Per Justice Sham Sunder , President This appeal is directed against the order dated 24.12.2010, rendered by the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint and directed the OPs(now appellants) as under ; “The complaint is allowed with a direction to the OPs to refund Rs.1800/- being the price of the tyre in question. The OPs are also directed to pay to the complainant a sum of Rs.5000/- as compensation for mental agony and harassment along with Rs.5000/- as costs of litigation. This order be complied with by the OPs jointly and severally within 45 days from the date of receipt of its certified copy, failing which the OPs shall be liable to refund the aforesaid amount of Rs.6800/- to the complainant alongwith penal interest @ 18% p.a. from the date of filing of the complaint i.e.22.09.2010 till its realization besides costs of litigation.” 2. The complainant(now respondent No.1) purchased four tubeless tyres make “Apollo” from OP No.1 for Rs.1800/- vide invoice dated 23.03.2010 (annexure C-1). On 23.03.2010, the complainant was going to Una (HP), when one of the new tyres got deflated, and the same was replaced with stepny. The complainant got checked the tyre from the shopkeepers, at Una, as well at Hoshiarpur, who reported that the tyre in question, was defective, and not punctured. On reaching Chandigarh, the complainant approached OP-1, and requested for replacement of the said tyre, the proprietor whereof advised him to approach OP-2. The complainant approached OP-2, the representative whereof, put off the matter, on one pretext or the other. It was stated that the OPs failed to replace the defective tyre, despite his repeated requests and visits. It was further stated that a legal notice dated 29.4.2010 was also served upon the OPs, but to no avail. It was further stated that the aforesaid acts of the OPs, 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. 3. OP NO.1, was duly served, but none appeared, on its behalf, as a result whereof, it was proceeded against ex parte, vide order dated 3.11.2010. 4. Initially, OP NO.2 appeared through Sh.Sushil Kumar, Technical Service Engineer, but, subsequently, he remained absent. Therefore, OP No.2 was also proceeded against ex parte vide order dated 15.12.2010. 5. After hearing the Counsel for the complainant, and, on going through the evidence, on record, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 6. Feeling aggrieved, the instant appeal, has been filed, by the appellant/ OP No.2. 7. We have heard the Counsel for the parties, and have gone through the record of the case, carefully. 8. The Counsel for the appellant, submitted that, no doubt, one Sushil Kumar, Technical Service Engineer, on behalf of OP NO.2, put in appearance, on 3.11.2010, when the complaint was adjourned to 15.12.2010, for filing reply, evidence and authority letter . He further submitted that on 15.12.2010, the authorized representative of OP No.2 could not appear due to urgent official work, as a result whereof, it was proceeded against ex parte, and the case was decided ex parte, vide order dated 24.12.2010. He further submitted that the absence of the authorized representative of OP NO.2 on 15.12.2010, was neither intentional, nor deliberate. He further submitted that had an opportunity been granted to OP NO.2, by the District Forum, to file reply and evidence by way of affidavit, the things would have become clear, that the tyre got damaged, because it was insufficiently inflated or without any air pressure. He further submitted that the order of the District Forum be set aside and OP No.2, be granted an opportunity, to file written reply, and lead evidence. 9. On the other hand, the Counsel for respondent No.1/complainant, submitted that, if on one date, an authorized representative, on behalf of OP NO.2, could put in appearance, there was no hitch, in his way, in appearing, on the adjourned date. He further submitted that the absence of the duly authorized representative of OP NO.2 on 15.12.2010 was intentional and deliberate, and, as such, no option was left with the District Forum, than to proceed ex parte against it, and decide the case exparte. He further submitted that on the date, on which, the tyres were purchased, one of them, got damaged, which showed that there was complete deficiency, in service, on the part of the OPs. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld. 10. After giving our thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, we are of the considered opinion, that the appeal is liable to be accepted, and the complaint deserves to be remanded for fresh decision. It is settled principle of law, that every lis should be decided, on merits, than by resorting to technicalities. When the technicalities and the substantial justice are pitted against each other, then the latter will prevail over the former. Even otherwise, the procedure is, the handmaid of justice, meant to advance the cause thereof, than to thwart the same, and it should not be allowed to stand, in the way of grant of substantial justice. It is, no doubt, true that on 3.11.2010, Mr.Sushil Kumar, duly authorized representative of OP NO.2, put in appearance, when the case was adjourned to 15.12.2010 for filing reply, and evidence by way of affidavit. There was, no doubt, negligence, on the part of the duly authorized representative of OP No.2, in appearing before the District Forum on 15.12.2010, as a result whereof, it was proceeded against ex parte. Under these circumstances, no opportunity, could be granted to OP NO.2, to defend the complaint. OP No.2 was, thus, condemned unheard. We are, therefore, of the considered opinion, that it is a fit case, in which, an opportunity should be granted to OP NO.2, to file its written reply, and lead evidence, by way of affidavit(s), so as to, enable the Consumer Fora, to come to the conclusion, as to under what circumstances, the tyre, in question, got damaged on the very day, on which it was purchased. No injustice shall occasion to respondent No.1/complainant, in case, the order of the District Forum, is set aside, however, subject to payment of costs by the appellant/OP NO.2 and the case is remanded for fresh decision, in accordance with law. 11. For the reasons recorded above, the appeal is accepted, and the order impugned is set aside. The complaint is remanded to the District Forum, with a direction that an opportunity be granted to OP No.2, to file reply and evidence by way of affidavit(s), within a period of 15 days from 5.9.2011, however, subject to payment of Rs.3000/- (three thousands) as costs by it, to the complainant, and decide the case afresh, after hearing the arguments of the Counsel for the parties. It is, however, made clear that payment of costs of Rs.3000/- shall be a condition precedent to the filing of the written reply and leading of evidence by OP NO.2. 12. The parties are directed to appear before the District Forum on 5.9.2011 at 10.30 A.M. 12. The file of the District Forum be sent back, at once. 13. Certified Copies of this order be sent to the parties, free of charge. 14. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
