ORDER

Per: Mr. D.K. Tyagi, Member:

            This appeal is directed against the impugned judgment and order dated 04.01.2010 passed by the District Consumer Disputes Redressal Forum, Udhamsingh Nagar in consumer complaint No. 59 of 2009; M/s Raj Medicos vs. M/s Garg Transport Company. By the impugned order, the District Forum has allowed the consumer complaint ex-parte against the appellant-opposite party and directed the opposite party to pay a sum of Rs. 16,000/- cost of material, Rs. 270/- freight and         Rs. 5,000/- towards mental and business loss, total sum of Rs. 21,270/-, from 25.07.2006 till the date of payment together with interest @ 7% per annum simple interest alongwith Rs. 500/- as cost of litigation.

2.       Briefly stated the facts of the case as mentioned in the consumer complaint are that the complainant-M/s Raj Medicos deals with wholesale business of medicines and some medicines are supplied to him by Biological E. Ltd. Shriram Palace, Near Naveen Mandigate, Meerut and Goods Agency, Meerut (U.P.). On 25.07.2006, the complainant booked four packets of medicines having weight of 40 Kgs. for a sum of Rs. 16,000/- to the opposite party-Garg Transport Company, Khatima for Biological E. Ltd. Shriram Palace, Near Naveen Mandigate, Meerut, for which the opposite party issued a bilty to the complainant having GR No. 2163.  The complainant paid Rs. 270/- towards cost of freight to the opposite party. All the four packets of medicines were never reached to the Biological E. Ltd. Shriram Palace, Near Naveen Mandigate, Meerut and Goods Agency, Meerut (U.P.).  On 26.05.2007, the Biological E. Ltd. Shriram Palace, Meerut intimated the complainant in writing that the said luggage (four packets) has not reached to the destination. The complainant enquired about the luggage from the opposite party, but all went in vain. Thereafter, complainant sent a notice to the opposite party through Sh. R.S. Dangi, Advocate, Khatima on 10.10.2008, which was neither replied by the opposite party to the complainant, nor luggage was reached to its destination.  Again on 02.03.2009, the complainant sent another legal notice to the opposite party through Sh. Bharat Pandey, Advocate, Khatima, which was also not replied by the opposite party.  The complainant has suffered economic and mental loss due to not reaching four packets of medicines to Biological E. Ltd. Shriram Palace, Meerut and has also suffered its business goodwill, for which the opposite party is liable to pay compensation. By the act of the opposite party by not sending the packets of medicines to the destination at Biological E. Ltd. Shriram Palace, Meerut, the opposite party is deficient in service.  There is deficiency in service on the part of the opposite party.  The cost of the four packets of medicines was Rs. 16,000/-, freight of luggage was Rs. 270/- and compensation on the ground of mental agony is Rs. 40,000/-, compensation on account of loss of business is Rs. 40,000/- and, therefore, the complainant claimed Rs. 96,270/- with interest against the opposite party.  The cause of action arose on 25.07.2006 when the complainant booked four packets of medicines to Biological E. Ltd. Shriram Palace, Meerut and again on 26.05.2007 when Biological E. Ltd. Shriram Palace, Meerut informed the complainant that they had not received the four packets of medicines so far.

3.       The District Forum issued notice to the opposite party-appellant, but the appellant after sufficient service did not appear before the District Forum and as such, the District Forum vide order dated 06.10.2009 proceeded the consumer complaint ex-parte against the opposite party-appellant and decided the same vide impugned judgment and order dated 04.01.2010 in the above terms. Aggrieved by the said order, the opposite party-appellant has filed this appeal.

4.       We have heard learned counsel for the parties and have also perused the record.  It appears from the judgment and order that before the District Forum, the consumer complaint was proceeded ex-parte against the appellant. The appellant did not file any written statement before the District Forum against the consumer complaint filed by the respondent.  It is a settled principle of law that all the parties involved in the matter in question should get proper opportunity of being heard.

5.       We have noticed that the appellant could not file written statement before the District Forum and the District Forum did not give opportunity to the appellant for adducing evidence on affidavit and disposed of the consumer complaint merely on the basis of the pleadings of respondent only, which is contrary to the principle of natural justice. The Hon’ble Apex Court in the case of Topline Shoes Ltd. Vs. Corporation Bank; II (2002) CPJ 7 (SC), has observed that “it is for the Forum or the Commission to consider all facts and circumstances along with the provisions of the Act providing time frame to file reply, as a guideline, and then to exercise its discretion as best it may serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind the principle of natural justice as well.”

6        In view of the Hon’ble Apex Court’s decision, we are unable to sustain the order passed by the District Forum and set aside the same.

7.       The Hon’ble National Commission in the case of Mathura Mahto Mistry Vs. Bindeshwar Jha (Dr.) and another; I (2008) CPJ 109 (NC), has held that disposing of the complaint simply on pleadings without directing the parties to file evidence by way of affidavits is illegal on the face of it.  The Hon’ble National Commission in the aforesaid judgment has also held that “moreover without adducing evidence, both the parties obviously did not get an opportunity to prove their respective case, in view of which, we are unable to sustain the order passed by the District Forum, which is set aside and the case is remanded back to the Forum below to give an opportunity to both the parties to lead evidence by way of affidavits and also permit cross-examination through questionnaire and reply and only after completion of all the necessary procedure as per law, the District Forum shall hear the case on merit and dispose it of preferably within a period of three months from the date of receipt of this order.”

8.       Thus, we are of the view that the consumer complaint be decided on its own merit.  Therefore, we set aside the ex-parte judgment and order dated 04.01.2010 passed by the District Forum, Udhamsingh Nagar, subject to the costs of Rs. 1,000/-, which shall be paid by the applicant to respondent and remanded back the matter to the District Forum to decide the case on its own merit. The appellant shall file their written statement before the District Forum on or before 11.04.2016 positively and thereafter the District Forum shall afford a reasonable opportunity to the parties to adduce evidence in support of their case.  The District Forum shall take all sort of endeavour to decide the consumer complaint as early as possible and preferably within a period of three months from the date of filing the written statement by the appellant.

9.       With the aforesaid direction, the appeal is allowed.  Copy of the order be sent to the District Forum, Udhamsingh Nagar immediately.  No order as to costs.  The amount deposited by the appellant as statutory amount at the time of filing the appeal be released in favour of the appellant.