Sri Subhra Sankar Bhatta, Judicial Member

The instant First Appeal has been directed at the instance of the Appellant Smt. Debarati Sen who was the Complainant before the District Consumer Disputes Redressal Forum, Kolkata Unit—II (hereinafter referred to as the ‘the District Commission’ for short) against the Respondents viz. 1) Ford India Private Limited 2) Lexicon Commercial Enterprise Limited and 3) Ganges Ford assailing the impugned order dated 14.12.2018 (vide order no. 13) passed by the Ld. District Commission in Consumer Complaint Case No. CC/58/2018 whereby Ld. District Commission was pleased to dismiss the complaint case for non-prosecution but without any order as to costs.

Ld. District Commission below was pleased to observe in the impugned order to the effect that

“today is fixed for filing E/chief by the Complainant.

The Ld. Advocate for the O.Ps 2 and 3 are present. Neither the Complainant is present nor files E/chief. None appears on behalf of the Complainant on second call. It is about 12:45 P.M. There is no prayer on the part of the Complainant for extension of time to file E/Chief. Therefore, we have no other alternative but to dismiss the complaint.”

Appellant Smt. Debarati Sen as Complainant instituted a petition of complaint against the Opposite Parties (Respondents herein) before the Ld. DCDRC at Kolkata, Unit—II praying for relief/reliefs as sought for in the prayer portion of the complaint petition. The Appellant/Complainant was conducting the complaint case with due diligence but on 14.12.2018 the Complainant could not appear before the Ld. District Commission below. Complainant also failed to file the examination in chief as per direction of the Ld. Commission below. Resultantly the Ld. Commission below was pleased to dismiss the complaint case for non-prosecution.

Being aggrieved by and dissatisfied with the impugned order dated 14.12.2018 passed in the CC case No. 58/2018 the Complainant as Appellant has preferred the present appeal on various grounds as highlighted in the memorandum of appeal. It has been contended that the Ld. Forum below ought to have considered that either of the party should not be left unheard as the complaint case has sufficient merit and the Complainant/Appellant has the chance of succeeding in the trial; that the Ld. Commission below failed to appreciate that the conducting advocate for the Complainant was in a bed ridden condition due to fracture of leg at the relevant time of passing the impugned order; that the impugned order is liable to be set aside otherwise the Appellant/Complainant will suffer irreparable loss and injury. On all such grounds the Appellant has prayed for allowing the present appeal after setting aside the impugned order of the Ld. Commission below.

It is palpable from the case record that on 14.12.2018 the Complaint Case was fixed for filing examination-in-chief by the Complainant but the Complainant failed to present the same. None was present on behalf of the Complainant on second call also. The Ld. Commission below after considering the above aspect and performance of the Complainant was pleased to dismiss the complaint of the Complainant for non-prosecution. Undoubtedly, Ld. Commission below did not give an opportunity to the Complainant to file show cause for such absence on 14.12.2018.  No order is forthcoming on record to that effect. It is to be borne in mind that the Consumer Protection Act is a benevolent legislation and the main object of this Act is to give protection to the consumer. Complainant as consumer instituted the complaint case before the Ld. Commission below for getting relief and redressal on the ground of deficiency in service and unfair trade practices from the end of the Respondents/OPs. Fact remains that for the impugned order “dismissed for non-prosecution” has caused irreparable loss and hardship to the present Appellant. In our considered view an opportunity should be given to the Appellant/Complainant to proceed with the complaint case by filing examination-in-chief. Considering all aspects from all angles and keeping in mind the position of law and the principles of equity, good conscience and natural justice we are constrained to hold that the impugned order cannot sustain in the eye of law. Appellant/Complainant was not awarded an opportunity to file show cause for such absence on 14.12.2018.  In our considered view,  Appellant/Complainant should be given a chance to contest the complaint case on merit after filing examination-in-chief on their part.

We are not unmindful to give caution to the Appellant/complainant that the Appellant/Complainant shall be more careful and diligent to conduct the complaint case in a serious manner in near future. Thus, being the position we hold and firmly hold that the impugned order dated 14.12.2018 passed by the Ld. Commission below in CC Case No. 58/2018 is liable to be set aside for just, proper and effective adjudication of the complaint case.

Resultantly, the present appeal succeeds and the impugned order deserves interference of this appellate authority.

It is, therefore,

O R D E R E D

That the present appeal being No. 172/2019 be and the same is allowed on contest against Respondent No. 3 and ex parte against the rest subject to payment of cost of Rs. 1,000/- One thousand only  (C.P.) payable to Respondent No. 3.

Thus, the impugned order dated 14.12.2018 vide order no. 13 passed by the Ld. Commission below in connection with consumer complaint case no. CC/58/2018 is hereby set aside.

Ld. Commission below is directed to give opportunity to the Complainant to file their examination-in-chief by way of affidavit within 15 days hereof failing which law will take its own course. On receipt of the examination-in-chief from the Complainant Ld. Commission below is further directed to proceed with the complaint case in accordance with law.

The parties to this appeal are directed to appear before the Ld. Commission below on 29.03.2023 for receiving further order/orders from the Ld. Commission below.

Let a copy of this order be transmitted to the Ld. Commission below forthwith for information and taking necessary action.

Thus, the Appeal stands disposed of.

Note accordingly.