Tripura

StateCommission

F.A 15/2014

Sri Umesh Ch saha - Complainant(s)

Versus

Ashok Leyland Ltd & 3 others. - Opp.Party(s)

P.Saha.B.Majumder,S.S Dutta

06 Apr 2015

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

 

APPEAL CASE No.F.A-15/2014

 

Sri Umesh Ch. Saha

S/O. Rakhal Ch. Saha

Of Village Nutannagar

P.S-Airport, District-West Tripura.

                         ….    ….    ….    ….    Appellant.

                         Vs

1. ASHOK LEYLAND FINANCE LTD.

(Represented by its Managing Director)

2. ASHOK LEYLAND FINANCE LTD.

Branch Office at Durgabari Road,

Agartala, West Tripura, At present-

1, Mantribari Road, Agartala, P.S-West Agartala,

District-West Tripura.

3. RAJARSHI MOTORS(P) LTD.

Assam Agartala Road, Office at Chandrapur,

P.S-East Agartala, Authorised Dealer of TATA

Engineering (Represented by its Manager)

                       ….    ….    ….    ….    Respondents.

 

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

               

 

For the Appellant : Mr.P. Saha,Adv. , Mr.B.Majumder,Adv. & Mr.S.S.Datta,Adv.

  For the respondents : Mr.D.Sharma, Mr.A.K.Bhowmik,Sr.Adv. & Mr.R.Datta,Adv.

                                         

Date of Hearing         :     06.04.2015.

Date of delivery of Judgment  : 22.04.2015.

J U D G M E N T

S.Baidya,J,

            This appeal filed on 26.06.2014 by the appellant-Umesh Chandra Saha under Section 15 of the Consumer Protection Act., 1986 is directed against the order dated 28.05.2014 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-12 of 2011 whereby the Ld. District Forum dismissed the said proceeding on the ground of non-prosecution from the side of the complainant.      

2. The case of the appellant-complainant as narrated in the memo of appeal, in brief, is that the appellant being the complainant instituted a complaint under Section 12 of the C.P.Act,1986 against the respondent-O.Ps claiming an amount of Rs.10,36,000/-  as compensation for deficiency in service along with an application under Section 24A of the C.P.Act for condoning the delay of 349 days in presenting the said complaint petition.                                               
3. It has also been stated that the respondent No-1 and 2 herein being the O.Ps. contested the condonation application by filing a written objection and the Ld. Forum after hearing the parties, allowed the condonation application and condoned the delay of 349 days by passing an order dated 27.05.2013.
4. It has also been stated that against the said order dated 27.05.2013 the respondent No-1 and 2 preferred an appeal before this State Commission which has been converted to a revision petition subsequently. It has also been stated that after hearing the learned counsels of both sides, this Commission dismissed the said revision petition and the record of case No.C.C. 12/2011 was sent back to the Ld. District Forum for proceeding with the complaint case according to law.
5. It has also been stated that thereafter the complaint petition vide case No.C.C.12/2011 was proceeded to the next stage of trial and accordingly, all the concerned parties were informed by the Ld. Forum and on 28.05.2014 the said proceeding was fixed for appearance, but none of the parties was present to take any step in the said proceeding and accordingly, the Ld. Forum dismissed the said proceeding for non-prosecution.
6. It has also been alleged that on 13.05.2014 the said proceeding was taken up by put up before the Ld. Forum on receipt of the order disposing the revision petition wherein the order was recorded that the next date was fixed for filing of written objection by the O.Ps and the said order was also directed to inform the learned counsel of the O.Ps i.e. the respondents herein, although no particular date has been mentioned in that order.             
7.  That being aggrieved by and dissatisfied with the impugned order dated 28.05.2014, the appellant-complainant  has preferred the instant appeal on the grounds that the dismissal order dated 28.05.2014 shows that on earlier occasion the next date was fixed on 28.05.2014 for filing of written objection by the O.Ps and the parties did not turn up on 28.05.2014 for conducting the proceeding, although the order dated 13.05.2014 did not speak of the next date i.e. 28.05.2014 and in that case, how the learned counsel for the appellant would know and appear to conduct the proceeding, that the Ld. Forum has not been satisfied before passing the impugned order that originally 28.05.2014 was fixed for filing the written objection and not for hearing the case and when neither of the parties appeared on 28.05.2014, in that case, the Ld. Forum should provide another opportunity to the complainant to appear for proceeding with the complaint case, but the Ld. Forum dismissed the complaint case on the ground of non-prosecution, that the order impugned was passed without considering the merit of the case and also without application of judicial mind and as such, it is not sustainable being violative of natural justice and therefore, is liable to be set aside.           

Points for consideration.

8.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in passing the impugned order dismissed the complaint  and (2) whether the order impugned should be set aside.    

                         Decision with Reasons.

