STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.  Rohit Parti, Proprietor of Balaji Caterers, SCO 2925-26, Sector 22-C, Chandigarh, through its Proprietor Sh.Rohit Parti. 

2.  Hotel Balaji SCO 2925-26, Sector 22-C, Chandigarh

through its Manager/proprietor

……Appellants.

V E R S U S

Deepak Verma son of Sh. Som Nath Verma, Resident of House No. 756/2, near Dera Sahib, Mani Majra, Chandigarh.

....Respondent

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:    MR. JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

                   SH.JAGROOP SINGH MAHAL, MEMBER

Argued by:  Sh.Sandeep Bhardwaj, Advocate for the appellants.

              Ms. Indu, Advocate proxy for Sh. N.D. Achint,                  Advocate for the respondent.

PER JUSTICE SHAM SUNDER, PRESIDENT

1.               This appeal is directed against the order dated 06.05.2011, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which it accepted the complaint and directed the OPs(now appellants) as under:-

“Keeping in view the sensitivity of the situation and humiliation faced by the complainant and the evidence in support of, it goes unrebutted through out, so we are of the considered opinion that there is merit in the complaint and the same is accordingly allowed.  The OPs are directed to refund the amount of Rs.3,10,000/- with interest @ 9% from the date of filing of the complaint. The OPs also liable to pay Rs.40,000/- for the harassment and mental agony faced by the complainant along with Rs.10,000/- towards costs of litigation within 30 days from the date of receipt of copy of this order failing which the OPs would be liable to pay the aforesaid amount alongwith penal interest @18% p.a. from the date i.e. 21.10.2010, the day the payment is actually made to the complainant”.

2.               The facts, in brief, are that the complainant, on 9.9.2010, made an offer to the OPs, for rendering catering, flowering and tenting services for 600 persons, for his marriage which was  to be solemnized at Arzoo Resort on 12.11.2010. The said offer was accepted by the OPs, by receiving 20% advance booking amount of Rs.1,35,000/-, on 9.9.2010. The OPs also received 60% advance of Rs.1,75,000/-, prior to 21.10.2010, under their signatures, as per terms and conditions.  Receipt Annexure C-1 & C-2, regarding receipt of the aforesaid amount, duly signed by the OPs, were issued. Menu Annexure C-5, was also provided by the OPs, in which they offered as many as 100 eatables for the guests. The OPs did not turn up at Arzoo Resort on 12.11.2010, till 6.00 pm., despite several phone calls, made to them, on mobile, and landline numbers. Only 15-20 persons, were made available, by the OPs, who expressed their inability to serve, as they had no cups and plates. However, they were pressed upon to serve in the crockery available, in the resort. It was further stated that the marriage party reached at about 9.30 pm, in the aforesaid resort, but no proper and sufficient arrangements, were made by the OPs. Moreover, the items prepared by the OPs, were insufficient for 600 persons, due to which, hundreds of persons left the party, while expressing their annoyance.  It was further stated that the sitting arrangement was not even for 50 persons, which caused humiliation, to the complainant, as well as, the family members of the bride, as it was a joint function, arranged by them. It was further stated that, on account of the negligent act of the OPs, the entire function was spoiled, causing embarrassment to the complainant. It was further stated that the aforesaid acts of the OPs, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. It was further stated that the OPs were many a time, asked to compensate the complainant, but to no avail.

3.               When the grievance of the complainant, was not redressed, left with no other alternative, a Complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed against the OPs.

4.               The OPs refused to accept the service of summons. The District Forum, came to the conclusion, that refusal on the part of the OPs, to accept the summons amounted to due service. None appeared, on behalf of the OPs. Accordingly, they were proceeded against ex-parte.

5.               The complainant led evidence, in support of his case.

6.               After hearing the Counsel for the complainant, and on going through the evidence and record, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

