THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH).
DATED THIS THE 23rd DAY OF JUNE 2021
PRESENT
SRI RAVI SHANKAR – JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI - MEMBER
APPEAL NO. 850/2020
Gayathri Shenoy,
S/o Basti Sadashiva Shenoy,
Aged about 40 years,
Proprietor, G.P.S.Enterprises,
Ram Nagar Bypass Road,
Kashi Math Lane,
Bantwala, Mangaluru.
……….Appellants.
(By Shri/Smt. Shravan Madhav K.P., Adv.,)
-Versus-
Authorized Signatory,
Asian Marketing,
Shop No.14, Block – 1,
HMS Shopping Complex,
Ashoka Road, Tumkur.
Pin Code – 572 101.
:ORDERS ON ADMISSION:
BY SMT. SUNITA C. BAGEWADI - MEMBER
This appeal is filed by the appellant/complainant being aggrieved by the order dated:23.01.2020 passed by Dakshina Kannada District Consumer Commission in C.C.No.163/2019.
2. The parties to the appeal shall be referred to as complainant and Opposite Parties respectively as per their rankings before the District Commission.
3. The brief facts of the complaint is that:-
The complainant is self-employed and is running a business in name and style “GPS Enterprises” and she is regular customer of the respondent/Opposite Party. The complainant had placed order for supply of Candylake products from the Opposite Party on 02.02.2018 vide Tax Invoice No.88 for a sum of Rs.2,99,891/- and on 07/03/2018 vide Tax Invoice No.13 for a sum of Rs.2,00,087/- including all taxes. The complainant further submitted that in furtherance of the above mentioned purchase order, it is found on verification of the products that the maximum products of Candylake delivered by the Opposite Party/respondent were time barred (expired). The complainant immediately informed to the Opposite Party either replace the expired Candylake products or return the amount of the expired Candylake products as supplied by the respondent. After several correspondences, the Opposite Party finally agreed to collect the aforesaid expired Candylake products to their Agency through VRL Logistics Ltd after three months from the date of delivery.
3(a) The complainant further submitted that believing the words of the Opposite Party, the complainant immediately returned the expired Candylake products on 11.07.2018 along with generated debit bill for a sum of Rs.1,33,825.04 through VRL Logistic Ltd. to the Opposite Party Agency. Further, after a few days, the appellant came to know through the VRL office that the respondent has not collected the returned goods from the office even though they were intimated by the concerned office. After having come to know the said fact, the appellant/complainant informed to the respondent to collect the expired Candylake products from the VRL office at Tumkur. The complainant further submitted that the respondent collected the expired products from VRL office at Tumkur and due to the said negligence of the Opposite Party, VRL Logistics Authority had claimed demurrage charges of Rs.6,000/- for having kept those consignments in their godown from 11.07.2018 to 17.08.2018 and said amount was paid by the appellant to the VRL office, Tumkur for releasing the goods to the respondent.
3(b) The complainant further submitted that at the time of return the aforesaid expired Candylake products, the Opposite Party had assured the complainant that they will either pay the aforesaid debit bill amount or replace the expired products within one month from the date of delivery of the goods. Despite receiving the expired Candylake products, the Opposite Party again failed to adhere to its promise to the appellant despite repeated requests from the appellant. The complainant further submitted that she issued a legal notice dated:03.07.2019 calling upon the respondent to pay the complainant a sum of Rs.1,39,825.04 including demurrage charges of Rs.6,000/- paid by the complainant to VRL Logistics together with interest @ 24% PA or replace the Candylake products within 15 days from the date of receipt of the notice. Despite receipt of the notice, the Opposite Party failed to adhere to the demands of the appellant. Hence, the complaint.
4. After hearing on admission and during the proceedings, the District Commission dismissed the complaint for non prosecution.
5. Being aggrieved by the said order, the appellant/complainant is in appeal on various grounds.
6. Heard argument of appellant on admission.
7. After perusal of the appeal memo and order sheet of District Commission, Dakshina Kannada and considering the submissions of the Advocate for appellant, we noticed that the District Commission, Dakshina Kannada on 11.09.2019 admitted the matter and issued notice to the Opposite Party on the same day. Subsequently, the Opposite Party appeared through his Advocate on 10.10.2019 and prays time to file version. On 06.11.2019, the Opposite Party filed his version and case was posted for evidence affidavit of complainant on 19/12/2019. Thereafter the District commission posted the case on 07.01.2020, 21.01.2020 as last chance and then on 23.01.2020 dismissed the complaint for non-prosecution since the complainant was absent.
8. The advocate for complainant submitted in his written argument that having come to know about the dismissal order, the complainant’s counsel filed an application on the same day before the District Commission for recall of the order. However, the Hon’ble Member of the District Commission was reluctant to take on record the application for recall the order. The Advocate for appellant/complainant further submitted that, inadvertence on the part of the appellant may be condoned and it is fit case for remand the matter by setting aside the order of dismissal of the complaint. Moreover, there is a delay of 16 days in filing the appeal and he has filed the delay condonation application along with affidavit.
9. Keeping in view of reasons assigned in the appeal memo and submission of counsel for complainant/appellant and looking to the order sheet, we noticed that the District Commission, Dakshina Kannada has granted four opportunities to the complainant i.e. on 07.01.2020, 21.01.2020 and on 23.01.2020 and even the District Commission called the case on second time on 23.01.2020 at 1.55 PM, but the complainant not filed his evidence affidavit. It clearly shows that the complainant was so negligent in filing the affidavit evidence. The complainant also not provided any valid reasons before the District Commission for not filing the evidence affidavit in time. Hence, the District Commission dismissed the complaint for non prosecution on 23.01.2020.
10. Moreover, the appellant/complainant filed an application for recall the dismissal order on the same day before the District Commission can be considered sympathetically to meet the ends of justice since she preferred the appeal showing his inability to submit evidence affidavit before the District Commission. In view of our consideration, to protect the interest of Consumer, an opportunity of being heard must be give to file her evidence affidavit to prove her case and seek relief in accordance with law by allowing the delay condonation application. Accordingly,
:ORDER:
The appeal filed by the appellant/complainant is allowed with no order as to costs.
The order dated:23/01/2020 passed by Dakshina Kannada District Consumer Commission in C.C.No.163/2019 is hereby set-aside.
The matter is remanded back to the District Commission with a direction to restore the matter at its original number and provide an opportunity to the complainant to file her affidavit evidence and then disposed of the matter within three months from the date of receipt of this order in accordance with law.
Send a copy of this order to both parties as well as Concerned District Commission.
Sd/- Sd/-
Member. Judicial Member.
Tss
