Chandigarh

StateCommission

RP/4/2015

FCM Travel Solution - Complainant(s)

Versus

Deepak Bansal - Opp.Party(s)

Ekta Jhanji & Avinit Avasthi

02 Feb 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Revision-Petition No.	:	04 of 2015
Date of Institution	:	30.01.2015
Date of Decision	:	02/02/2015

 

FCM Travel Solution, 19 Floor, Tower A, Building No.5, DLF Syyer Terrance, DLF Ciber City, Gurgaon, through its Manager.

…… Revision-Petitioner/Opposite Party No.3

 

V e r s u s

 

1. Deepak Bansal son of Sham Lal Bansal, resident of Flat No.6, Devika Apartments, Gurdev Nagar, Babhat Road, Zirakpur, Tehsil Dera Bassi, District SAS Nagar Mohali.

….Respondent/Complainant 

 

2. Saurabh Gupta son of Varinder Kumar Gupta, resident of 345, First Floor, Sector 46A, Chandigarh.
3. FCM Travel Solution, 19 Floor, Tower A, Building No.5, DLF Syyer Terrance, DLF Ciber City, Gurgaon, through its Manager.

….Performa Respondents

 

BEFORE:     JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                   MR. DEV RAJ, MEMBER.

                    MRS. PADMA PANDEY, MEMBER

               

Argued by:   Sh.Avinit Avasthi, Advocate for the Revision-Petitioner/Opposite Party No.3.

                    Sh.P.S. Punia, Advocate for the respondent/ complainant.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            This Revision-Petition is directed against the order dated 12.01.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, Opposite Party No.3  (now the Revision-Petitioner), was proceeded against exparte.

