, it has to be saddled with adequate costs of Rs.5,000/-, for the inconvenience and hardship being faced by the complainant in defending the present appeal, to meet the ends of justice. It is needless to say that the complainant is also entitled for the cost of Rs.1,000/- awarded by the District Forum by the order dated 08.10.2013 in I.A.no.121/2013 in C.C. no.628/2012. With these observations the appeal has to be allowed.
12. The point is answered accordingly.
13. The memo dated 27.10.2016, referred supra in para no.7, filed by the respondent no.1 in the present appeal is hereby recorded by closing her claim against the respondent no.2 & 3.
14. In the result, the appeal is allowed by setting aside the impugned order and the matter is remanded back to the District Forum for denovo enquiry and disposal in accordance with law with regard to the dispute between the complainant and opposite party no.1, with costs of Rs.5,000/-, payable to the complainant by the opposite party no.1 within 4 weeks from the date of receipt of a copy of this order.
PRESIDENT MEMBER
Dt. 11.11.2016
