Sri Utpal Kumar Bhattacharya, Member

Instant Appeal u/s 15 of the C.P Act, 1986 has been filed by the Appellant/OP challenging the judgment and order dated 30.09.2015 passed by the Ld. District Forum, South 24 Parganas in CC Case No.190/2015 allowing the complaint ex parte against the Appellant/OP with cost of Rs. 1,000/-.

The Appellant/OP was directed to replace the home theatre with a new one of same or better model of the same concern within one month from the date of the impugned judgment and order.

The Appellant/OP was further directed to pay compensation to the tune of Rs. 20,000/- for the harassment and mental agony that the Respondent/Complainant had to sustain because of the above mentioned deficiency on the part of the Appellant/OP. the cost and compensation were also directed to be paid within the same deadline.

In case of failure to comply with the above order within the given deadline, the Respondent/Complainant was given liberty to put the order into Execution and the Appellant/OP was further directed to pay Rs. 10,000/- as cost towards punitive damage to be deposited with the Consumer Legal Aid Fund.

The fact, in brief, leading to the instant controversy, was that the Respondent/Complainant had purchased one Sony Home Theatre System along with a Sony LCD TV on 26.03.2011 from the Fair Deal International (JS), Santoshpur Kolkata, the dealer, at a cost of Rs.16,500/-. The Respondent/Complainant faced problems with the home theatre after three months from the date of purchase and ultimately the set became completely inoperative within the period of warranty. The Respondent/Complainant’s request to replace the set was not heeded to by the Appellant/OP. The Respondent/Complainant, on expiry of the warranty period, paid the repairing charges and handed over the set to the service centre but the service centre failed to make the equipment operational. The Respondent/Complainant then handed over the set to the service centre but did not get back the same from the service centre. The aggrieved Respondent/Complainant then filed the Complaint Case which led to originate the judgment and order, under challenge in the instant Appeal.

The Appeal was heard ex parte against the Respondent/Complainant.

The Ld. Advocate appearing on behalf of the Appellant/OP submitted that the Appellant/OP could not represent its case before the Ld. District Forum as the case was heard ex parte in the said Forum against it. The Ld. Advocate informed the Bench that the notice of hearing was not served upon the Appellant/OP who came to know about the complaint Case only when the notice of execution on the strength of the impugned judgment and order was served upon him. As informed further, the notice of hearing of the Complaint Case was, in fact, served upon the dealer who, peculiarly enough, was not made a party.

Briefing the subject matter of the case, the Ld. Advocate pointed out that the defect was developed in the equipment, admittedly, after expiry of three months from the date of purchase.

As he continued there was no provision of taking back the sold goods which were functional and were apparently of no defect at the time of sale. The defects in such cases are unusually repaired against cost for the parts needed to be replaced. The Respondent/Complainant, as continued, was reluctant to appreciate the problem and pressed for replacement of the goods.

As he continued, the impugned judgment and order which was passed without allowing the Appellant/OP the scope to ventilate its contention, was having all the demerits for being set aside. He prayed for the case to be remanded to the Forum below for hearing the case on merit and passing a reasoned order.

Considered submission of the Ld. Advocate for the Appellant/OP and perused the papers available with the record. It appeared that the case was heard ex parte apparently for no fault on the part of the Appellant/OP as, what was put forward, the notice of hearing was not duly served upon it. Their claim remained uncontroverted due to non-participation of the Respondent/Complainant in the instant Appeal.

The Bench felt that the Appellant/OP should be given a scope to represent its case before making any adverse order which might prejudice its interest. Since the instant Appeal remained unrepresented by the Respondent/Complainant, the Bench observed in the similar lines that he should be given similar opportunity to take defence against any submission made before the Ld. District Forum by the Appellant/OP. In this context the Bench intended to place its reliance upon the observation of the Hon’ble Commission in First Appeal Nos. 718 and 761 of 2013 [Aditya Hospital and Anr.—Vs—Baby Vignesh and Anr.] reported in 2019 (2) CPR 321 (NC) wherein the Hon’ble Commission was pleased to observe that opportunity should be given to establish facts through cross-examination and for that purpose matter could be remanded.

Above being our observation, we are of the considered view that the instant case was a fit one to be remanded before the Ld. District Forum for hearing, allowing both sides the opportunity of being heard.

Hence,

Ordered

that the Appeal be and same is allowed in part. The case be remanded to the Ld. District Forum for the same being heard on merit and dispose of through passing a reasoned order.

Both sides are directed to appear before the Ld. District Forum on 30.07.2019.