9.  Both the points are taken up together for the sake of convenience and brevity.
10. The learned counsel for the appellant submitted that the order passed by this Commission in R.A 08/2014 preferred by the present respondent No-1 and 2 reached to the Ld. District Forum on 13.05.2014 on which the order dated 13.05.2014 was passed on putting up the record. He also submitted that although the order dated 13.05.2014 was directed for informing the learned counsel for the O.Ps for filing the written objection in the complaint case, but no order to inform the learned counsel for the complainant was passed regarding the receipt of the order passed in revision petition for proceeding with the complaint case. He also submitted that on 28.05.2014 neither the complainant nor the O.Ps were present, although the said order discloses that the Ld. Forum was informed by the dealing assistant that the learned counsel for the parties were duly informed as to the next date of the case as per direction given by the Forum in the order dated 13.05.2014. He also submitted that there is nothing on the record to show that the learned counsel for the complainant was ever informed regarding the next date as mentioned in the impugned order.
11. The learned counsel for the appellant further submitted that on 03.03.2014 the complainant was not present, only the O.P. No-1 and 2 moved an application praying for staying the further proceeding of the case on the ground that the O.P. preferred an appeal before the Hon’ble State Commission against the order condoning the delay. He also submitted that the Ld. District Forum by order dated 13.05.2014 should give a direction to inform the learned counsel for the complainant, but that direction has not been given by the order dated 13.05.2014 and as such, the complainant or his learned counsel could not know the next date i.e. on 28.05.2014. He also submitted that when the direction to inform the learned counsel for the O.Ps was given vide order dated 13.05.2014, the non-giving of any direction to inform the learned counsel for the complainant is found improper and unjustified. He also submitted that when there is an omission in the order dated 13.05.2014 as mentioned above, the impugned order dated 28.05.2014 dismissing the complaint for non-prosecution on account of absence of the complainant should not have been passed and therefore, the impugned order of dismissal of the complaint cannot be sustained from the stand-point of natural justice also and therefore, it is liable to be set aside for providing an opportunity to the complainant to seek his redress in the complaint case and therefore, the appeal should be allowed.  
12. On the other hand, the learned counsel for the respondent No-3 submitted that it is usual practice fallowed by the advocates that after the disposal of any matter pending before any higher Forum, they have to make search in the lower Forum to ascertain as to the next date and accordingly, they got the next date i.e. on 28.05.2014. He also submitted that the complainant is not diligent and sincere to proceed with the complaint case and as such, he remained idle without making any search for the next date of the original case pending before the District Forum. He also submitted that a party who is not diligent and sincere is not entitled to get any remedy even under the law of equity. He also submitted that the complainant knowingfully well allowed his case dismissed for non-prosecution and as such, the impugned order passed by the Ld. District Forum dismissing the complaint being proper, legal and justified should be upheld and the appeal should be dismissed.     
13. The learned counsel for the respondent No-1 and 2 submitted that the complainant intentionally was dragging the case by not taking any proper step and not appearing before the Ld. District Forum regularly. He also submitted that the complainant did not come before this Hon’ble Commission with a clean hand and the appellant himself was at fault and as such, a person at a fault cannot get any justice from any legal Forum. He also submitted that the order has been rightly passed by the Ld. District Forum and therefore, it should be upheld and the appeal should be dismissed.
14. Going through the memo of appeal and the impugned order dated 28.05.2014, we find that the complaint case being C.C.12/2011 was dismissed for non-prosecution. It also appears that on that date neither of the parties was present. Although the learned counsel for the respondents submitted that they came to know the date i.e. 28.05.2014 on searching, but we find no substance in the submission of the learned counsel for the respondents simply on the ground that on the very date i.e. on 28.05.2014 none of the three respondents or any learned counsel on their behalf was present. The order dated 13.05.2014 directed to inform the learned counsel for the O.Ps. The order dated 28.05.2014 discloses that the dealing assistant informed the District Forum that the learned counsel for the parties were duly informed as to the next date of the case. But there is nothing in the record of the Ld. District Forum for establishing that the learned counsels of the parties were actually informed as to the next date of the case.
15. It transpires from the record of the Ld. District Forum that neither the complainant nor his learned counsel was present on 03.03.2014. Not only so, neither of the parties was also present on the previous date i.e. 29.01.2014. In that case, the ends of justice demands that the learned counsel for the complainant or the complainant himself should be informed regarding the next date i.e. on 28.05.2014. The order dated 28.05.2014 makes it clear that the Ld. Forum passed the impugned order presuming that the learned counsels for the parties were duly informed, but in fact, neither the complainant nor his learned counsel was informed. So, it should not be appropriate to say that the parties to the proceeding are not interested to proceed with the case. Considering the facts and circumstances mentioned above, we are of the view that the Ld. Forum passed the impugned order presuming that the learned counsel for the complainant was also duly informed. As the same was not the correct position, so the dismissal of the complaint case by the impugned order on the ground of non-prosecution is found not proper, legal and justified and therefore, it is not sustainable in the eye of law and accordingly, the impugned order is liable to be set aside and the appeal should be allowed for restoring the complaint case.   
16. In the result, the appeal is allowed. The impugned order dated 28.05.2014 passed by the Ld. District Forum in case No.C.C.12/2011 is hereby set aside and the complaint case being C.C.12/2011 be restored to its original file and number. There is no order as to costs.
17. The Ld. District Forum is directed to restore the complaint case and proceed, according to law, with a view to dispose of the case as early as possible without granting any unnecessary adjournment to either of the parties.
18. Let a copy of this judgment along with the record of C.C.12/2011 be sent down to the Ld. District Forum, West Tripura, Agartala forthwith.
19. The Ld. District Forum is further directed to proceed with the complaint case after informing the learned counsels of the parties.

 

                           MEMBER                                             PRESIDENT

                                State Commission                                    State Commission

                                        Tripura                                                      Tripura