UTPAL KUMAR BHATTACHARYA, MEMBER 

            This is an Appeal u/s 15 of the C.P. Act, 1986 filed by the Appellant/OP -1 challenging the judgment and order dt. 16.09.2016 passed by the Ld. District Forum, Murshidabad in complaint case No. CC/162/2015 allowing the complaint ex parte against the OPs with the directions as under .

            “    Hence it is ordered that the complaint be and the same is allowed ex-parte with no order as to cost.

            The OP No. 1 & 2 is directed to normalize the gas supply of the complainant, within 20 days from the date of receiving this order. They are also directed to pay a sum of Rs. 4000/- jointly and /or severally to this complainant as compensation for harassment and mental agony within 45 days from the date of receiving this order.

            The OP No.1 is also directed to deposit a sum of 5000/- in the consumer legal aid account for unfair trade practice within 45 days from the date of receiving this order.

            At the event of failure to comply with the order the Opposite Party shall pay cost @ Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.”

            The facts of the complaint , in a nutshell, were that the Respondent / Complainant , being a consumer of Appellant/OP No. 1 and OP No. 2, did not have supply of Gas Cylinders from the Appellant/OP No.1 even after booking for the same was properly done.

            Besides above , as alleged, the person working on behalf of the Appellant/OP No. 1 for door to door delivery of the cylinders used to charge from him extra amount for his job .

            The protest of the Respondent/Complainant towards such improper activities were not heeded to by the Appellant/OP No.1 who, in reply,  told that the Appellant/OP No.1 , because of its not having a steady supply of gas Cylinders from the OP No. 2 , the distributor , would not be able to ensure supply of more than 4 cylinders a year.

            The complaint lodged by the Respondent/Complainant before the OP No.2 against the aforementioned unlawful trade being practiced upon him by the Appellant/OP No.1 could not bring the ongoing impasse to an end as no action against his own dealer was found forthcoming from the said OP No.2. Contrarily, the Appellant/OP No.1. threatened the Respondent/Complainant of absolute stoppage of supply and cancellation of his consumership if the complaint lodged with the OP No.2 was not immediately withdrawn.

            The aggrieved Respondent/Complainant, not finding any alternative way to get his grievances addressed, filed the complaint before the Ld. District Forum which led to the passing of the impugned judgment and order.

            Heard Ld. Advocates appearing on behalf of both sides.

The Ld. Advocate appearing on behalf of the Appellant/OP No.1 submitted that the impugned judgment and order was passed by the Ld. District Forum on an ex-parte hearing against the OP. Therefore, the OPs did not get any opportunity to place their submission . As continued , the Ld. Advocate appointed by the Appellant/OP No.1 did not effectively pursue the proceedings which led the Appellant/OP No.1 un represented before the Ld. District Forum on certain occasions and Ld. District Forum , without appreciating the fact that the Appellant/OP No.1 was not at fault for his non-participation in the hearing, passed an arbitrary order of ex-parte hearing of the case.

            The Ld. Advocate furnished before the Bench certain orders of the Hon’ble High Court, Calcutta , where Hon’ble High Court , Calcutta was pleased to adopt a lenient  view towards admission of the cases filed beyond the statutory period of limitation.

            The Ld. Advocate appearing on behalf of the Respondent/Complainant, contrary to the above arguments , submitted that non-representation on behalf of the Appellant/OP No.1 on two successive dates of hearing led the Ld. District Forum to pass an order of ex-parte hearing of the case. As submitted further, the Ld. District Forum had rightly passed the order without being indulgent in glaring indifference of the Appellant/OP No.1 through its absence on successive dates of hearing.

            Further, as the Ld. Advocate continued, the Appellant/OP No.1 had resorted to an untenable plea of attributing his own lapse of absenting himself on successive hearing upon the Ld. Advocate participating  on his behalf.  The record, however, as contended , was not revealing about the failure of the said conducting Advocate of the Appellant/OP No.1 inspite of constant liaison being maintained with him, as claimed in the petition and as argued on behalf of the Appellant /OP No.1.

            As contended further, there cannot be any reason for setting aside any order passed on an ex-parte hearing for a right reason . With the submission , the Ld. Advocate prayed for the appeal to be dismissed affirming the impugned judgment and order .

            Perused the papers on record. Considered submissions of both sides. The case was not dismissed by the Ld. District Forum on any technical reason. Disposal of any case on an ex-parte hearing does not mean that the merit of the case is not considered .

            It revealed that the OP No.2 appeared before the Ld. District Forum and prayed for filing the W.V. but ultimately preferred not to participate in the proceedings . As regards Appellant/OP No.1, the impugned order was clear about his non-turning up on the dates of hearing in spite of notices being duly served upon it. The reason for passing an order for ex-parte hearing seems to be not unjustified in view of the above.

            The charges of deficiencies in rendering services , since remained uncontroverted , amounted admission of the same. Therefore, we find reasons for the impugned order to remain un-interfered with from our end to the extent of payment of compensation only. We , however, don’t agree with the amount ordered for depositing with the consumer legal aid account by the Appellant/OP No.1 alone for the unfair trade practice and are inclined to get the amount considerably reduced since it appears to have been assessed at a higher side.

            We also do not agree with the cost of Rs. 50 /-for each day’s delay imposed in case of non-compliance of the order within the given dead line.

            The impugned order , as it is felt , needs to be modified  in the given circumstances.

            Hence,                                  

                                                            Ordered

That the Appeal be and the same is allowed in part without any costs. The Appellant/OP NO. 1 and OP No. 2 are directed to ensure supply of gas cylinders in a regular manner to the Respondent /Complainant hence forward .

            The Appellant/OP No.1 and OP No. 2 are directed further to pay jointly and severally an amount of compensation of Rs. 4,000/- to the Respondent/Complainant for harassment and mental agony that the Respondent/Complainant had to sustain because of their deficiency in rendering services.

            The Appellant/OP No.1 and OP No.2 are further directed to pay an amount of Rs. 1,000/- to the Consumer Legal Aid Account for adopting unfair trade practice .

            The above amounts are to be paid within 45 days from the date of this order, failing which , simple interest @ 9% p.a. shall accrue to the  total amount of Rs. 5,000/- from the date of default till the amount is fully realized.

            The other directions in the impugned order stand set aside.

            The instant appellate order shall mutatis mutandis apply to appeals under numbers  A/797/16, A/798/16, A/799/16, A/800/16, A/801/16, A/802/16, A/803/16, A/805/16, A/806/16 and A/807/16.  Those appeals will also stand allowed in part similarly on the same grounds and copies of the judgment of this complaint will be placed on record of these Appeal cases too.