Present:-

          For the appellant      :                    Sh. Sanjeev Goyal, Advocate

          For the respondent  :                   Sh. Gaurav Sharma, Advocate

JUSTICE GURDEV SINGH,  PRESIDENT :

          This appeal has been preferred by the appellant/opposite party against the order dated 05.09.2013, passed by the District Consumer Disputes Redressal Forum, Barnala (in short “District Forum”), vide which the complaint filed by the respondent/complainant, Karamjit Singh, under Section 12 of the Consumer Protection Act, 1986, (in short, “the Act”) was allowed and the opposite party was directed to pay Rs.3,03,087/- to the complainant, along with interest at the rate of 6% per annum from the date of filing of the complaint till the realization of that amount and in case the cheque so received by the complainant had been got encashed by him, then the amount thereof was to be deducted from the amount so awarded.

2.                As per the allegations, made in the complaint, the complainant purchased one Heavy Goods Vehicle, fully described in para No.3 of the complaint, and got the same insured with the opposite party, vide policy dated 06.07.2012; which was valid upto 05.07.2013. On 06.02.2013, this vehicle met with an accident without any negligence on his part and the same was damaged badly. The matter was reported to the opposite party immediately, who sent the surveyor to the spot and that surveyor took the photographs and had done the necessary inquiry. As suggested by the surveyor, the vehicle was removed to Raj Agro Aids, Khanna,  for repairs and the opposite party promised to pay all the expenses for the repairs. It also promised that the claim would be given on the basis of the bills and he was asked to send the bills to it. He spent Rs. 3,03,087/- on the repairs and in respect thereof, bills/invoices No.755 and 756 for Rs.2,26,682/- and Rs.76,405/-, respectively, were issued. He sent those bills to the opposite party, who sent him cheque dated 28.02.2013 only for Rs.1,30,000/-, after partly admitting his claim. He did not accept that cheque and kept the same with him under protest. He never got the same encashed. He sent application dated 22.03.2013 to the opposite party with a request to pay the total claim amount of Rs.3,03,087/- but no reply was received from its side. He suffered physical and mental harassment and pecuniary loss also on account of the above said deficiency in service on the part of the opposite party. Besides the claim of Rs.3,03,087/-, along with interest at the rate of 18% p.a., he claimed Rs.1 lakh, as compensation for the physical harassment and mental agony caused to him and Rs.20,000/- as costs.

3.                The opposite party did not appear before the District Forum in spite of its service and was proceeded against exparte.

4.                In support of the allegations made in the complaint the complainant proved on record his affidavit Ex.C-10 and documents Ex.C-1 to Ex.C-9. The District Forum after going through that evidence and after hearing learned counsel on his behalf, allowed the complaint, vide aforesaid order.

5.                We have heard learned counsel for both the sides and have carefully gone through the record of the case.

6.                It has been submitted by counsel for the appellant/opposite party that the opposite party was never served for the date on which it was ordered to be proceeded against ex-parte and that itself is a ground for setting aside the impugned order; which was passed ex-parte. On the other hand, it has been submitted by the counsel for the respondent/complainant that the opposite party was duly served for the date fixed and it had the knowledge of the pendency of the complaint. Therefore, it cannot be said that opposite party was wrongly proceeded against ex-parte by District Forum and there is no ground for upsetting the order passed by it.

7.                After having minutely gone through the records of the District Forum and the averments of the opposite party made in the grounds of appeal, we have come to the conclusion that it was never properly served for the date on which it was ordered to be proceeded against ex-parte. A perusal of the records of the District Forum shows that after the complaint was admitted on 09.05.2013, notice was ordered to be issued to the opposite party for 30.05.2013. The notice was sent to it through registered post on 10.05.2013 and on the date fixed, the registered cover had not been received back. The complaint was adjourned for awaiting the service of the opposite party for 13.06.2013. On that date the opposite party was proceeded against ex-parte by observing that the requisite period of 30 days had already expired and,  as such, it is presumed to have been served.

8.                While fixing the date for the service of the opposite party, through registered post, the District Forum should have kept in mind that the next date should have been for more than 30 days, so as to enable the official to issue the notice and between that date and the date fixed there should have been a gap of more than 30 days, so as to draw the presumption of service legally. The sending of the notice to the opposite party was not a mere formality and the purpose of sending of the notice was that it should have come to know that the complaint had been filed against it and that it had sufficient time to put in its appearance before the District Forum. On the date (13.06.2013) the opposite party was proceeded against ex-parte, no notice was sent to the opposite party that the complaint was fixed for that date. When the opposite party had no notice to appear on that date, it could not have been proceed against ex-parte.  That itself is a ground for setting aside the impugned order, which was passed exparte.

9.                In the result, the appeal is allowed, the order passed by the District Forum is set aside and the complaint is remanded back to the District Forum for deciding the same afresh by following the procedure laid down in the Act. The parties are directed to appear before it on 09.03.2015. Record of the District Forum be sent back immediately.

10.              The sum of Rs.25,000/- was deposited by the appellant on 05.12.2013. It deposited another sum of Rs.1,33,693/- in compliance of the order dated 20.01.2014. Both these amounts, along with interest which has accrued thereon, if any, shall be remitted by the registry to the appellant/opposite party by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to it.

11.              The appeal could not be decided within the statutory period due to heavy pendency of court cases.