STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 388 of 2012 |
Date of Institution | : | 23.11.2012 |
Date of Decision | : | 21.01.2013 |
A.P. Pandey, son of Shri Ambika Prashad Pandey, R/o 1257, Sector 18C, Chandigarh.
……Appellant/complainant
V e r s u s
1. Chief Executive Officer, Tata Sky Limited, P.O. 2424, HERBAL, Bangalore 560024.
2. Vinod Aggarwal, Anil Electronics, Booth No.26, Sector 18-D, Chandigarh, (Authorized Dealer of Tata Sky Limited).
....Respondents/Opposite Parties
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Amitoj Singh Dhaliwal, Advocate for the appellant.
Sh. Gaurav Bhardwaj, Advocate for respondent no.1.
Respondent no.2, exparte.
PER JUSTICE SHAM SUNDER, (RETD.), PRESIDENT
This appeal is directed against the order dated 01.10.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed the Consumer Complaint No.490 of 2012, for non prosecution.
2. The facts, in brief, are that the complainant was a subscriber of supersaver pack of Tata Sky DTH connection, of the Opposite Parties. On 10.07.2012, he opted to upgrade his pack, from supersaver to mega pack, in which all the channels telecast by the Opposite Parties, were included, and, a consumer could view the same. The complainant paid a sum of Rs.380/-, to the Opposite Parties, on 10.07.2012, for up-gradation of the supersaver pack to mega pack, acknowledgment whereof was received by him, via set-up box, as well as SMS. To the utter dejection of the complainant, the said mega pack was not upgraded, despite making the payment aforesaid, by the Opposite Parties. The complainant made numerous calls to the Opposite Parties, on their helpline numbers, but to no avail. The complainant also approached Opposite Party No.2, many a time, and asked him, to redress his grievance, but he (Opposite Party No.2) showed his inability, to help him. It was stated that the aforesaid act of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties to pay compensation, in the sum of Rs. 50,000/-, for mental agony and physical harassment, caused to him (complainant).
3. The complaint was for the first time put up before the District Forum, on 26.09.2012, and on the request of the Counsel for the complainant, the same was adjourned to 01.10.2012, for filing the amended title of the same (complaint), as also for preliminary hearing.
4. On 01.10.2012, the case was called many times, by the District Forum, but neither the complainant, nor any authorized representative, on his behalf, put in appearance, as a result whereof, the complaint was dismissed, for non prosecution.
5. Feeling aggrieved, the instant appeal, was filed by the appellant/complainant.
6. Despite service, neither respondent no.2, in person, nor any authorized representative, on his behalf, put in appearance, as a result whereof, respondent no.2, was proceeded against exparte, by this Commission, vide order dated 17.01.2013.
7. We have heard the Counsel for the appellant, respondent no.1, and have gone through the record of the case, carefully.
8. The Counsel for the appellant/complainant, submitted that, no doubt, none appeared, on behalf of the complainant, when the case, in the District Forum was fixed for 01.10.2012. He further submitted that he could not put in appearance, in the District Forum, at the time, when the case was called, on 01.10.2012, on account of the reason that he (Counsel), had to appear, in an urgent matter, before the Hon`ble Punjab and Haryana High Court. He further submitted that after finishing the arguments, in one of the cases, in the Hon`ble Punjab and Haryana High Court, when he was on way to the District Forum, he was stuck up, in the traffic jam, as a result whereof, he could not reach in time, and the complaint was dismissed, for non prosecution, by it (District Forum). He further submitted that the absence of the complainant or his Counsel, on the date fixed, was neither intentional, nor deliberate, but for the reasons, aforesaid. It was further submitted that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to the appellant/complainant, as, in that event, he would be condemned unheard. He further submitted that, thus, the order of the District Forum, being illegal, is liable to be set aside.
9. On the other hand, the Counsel for respondent no.1, submitted that, no document, has been placed on record, by the Counsel for the appellant/complainant, to prove that he had to appear, in an urgent mater, before the Hon`ble Punjab and Haryana High Court, and, therefore, he could not appear, in time, before the District Forum, on 01.10.2012, the date, when the complaint case was fixed for filing the amended title of the same (complaint), as also for preliminary hearing. He further submitted that the absence of the complainant and his Counsel, on the date fixed, was intentional and deliberate. He further submitted that, the order of the District Forum, being legal, is liable to be upheld.
10. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, and, on going through the record, we are of the considered opinion, that the appeal deserves to be accepted, and the case is liable to be remanded back, for fresh decision, in accordance with law, for the reasons, to be recorded hereinafter. As stated above, the complaint was, for the first time, put up before the District Forum, on 26.09.2012, and, thereafter, it was adjourned to 01.10.2012, on the request of the Counsel for the complainant, simply for filing the amended title of the same (complaint), as also for preliminary hearing. It means that on 01.10.2012, the complaint was, at the initial stage, when the complainant, or his Counsel, did not put in appearance, and it was dismissed for non-prosecution.
11. It is settled principle of law, that every lis should normally be decided, on merits, than by resorting to hyper- technicalities. When the hyper-technicalities, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. Since the complaint was fixed for 01.10.2012, for filing the amended title of the same (complaint), as also for preliminary hearing, the District Forum could adjourn the same for the purpose, to some other date, but it apparently resorted to short cut method by dismissing the same for non-prosecution. No doubt, there was negligence, on the part of the Counsel for the complainant, as it was required of him, to reach the District Forum, in time, when the complaint was called, or in the alternative, he could instruct his Junior Counsel, or the Proxy Counsel, to file the amended title, but he failed to do so. Since, he did not take the requisite measures, referred to above, negligence was attributable to him. It is settled principle of law, that for the negligence or inadvertence of the Counsel, the party should not suffer. In our considered opinion, an opportunity should be afforded to the complainant, to prosecute the complaint, so that the same could be decided, on merits, and the rights of the parties are determined, by one Forum, on merits, one way or the other. The order impugned, thus, suffers from Jurisdictional error. In this view of the matter, the order impugned is liable to be set aside.
12. On account of inadvertence or negligence of the complainant, or his Counsel, delay in the disposal of complaint, on merits, was caused. According to Section 13 (3A) of the Act, every complaint is required to be decided, within three months, from the date of appearance of the Opposite Parties, except the one, in which the goods are required to be sent to the Laboratory for examination. In that event, the complaint is required to be decided, within a period of 5 months, from the date of appearance of the Opposite Parties. The complaint had been admitted on 26.09.2012. A period of more than three months, has already lapsed, much earlier. For causing delay, in the disposal of the complaint, on merits, the appellant is required to be burdened with costs.
13. For the reasons recorded above, the appeal is accepted. The order impugned is set aside. The District Forum is directed to restore the same, to its original number, proceed further, from the stage, at which, it was dismissed for non- prosecution, and decide the same, in accordance with the provisions of the Act. The appellant/complainant is, however, burdened with costs of Rs.1000/-, for causing delay, in the disposal of complaint on merits. Payment of costs shall be a condition precedent. The costs, on payment, shall be deposited with the State Legal Services Authority, U.T. Chandigarh.
14. The appellant/complainant and respondent no.1/their Counsel are directed to appear, before the District Forum (II) on 31.01.2013, at 10.30 A.M., for further proceedings.
15. The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date and time fixed i.e. 31.01.2013, at 10.30 A.M.
16. Certified Copies of this order, be sent to the parties, free of charge.
17. The appeal file be consigned to the Record Room, after due completion.
Pronounced.
January 21, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[NEENA SANDHU]
MEMBER
Rg
