SAMIKSHA BHATTACHARYA, MEMBER
The instant Appeal has been directed by the appellant/complainant under Section 15 of the CP Act, 1986 against the order dated 07.06.2022 in case No. CC/395/2018 passed by the Ld. District Commission, Kolkata Unit-III (south).
Heard the Ld. Advocate. Perused the record, it appears to us that the appeal has been filed with a delay of 48 days. The appellant/complainant has filed a petition for condonation of delay. The Ld. Advocate for the appellant/complainant has submitted that the final order passed on 07.06.2022 but the Ld. District Commission did not issue any plain/free copy of the order to the complainant. The conducting Advocate, after perusing the record, surprisingly noticed that the order was passed against the appellant and, thereafter, the Ld. Advocate applied for the certified copy on 02.08.2022 and communicated the order to the appellant/complainant on 09.08.2022 for valid opinion for filing an appeal before this Commission. Thereafter, the appellant who after receiving the case documents from the conducting Advocate approached Mr. Barun Prasad for filing the appeal before this Commission and handed over all the case records to him to prepare the Memo of Appeal. Due to busy schedule of the Ld. Advocate took some time for preparation of the memorandum of appeal and sent the same to the appellant for his approval. Therefore, there was a delay of about 48 days in filing the appeal and since the appellant is complainant, he prays for condoning the delay in filing the instant appeal, otherwise the appellant/complainant will suffer irreparable loss and injury.
Heard the Ld. Advocate for the appellant. The cause shown for delay is cogent and sufficient. Since the Consumer Protection Act is benevolent legislation to protect the interest of the consumer we hereby condone the delay for filing the instant appeal filed by the appellant/complainant for the interest of justice.
Let the appeal be admitted and registered.
We have gone through the impugned order dated 07.06.2022. It appears that on 07.06.2022 due to the absence of the complainant, the case was dismissed for default.
Being aggrieved by and dissatisfied with the said order, the appellant/complainant has filed the instant appeal.
Ld. Advocate for the appellant/complainant has submitted that the complainant was present on all the dates of the case and never failed to attend the court and OP No. 3, being the confirming party, having no financial liability joined in the course of the proceeding and the case attained its final stage, i.e., the complaint case was fixed for argument. Since the conducting Advocate of the appellant being an aged person was operated in the hospital due to serious accident occurred in the Alipore Court. The case was dismissed for default only because of the accident and due to post-operative rest period, the Ld. Advocate could not attend the court.
On scrutiny of the record it appears that one Mr. Wasim Akhtir Dafadar appeared on 1st June, 2023 on behalf of all the respondents/OPs by filing fresh Vokalatnama and the date was fixed for final hearing on 18.08.2023. But none appeared on 18.08.2023 behalf of the respondents. Therefore, the case was heard ex parte against the respondent.
On the date of hearing, the Ld. Advocate for the appellant/complainant has submitted with all fairness that due to this unavoidable reason he could not attend the court and the case was dismissed for default for his absence and he has prayed for setting aside the impugned order. Upon hearing the Ld. Advocate for the appellant/complainant and on perusal of the entire materials on record, we are of considered view that the complainant should be given an opportunity such that his case would be adjudicated properly. Though the Act stipulates a period for disposing the complaint but the complaints cannot be disposed of due to non-availability of resources and infrastructure. In this regard, we can cite the judgement passed by the Hon’ble Apex Court in Civil Appeal No. 4767/2019 (Vibha Bakhi Gokhale & Anr. – Vs. – Ms. Gruhashilp Constructions & Ors.) in which Hon’ble Apex Court has observed that the ground for rejection is technical and in disregard in requirement of the substantial justice. The Hon’ble Court has also observed “It is harsh to penalise a bona fide litigant for marginal delays that may occur in judicial process. The Consumer Fora should bear this in mind so that the ends of justice are not defeated”.
We can also cite the judgment passed by Hon’ble Apex Court in Rafiq & Anr. Vs. Munshilal & Anr. Where the Hon’ble Apex Court held that “The problem that agitates us whether it is proper that the party should suffer for the inaction, deliberate omission or misdemeanour of his agent. The answer obviously is in the negative. May be that the Ld. Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of matter. We say nothing more on that aspect of matter. However, we cannot be a party to an innocent party suffering injustice nearly because his chosen Advocate defaulted.”
In the case in hand, the Ld. Advocate could not appear before the Commission due to his illness. He has submitted that being a kidney patient he is taking dialysis twice a week.
Considering the facts and circumstances and keeping in view of the word “protection” in the Act, we think that it would be just and proper to give the complainant/appellant an opportunity to proceed with the case to ventilate his grievance. The complaint should not be dismissed due to mere technical reasons.
Accordingly, we allow the appeal and set aside the judgement/order dated 07.06.2022 passed by the Ld. Commission for finality of litigation as well as to give better service to the consumer.
According to the impugned order dated 07.06.2022 passed by the Ld. DCDRC is hereby set aside.
The Ld. Commission is directed to restore the complaint case being No. CC/395/2018 to its original file and number and the Ld. Commission is requested to proceed with the case as per law and dispose of the case within two months from the date of receipt of this order. However, it is pertinent to mention that on each and every date fixed by the Ld. District Commission, the complainant or his Ld. Advocate or his authorised representative must be present otherwise this order of restoration should be vacated automatically.
Fix 19.09.2023 for appearance of the parties before the Ld. District Commission for receiving further direction.
The instant Appeal is disposed of accordingly.
Let a copy be sent to the concerned Ld. District Commission by this office at once.
