Chandigarh

StateCommission

RP/25/2015

Samara Hyundai - Complainant(s)

Versus

Jaspreet Singh Bakshi - Opp.Party(s)

Varinder Singh Chandhok & Sandeep Sharma, Adv.

01 Jul 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Revision Petition No.	:	25 of 2015
Date of Institution	:	29.06.2015
Date of Decision	:	01.07.2015

 

Samara Hyundai, B-24, Okhla Industrial Area, Phase-I, New Delhi-110020.

…… Revision-Petitioner/Opposite Party No.3

 

V e r s u s

 

Jaspreet Singh Bakshi, #12, Sector 8A, Chandigarh, through Lt. Col. T.S. Bakshi, duly appointed Attorney.

…..Respondent/Complainant

 

 

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

         MR. DEV RAJ, MEMBER.

         MRS. PADMA PANDEY, MEMBER

 

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

Lt. Col. T.S. Bakshi (Retd.), Special Power of       Attorney Holder of the respondent/complainant.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

              This Revision-Petition is directed against the order dated 12.05.2015, 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 Revision-Petitioner), was proceeded against exparte.

2.       Consumer compliant bearing No.171 of 2015 was filed by the complainant alleging that despite the fact that his vehicle bearing No.CH04E-2299, insured with Opposite Party No.1, which was stolen from Safdarjung Enclave, New Delhi, during the night intervening 19/20.06.2013, and later on recovered from Moradabad, U.P., was landed with Opposite Party No.3 for repairs. It was finally handed over to him, after 18 months, and that too without rectifying all the defects. It was further stated that, not only this since the car had been got insured from Opposite Party No.1, on payment of premium, yet the survey report, in respect of the defects, in the same, as also the parts required to be replaced with new ones, was made available after 14 weeks of recovery thereof. It was further stated that not only this, various parts of the car, in question, were not replaced by Opposite Party No.3, despite the fact that the same had been approved by the Surveyor. It was further stated that a lot of correspondence was made by the complainant, with the Opposite Parties, yet, they did not take the matter seriously. 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. 
3.       Despite deemed service, none put in appearance,  on behalf of Opposite Party No.3,  before the District Forum, as a result whereof, it was  proceeded against exparte, vide order dated 12.05.2015.
4.       Feeling aggrieved, the instant Revision-Petition, was filed by the Revision-Petitioner/Opposite Party No.3, against the order dated 12.05.2015.
5.       We have heard the Counsel for the Revision- Petitioner, Lt. Col. T.S. Bakshi (Retd.), Special Power of Attorney Holder of the respondent/complainant, and have gone through the record of the case, carefully.
6.       The Counsel for the Revision-Petitioner/ Opposite Party No.3, submitted that, no doubt, on 12.05.2015, none put in appearance, on behalf of Opposite Party No.3, in the District Forum, in the consumer complaint, bearing No.171 of 2015. He further submitted that, on receipt of notice in the consumer complaint, the Officials of the Revision-Petitioner/Opposite Party No.3 had forwarded the matter to Amaresh K. Singh and Associates, which were empaneled with it, at New Delhi. He further submitted that, later on, while going through the case papers, it came to the notice of the Advocate concerned, that the matter pertained to the District Consumer Disputes Redressal Forum, Chandigarh and not the District Consumer Disputes Redressal Forum, New Delhi. As such, the case file was sent back to the office of Opposite Party No.3, so that an Advocate could be engaged at Chandigarh, to defend the consumer complaint, before the District Consumer Disputes Redressal Forum, Chandigarh. He further submitted that, it was on account of the reasons, aforesaid, that Opposite Party No.3/Revision-Petitioner, could not engage the Advocate, in time, and give instructions to him, to defend the consumer complaint, as a result whereof, the same (consumer complaint) was left unrepresented, on its behalf, on the date fixed. He further submitted that absence of the Revision-Petitioner/Opposite Party No.3, on 12.05.2015, in the District Forum, was, thus, neither intentional, nor deliberate, but for the reasons, aforesaid. He further submitted that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to the 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, being illegal, is liable to be set aside. 
7.           On the other hand, Lt. Col. T.S. Bakshi (Retd.), Special Power of Attorney Holder of the respondent/complainant, submitted that absence of the Revision-Petitioner/Opposite Party No.3, on 12.05.2015, despite deemed service, in the District Forum, was intentional and deliberate.
