SAMIKSHA BHATTACHARYA,  MEMBER 

The instant Appeal has been directed by the appellant/complainant under Section 41 of the CP Act, 2019 against the order dated 27.12.2021  in case No. CC/79/2021 passed by the Ld. District Commission, Kolkata Unit-III (south).

On the date final hearing, only the Ld. Advocate  for the appellant/complainant was present. None appeared on behalf of the respondent/OPs.

We have gone through the impugned order dated 27.12.2021.  It appears that on 27.12.2021 due to the absence of the complainant, the case was dismissed for default.

Being aggrieved by and dissatisfied with the said order, the appellant/complainant  has filed the instant appeal.

Ld. Advocate for the appellant/complainant has submitted that the Ld. District Commission has  failed to consider that non-appearance was not made intentionally made by the complainant/appellant and the physical hearing of the courts were also at a pause and the Ld. Advocate for the complainant had no access to online mode of hearing. As a result,  proper tracking of the mater could not be done properly. The facts and circumstances  were beyond the control of the complainant and not owing to any default negligence or laches on the part of the complainant or his Advocate.

On the date of hearing, the Ld. Advocate for the appellant/complainant has  further submitted before this Commission  that due to Covid–19 pandemic situation, he could not attend the court and the case was dismissed for default for his absence and he  has prayed for setting aside the impugned order.

Upon hearing the Ld. Advocate for the appellant/complainant and on perusal of  the entire materials on record, we are of considered view  that  the complainant should be given an opportunity such that his 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 Bakhi Gokhale&Anr. – Vs. – Ms. 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 “It is harsh to penalise a bonafide 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”.

We can also cite the judgment passed by Hon’ble Apex Court  in Rafiq & Anr. Vs. Munshilal & Anr. Where the Hon’ble Apex Court held that “The problem that agitations  are whether it is proper that the party should suffer for the inaction, deliberate  omission or misdemeanour of his agent. The answer obviously is in the negative. May be that the  Ld. Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of matter. We say nothing more on that aspect of matter. However, we cannot be a party to an innocent party suffering injustice nearly because his chosen  Advocate defaulted.”

In the case in hand, the Ld. Advocate could not appear before the Ld. District Commission due to his illness.

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 his grievance. The complaint should not be dismissed due to mere technical reasons.

In view of above discussion, we allow the appeal and set aside the judgement/order dated 27.12.2021passed by the Ld. Commission for finality of litigation as well as to give better service to the consumer.

Accordingly, the impugned order dated 27.12.2021, passed  by the Ld. DCDRC is hereby set aside.

The Ld. Commission is directed to restore the complaint case being No. CC/79/2021 to its original file and number and the Ld. District Commission is requested to proceed with the case as per law and dispose of the case as expeditiously as possible. 

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

The complainant is hereby directed to send a copy of this order to the OPs for their information.

Fix 08.12.2023 for appearance of the parties before the Ld. District Commission for receiving further direction.

To date for filing affidavit of service in respect of the OPs/respondents by the  complainant.

The  instant Appeal is disposed of accordingly.

Let a copy be sent to the concerned Ld.  District Commission by this office at once.