7.               Feeling aggrieved, the instant appeal, has been filed by the appellants/OPs.

8.               We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 

9.               The Counsel for the appellants, submitted that no doubt, the OPs were proceeded against ex-parte, in the District Forum, yet, no worthwhile evidence, was led by the complainant, that arrangements made by the OPs, were not upto the mark, as a result whereof, he had to face a lot of humiliation and annoyance of the guests. He further submitted that, only a brief affidavit, by way of evidence, was enclosed with the complaint, which did not prove the allegations, levelled by the complainant.  It was further submitted that even no payment of Rs.1,75,000/-, on 21.10.2010,  was made by the complainant, to the OPs, but, on the last page of the menu, he  wrote the figures of Rs.135,000+ 40,000/-, to show that he paid this amount on that date. He further submitted that the arrangements made by the OPs, were upto the mark. He further submitted that only Rs.1,35,000/-, were paid to the OPs, by the complainant, in advance, for which receipt C-1, was issued by them. He further submitted that since, the OPs were proceeded against ex-parte, they had no opportunity to rebut the allegations, contained in the complaint. He further submitted that the ex-parte order impugned, passed against the OPs, by the District Forum, being illegal, is liable to be set aside and the case be remanded back, for fresh decision

10.            On the other hand, the Counsel for the respondent, submitted that, no doubt, only the affidavit of the complainant, in support of the allegations contained in the complaint, was submitted yet, there were other documents, placed on the record, showing that the payment of Rs.3,10,000/- was made to the OPs/appellants, for making arrangements, but they did not do so, resulting into humiliation to the complainant, his guests, as also, the family members of the bride and their guests, as it was a joint function. She further submitted that the order of the District Forum, being legal, and valid, deserves to be upheld.

11.            After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, the evidence and record, we are of the considered opinion, that the appeal is liable to be accepted and the complaint deserves to be remanded back, to the District Forum, for fresh decision, for the reasons, to be recorded hereinafter. No doubt, the allegations, in the complaint, were made, by the complainant, that no satisfactory arrangements were made by the OPs, yet, in support of the said allegations, no detailed affidavit was filed by him. Only a brief affidavit, to the effect, that the contents of para. 7 to 16, contained in the complaint, were correct and true to the knowledge of the complainant, was filed. In our considered opinion, such an affidavit could not be said to be sufficient to prove the allegations, contained in the complaint. Not only this, though, twice, the summons were sent by the District Forum, for the service of the OPs, yet, they refused to receive the same, as a result whereof, they were proceeded against ex-parte. The OPs were, thus, certainly negligent, in appearing in the District Forum. However, alongwith the appeal a number of documents, were attached by the appellants, to rebut the allegations, contained in the complaint, yet, the same could not be read, at this stage. It is settled principle of law, that every lis, should normally be decided, on merits, than by default. For the mere negligence of the OPs, in appearing in the District Forum, and putting forth their version, they cannot be condemned unheard. It is a fit case, in which, in our considered opinion, an opportunity should be granted to the OPs, to put forth their version, by way of filing written statement, and also, to the parties to lead evidence, in a proper manner. It is settled principle of law, that hyper-technicalities, should not stay, in the way of grant of substantial justice. When hyper-technicalities and substantial justice, are pitted against each other, then the latter will prevail over the former.  Even otherwise, procedure, is, in the ultimate, the handmaid of Justice, meant to advance the cause thereof, than to thwart the same. The principle of natural justice, also requires, that every party to the lis, should be afforded full opportunity, to put forth its version, and, lead evidence, so that the dispute could be adjudicated upon completely and effectively, on merits. The OPs/appellants are liable to be burdened with costs, for their act of refusing the service of summons, and, not appearing in the District Forum, which has necessitated the remand of complaint for fresh decision.

12.            For the reasons recorded above, the appeal, is accepted, subject to payment of costs of Rs.5,000/-, by the appellants/OPs, to the respondent/complainant. The impugned order, is set aside, and the complaint is remanded back to the District Forum, with a direction to permit the OPs, to file their written statement/reply; afford an opportunity to the parties to lead evidence, in a proper manner, by way of affidavits, and thereafter, decide the case afresh, after hearing the arguments of the Counsel for the parties, within 2 months, from 17.10.2011. The payment of costs imposed, upon the OPs/appellants, shall be a condition precedent, in other words, the payment of costs, shall be made by the OPs, in the first instance, and only thereafter, they shall be entitled to file written statement/reply and adduce evidence.

13.            The parties are directed to appear before the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh, on 17.10.2011 at 10.30 a.m., positively.

14.            The record of the District Forum be sent back at once.

15.            Certified Copies of this order be sent to the parties, free of charge.

Pronounced.

4^th October, 2011

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

 [NEENA SANDHU]

MEMBER

Sd/-

 [JAGROOP SINGH MAHAL]

 MEMBER

Rg