2.       The facts, in brief, are that Opposite Party No.1 allured the complainant, in respect of cheap tour package, being provided by Opposite Parties No. 2 and 3, for various Countries. Since, the complainant, alongwith his family, had already decided to celebrate Christmas and new year 2014, at Singapore, Malaysia and Thailand, as such, he (complainant) contacted Opposite Party No.1, for arrangement of a tour package for them. It was stated that, it was assured by Opposite Party No.1, that the complainant and his family would be provided tour package, including visas for the said Countries. It was further stated that since Opposite Party No.1 was known to the complainant, as such, he (complainant) believed him, and handed over his (complainant) credit card to him (Opposite Party No.1), to make part payment towards the said tour. However, the remaining payment towards the said tour was made by the complainant, through other modes. It was further stated that after some days, Opposite Party No.1 gave a phone call to the complainant, regarding the confirmation of air tickets, hotel booking and other facilities. It was further stated that, as such, the total amount of Rs.2,93,000/-, was paid by the complainant,  to the Opposite Parties, towards the said tour, including visas for him and his family. It was further stated that, thereafter, it was informed to the complainant by Opposite Party No.1, that visas for Singapore and Malaysia, had been received and the visa for Thailand, was in process. It was further stated that, to the utter surprise of the complainant, on 21.12.2013, at around 6.00 P.M., the complainant was informed by Opposite Party No.1, that due to some problem, the tour programme had to be extended to 30/31/12.2013, on the ground of non-grant of visas. 
3.       It was further stated that the entire tour package of the complainant was unilaterally changed by the Opposite Parties. It was further stated that, not only this, on 30.12.2013, when the complainant was on way to Delhi Airport, alongwith his family, he made a call to its  (Airport) Customer Care/ Emergency No., and spoke to one Ms.Anikta Bhatnagar, regarding his flight details. It was further stated that the complainant was surprised to hear, from Ms.Anikta Bhatnagar, that the amount towards the tickets for the said Countries, had still not been paid by Opposite Party No.1. It was further told by Ms.Anikta Bhatnagar to the complainant, that he alongwith his family would not be allowed to board the flight, unless the amount of tickets was paid by them. It was further stated that, on the other hand, the complainant had paid the entire amount, towards the said tour, including visa, as demanded by the Opposite Parties.
4.       It was further stated that, later on, the complainant came to know that the Opposite Parties had embezzled the amount paid by him, towards the said tour package. It was further stated that, as such, the complainant and his family were deprived of the said tour, despite payment of hefty amount of Rs.2,93,000/-, to the Opposite Parties. It was further stated that legal notice dated 22.06.2014 was served upon the Opposite Parties, to refund the amount of Rs.2,93,000/-, alongwith interest and to pay compensation, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also 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, claiming various reliefs.       
5.       On 12.01.2015, when the consumer complaint was fixed for filing of written reply and evidence, on behalf of Opposite Party No.3, none put in appearance, on its behalf, as a result whereof, it was proceeded against exparte, on the said date (12.01.2015), by the District Forum. 
6.       Feeling aggrieved, the instant Revision-Petition, was filed by the Revision-Petitioner/ Opposite Party No.3, against the order dated 12.01.2015.
7.        We have heard the Counsel for the Revision-Petitioner/Opposite Party No.3, respondent/ complainant,  and have gone through the record of the case, carefully.
8.       The Counsel for the Revision-Petitioner/ Opposite Party No.3, submitted that, no doubt, none put in appearance, on behalf of Opposite Party No.3 on 12.01.2015, in the District Forum, as a result whereof it was proceeded against exparte, on the said date, by it (District Forum). He further submitted that the Advocate concerned, could not put in appearance, on 12.01.2015, in the District Forum, on behalf of Opposite Party No.3, on account of the reason that he had to appear, in two consumer cases,  listed before the State Consumer Disputes Redressal Commission, Haryana, and District Consumer Disputes Redressal Forum, Panchkula, respectively, which took some time. He further submitted that the said Advocate was on his way to appear, before the District Forum, in the consumer complaint, but he got stuck in the traffic jam. As such, he could not reach, in time, in the District Forum, when the case was called. It was further submitted that, by the time, the said Advocate, reached the District Forum, Opposite Party No.3, had already been proceeded against exparte. He further submitted that, on account of the reasons, aforesaid, the Advocate concerned could not appear in the District Forum, on 12.01.2015, when the complaint was called. He further submitted that non-appearance, on behalf of Opposite Party No.3 in the District Forum, on the date fixed, was neither intentional nor deliberate, but, on account of the circumstances, referred to above. He further submitted that, in case, the order impugned is not set aside, and the Revision-Petitioner/Opposite Party No.3, is not allowed to submit written version, and furnish evidence, by way of affidavit(s),  irreparable injury is likely to occasion, to it (Revision-Petitioner/Opposite Party No.3), as, in that event, it would be condemned unheard. He further submitted that, thus, the order of the District Forum, in proceeding exparte against Opposite Party No.3/Revision-Petitioner, is liable to be set aside, and the case deserves to be remanded back, to it, for fresh decision, after affording it, an opportunity of filing the written version, and evidence, by way of affidavit(s).