8.        Perusal of the District Forum record, reveals that the complaint was admitted, vide order dated   01.04.2015,   and    notice   was ordered to be issued to the Opposite Parties, for 12.05.2015. For 12.05.2015, the notice sent to Opposite Party No.3, through registered post, on 07.04.2015, was not received back served/un-served. Since more than 30 days had lapsed, from the date of issuance of notice, but the same had not been received back, with or without any report, the District Forum, presumed that Opposite Party No.3, had been duly served. However, despite deemed service, no legally authorized representative, on its behalf,  put in appearance, as a result whereof, Opposite Party No.3, was proceeded against exparte, vide order dated 12.05.2015.
9.       Admittedly, the notice sent for the service of Opposite Party No.3, on 07.04.2015, for the date fixed i.e. 12.05.2015, was received by it. No doubt, it was submitted by the Counsel for the Revision-Petitioner that the Revision-Petitioner/Opposite Party No.3, could not appear, in the District Forum, on the date fixed, on account of the reason that on receipt of notice in the consumer complaint, in the first instance, it was inadvertently, forwarded to Amaresh K. Singh and Associates, which were empaneled with it, at New Delhi, for defending the same (consumer complaint), but, later on, while going through the same (case papers), it came to the notice of the Advocate concerned, that the matter pertained to the District Forum, Chandigarh, whereafter, the same (case file) was sent back to the office of Opposite Party No.3, so that an Advocate at Chandigarh, could be engaged to defend the consumer complaint, before the District Forum, Chandigarh, which took some time, as a result whereof, on 12.05.2015, none could put in appearance, on its (Revision-Petitioner/Opposite Party No.3), behalf before it (District Forum). However, the plea taken by the Revision-Petitioner, in this regard, does not carry any weight, as the same is not supported by the affidavit of the said Official, who allegedly, inadvertently, forwarded the case file to Amaresh K. Singh and Associates, which were empaneled with it, at New Delhi, for defending the same (consumer complaint). The Revision-Petitioner/ Opposite Party No.3, failed to produce, on record, any document, depicting the actual reason, for its non-appearance, in the District Forum, on the date fixed i.e. 12.05.2015, Therefore, in the absence of production of any cogent material, in the shape of document(s), the bald assertion of the Revision-Petitioner/Opposite Party No.3, with regard to its absence, in the District Forum, on the date fixed i.e. 12.05.2015, cannot be taken into consideration. Thus, it means that despite service, none put in appearance, on behalf of Opposite Party No.3, in the District Forum, on the date fixed, for the reasons, best known to it, as a result whereof, it was proceeded against exparte, by the District Forum.
10.       However, whatever the case may be, 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.       In our considered opinion, an opportunity should be afforded to Opposite Party No.3, for filing vakalatnama, 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.
12.       For, whatsoever, the reason may be, by not appearing, in the District Forum, on the date fixed, and not filing the vakalatnama, 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, an endeavour should be made to decide every 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, an endeavour should be made to decide the complaint, 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 18.03.2015. Since, the case is being remanded back, certainly 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.
13.       For the reasons recorded above, the Revision-Petition is accepted. The order dated 12.05.2015, rendered by the District Forum, is set aside qua the Revision Petitioner, subject to payment of costs of Rs.3,000/-, by it (Revision-Petitioner/Opposite Party No.3), to the respondent/complainant. The District Forum shall grant only one reasonable opportunity, to Opposite Party No.3, for filing vakalatnama, 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, shall be made, before filing the vakalatnama, written reply, alongwith evidence, by way of affidavit(s). 
14.       The parties are directed to appear, before District Forum (I) on 10.7.2015 at 10.30 A.M., for further proceedings.
15.         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. 10.7.2015  at 10.30 A.M.
16.        Certified Copies of this order, be sent to the parties, free of charge.
17.       The Revision-Petition file be consigned to the Record Room, after due completion.

Pronounced

July 1,2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

 

Rg