SAMIKSHA BHATTACHARYA,  MEMBER 

The instant appeal has been directed by the appellant/complainant u/s C.P. Act, 2019 against the order dated 17.04.2023 in case No. CC/57/2023 passed by Ld. Consumer Disputes Redressal Commission, Kolkata-I (North).

Perused  the record. Let the appeal be admitted and registered.

Ld. Advocate for the appellant/complainant has submitted before us that on the date of admission hearing, none appeared on behalf of the complainant and the case was dismissed for non-prosecution. Therefore, he has prayed for setting aside the order dated 17.04.2023 passed by the Ld. DCDRC, Unit-I.

Ld. Advocate for the appellant/complainant has submitted that the Ld. DCDRC has not considered that the petition or  is a bona fide consumer and dismissed the case before admission within the statutory period.  The Ld. Advocate has further submitted that the Ld. Commission ought to give the appellant/complainant  an opportunity so that the complainant may take necessary steps.

Upon perusal of the materials on record, it appears that Ld. Commission dismissed the complaint case due to non-prosecution.  The order dated 17.04.2023 is reproduced as under:

 “Dated:17 April 2023

Order No.02

Neither the complainant nor his Ld. Advocate is present on repeated calls.

It is now 11:55 A.M.

Put up the record later.

Later-

 Contd. Order No.08 dated 17/04/2023

Record is put up again.

None appears on behalf of the complainant.

It is now 12:55 P.M.

It seems that complainant is not interested to proceed with the complaint case.

          Hence,

        it is       

                                                                ORDERED

 that the complaint case be and the same is dismissed for non-prosecution without cost.”

Being aggrieved  by and dissatisfied with the  above order, the complaiant/appellant has filed the instant Appeal. 

On the date of hearing, Ld. Advocate for the appellant/complainant could not present due to scorching heat as he felt unwell.  We are in the view that the litigant/complainant should not suffer for the technical ground.  The reason for non-appearance is bona fide.  Therefore, we are in view that complainant should be given an opportunity such that her case would be adjudicated properly.  Though the Act stipulates a period for disposing the complaint but the complaints cannot be disposed of due to non-availability of resources and infrastructure.  In this regard, we can cite the judgement passed by the Hon’ble Apex Court in Civil Appeal No. 4767/2019 (Vibha Bakshi Gokhale & Anr. – Vs. – M/s Gruhashilp Constructions & Ors.) in which Hon’ble Apex Court has observed that the ground for rejection is technical and in disregard in requirement of the substantial justice.  The Hon’ble Court has also observed that “It is harsh to penalise a bona fide litigant for marginal delays that may occur in judicial process.  The Consumer Fora should bear this in mind so that the ends of justice are not defeated”. 

In the instant case due to non-appearance of the complainant or her representative, the case was dismissed on the very first day i.e., on 17.04.2023, which date was fixed for admission  hearing the complainant has chosen her Advocate and she  has given him power with full faith that the Ld. Advocate would represent her case properly. But on the very  first day due  to absence of the Ld. Advocate the case was dism8issed for non-prosecution with  observation that the complainant  is not interested   to proceed with the complaint case.  We think the litigant  should not suffer for the  act of the Advocate.

Considering the facts and circumstances and keeping in view of the word “protection” in the Act, we think that it would be just and proper to give the complainant/appellant an opportunity to proceed with the case to ventilate her grievance if the complaint case is admitted.  The complaint should not be dismissed due to mere technical reasons.

Accordingly, we allow the appeal and set aside the judgement/order dated 17.04.2023 passed by the Ld. District Commission concerned for finality of litigation as well as to give better service to the consumer.

Accordingly, the impugned order dated 17.04.2023 passed  by the Ld. DCDRC, Kolkata Unit-I is hereby set aside.

The Ld. Commission is directed to restore the complaint case being No. CC/57/2023 to its original file and number and the Ld. Commission is requested to fix the date for admission hearing after the date of appearance of the complainant.  Since the complaint case has not been admitted, the Ld. Commission is requested to fix the date for admission hearing first and if the case is admitted, then the Ld. Commission shall proceed as per law and Ld. District Commission is further requested if the case is admitted, the case should be disposed of preferably within three months. 

However, it is pertinent to mention that on each and every date fixed by the Ld. District  Commission, the complainant or her Ld. Advocate or her authorised representative must be present otherwise this order of restoration should be vacated automatically.

Fix 10.07.2023 for appearance of the complainant before the Ld. Commission for receiving further direction.

The instant Appeal is allowed and  disposed of accordingly.

Let a copy be sent to the  Ld.  District Commission, Kolkata Unit-1 (North)  by this office.