9.           On the other hand, the Counsel for the respondent/complainant submitted that, no doubt, the absence of the Revision-Petitioner/Opposite Party No.3, on 12.01.2015, in the District Forum, was intentional and deliberate, yet in the interest of justice, he has no objection, if the exparte order is set aside, subject to imposition of heavy costs upon it (Revision-Petitioner).
10.           No doubt, perusal of the District Forum record, clearly reveals that Opposite Party  No.3 (now Revision-Petitioner), was rightly proceeded against exparte, on 12.01.2015, as none put in appearance, on that date (12.01.2015), on its (Opposite Party No.3) behalf, yet, it is settled principle of law, that every lis should normally be decided, on merits, than by resorting to hyper-technicalities. When 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. In State of Punjab and another vs. Shamlal Murari & Anr., AIR 1976 SC 1177, the principle of law, laid down, was to the effect, that procedure, is, in the ultimate, handmaid of justice, and not its mistress and is meant to advance its cause, and not to obstruct the same. The procedural Rule, therefore, has to be liberally construed, and care must be taken, that so strict interpretation be not placed thereon, whereby, technicality may tend to triumph over justice. It has to be kept in mind, that an overly strict construction of procedural provisions, may result in the stifling of material evidence, of a party, even if, for adequate reasons, which may be beyond its control. We must always remember that procedural law, is not an obstruction, but an aid to justice. Procedural prescriptions are the hand-maid, and not the mistress, a lubricant, not a resistant, in the administration of justice. If the breach can be corrected, without injury to the just disposal of a case, regulatory requirement should not be enthroned into a dominant desideratum. The Courts and the quasi-Judicial Tribunals, have been set up, with the sole purpose of dispensing justice, and not to wreck the end result, on technicalities.
11.           No doubt, there was negligence, on the part of the Counsel for Opposite Party No.3, as it was required of him to reach the District Forum, in time, when the complaint was called,  on the date fixed, i.e. on 12.01.2015. However, even if, the Counsel concerned had to appear, in two consumer cases,  listed before the State Consumer Disputes Redressal Commission, Haryana, and District Consumer Disputes Redressal Forum, Panchkula, respectively, which took some time, and, thereafter, he allegedly got stuck, in the traffic jam, while on his way to the District Forum, Chandigarh, to appear in the consumer complaint, it was required of him, to inform one of his colleagues/Juniors, by  making him a telephonic call, with a request to appear as Proxy Counsel, on his behalf, before it (District Forum), and make a prayer to keep the case pending, till he reached or to give a short date, but he failed to do so. Since, the Counsel did not take the requisite measures, referred to above, negligence was attributable to him. It is also settled principle of law, that for the negligence or inadvertence of the Counsel, the party should not suffer. 
12.           In our considered opinion, an opportunity should be afforded to Opposite Party No.3/Revision-Petitioner, for filing written version, and evidence, by way of affidavit(s), so that the complaint could be decided, on merits, and the rights of the Parties are finally determined, by one Forum, one way or the other. In this view of the matter, the order impugned is liable to be set aside.
13.           For, whatsoever, the reason may be, by not appearing, in the District Forum, on the date fixed, and not filing the written version, alongwith evidence, by way of affidavit(s), the Revision-Petitioner/ Opposite Party No.3, certainly caused delay, in the disposal of complaint, on merits. According to Section 13 (3A) of the Act, endeavour should be made to decide the complaint, within three months, from the date of service of the Opposite Party(s), 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 service of the Opposite Party(s).  The complaint was filed, in the District Forum, on 10.10.2014. Since, the case is being remanded back, certainly further delay shall be caused, in the disposal thereof. The Revision-Petitioner is, thus, required to be burdened with costs, for causing delay, in the disposal of complaint and to meet the ends of justice.
14.            For the reasons recorded above, the Revision-Petition is accepted. The order dated 12.01.2015, rendered by the District Forum, is set aside, subject to payment of costs of Rs.3,000/-, by the Revision-Petitioner/Opposite Party No.3, to the respondent/complainant. The District Forum shall grant only one reasonable opportunity, to the Revision-Petitioner/Opposite Party No.3,  for filing written reply, alongwith evidence, by way of affidavit(s), and, thereafter, decide the complaint, on merits, in accordance with the provisions of law. The payment of cost to the tune of Rs.3,000/-, referred to above, to the respondent/complainant, shall be a condition precedent. In other words, the payment of cost, referred to above, shall be made, before filing the written reply, alongwith evidence, by way of affidavit(s). 
15.            The parties are directed to appear, before District Forum (I) on 09.02.2015 at 10.30 A.M., for further proceedings.
16.            The District Forum record, alongwith a certified copy of the order, be sent back, to it, immediately, so as to reach there, well before the date and time fixed i.e. 09.02.2015  at 10.30 A.M.
17.            Certified Copies of this order, be sent to the parties, free of charge.
18.            The Revision-Petition file be consigned to the Record Room, after due completion.

Pronounced

02/02/2015

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/- 

 [DEV RAJ]

MEMBER

Sd/-

 [PADMA PANDEY]

MEMBER

Rg