Chandigarh

StateCommission

RP/7/2015

Google India Pvt. Ltd. - Complainant(s)

Versus

Naveen Singh Panwar - Opp.Party(s)

06 Apr 2015

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Revision Petition No.	:	07 of 2015
Date of Institution	:	01.04.2015
Date of Decision	:	06.04.2015

 

Google India Private Limited, Unitech Signature Tower-II, Tower B, Sector 15, Part-II, Village Silokhera, Gurgaon-122001.

…… Revision-Petitioner/Opposite Party No.2

 

V e r s u s

 

Naveen Singh Panwar, son of Sh. Satya Narayan Singh Panwar, House No.361, First Floor, Sector 11, Panchkula, Haryana.

…..Respondent/Complainant

 

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

         MR. DEV RAJ, MEMBER.

         MRS. PADMA PANDEY, MEMBER

 

Argued by:   Sh. Ajay Chauhan, Advocate for the Revision-Petitioner.

                    Sh.Kanwar Satbir Singh, Advocate for the respondent.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

              This Revision-Petition is directed against the order dated 02.01.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, Opposite Party No.2 (now Revision-Petitioner), was proceeded against exparte.

2.       The facts, in brief, are that, on 27.01.2014, the complainant purchased one mobile make – Google (LG) Nexus 5 D821=32 GB, from Opposite Party No.4, on payment of Rs.33,900/- vide cash memo dated 27.01.2014, Annexure C-1. It was stated that, in the month of September 2014, the said mobile handset, stopped working, and, as such, was taken to Opposite Party No.1, for repairs. It was further stated that the Service Engineer of Opposite Party No.1, declared the mobile handset, being water logged, and asked the complainant to pay a sum of Rs.19,000/-, towards  repair charges. It was further stated that the complainant requested the Opposite Parties, to repair the said mobile handset, free-of-cost, the same being under warranty period, but they refused to do so. It was further stated that legal notice dated 24.09.2014 Annexure C-3, was also served upon the Opposite Parties, in the matter, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking various reliefs. 
3.       Opposite Parties No.1, 3 and 4, in their joint written version, pleaded that the consumer complaint was not maintainable. It was stated that when the complainant visited the Service Centre of Opposite Party No.1, its Service Engineer inspected the said mobile handset and found it to be affected by water ingression, thereby leading to vitiation of the warranty terms and conditions. It was further stated that the complainant refused to get the said mobile handset repaired on payment basis, and never came back, thereafter. It was further stated that the complainant failed to produce, on record, any expert evidence, to prove that the said mobile handset suffered from any manufacturing defect. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1, 3 and 4, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4.       Despite deemed service, none put in appearance, on behalf of Opposite Party No.2,  before the District Forum, as a result whereof, it was  proceeded against exparte, vide order dated 02.01.2015 .
5.       Feeling aggrieved, the instant Revision-Petition, was filed by the Revision-Petitioner/Opposite Party No.2, against the order dated 02.01.2015 .
6.       We have heard the Counsel for the parties, and have gone through the record of the case, carefully.
7.       Sh. Ajay Chauhan, Counsel for the Revision-Petitioner/Opposite Party No.2, (Counsel engaged in the consumer complaint also) submitted that, no doubt, none put in appearance, on behalf of Opposite Party No.2, on 02.01.2015, in the District Forum, despite the fact that notice of the consumer complaint was received by it (Opposite Party No.2), as a result whereof, it was proceeded against exparte, on the said date, by it (District Forum). He further submitted that, notice of the complaint was received in the office of the Revision-Petitioner/ Opposite Party No.2, which was forwarded to him (Sh. Ajay Chauhan, Advocate), on 28.12.2014, to defend the same (consumer complaint). It was further submitted that, however, inadvertently, his (Sh. Ajay Chauhan, Advocate), Clerk, noted down the wrong date, as 02.02.2015, instead of the actual date i.e. 02.01.2015, as a result whereof, he (Sh. Ajay Chauhan, Advocate), could not put in appearance, in the said Forum, on that date, at the time, when the case was called. He further submitted that the said fact was discovered on 02.02.2015, when he appeared in the District Forum. He further submitted that his absence, on behalf of Opposite Party No.2, on the date fixed, was neither intentional, nor deliberate, but for the reasons, aforesaid. He further submitted that, in case, the order impugned is not set aside, and Opposite Party No.2/Revision-Petitioner, is not allowed to submit its written version, and furnish evidence, by way of affidavit(s),  irreparable injury is likely to occasion, to it (Revision-Petitioner/ Opposite Party No.2), as, in that event, it would be condemned unheard. He further submitted that, thus, the order of the District Forum, in proceeding exparte against Opposite Party No.2, is liable to be set aside, and the case deserves to the remanded back, to it, for fresh decision, after affording it an opportunity of filing the written version, and evidence, by way of affidavit(s).
8.           On the other hand, the Counsel for the respondent/complainant, submitted that  the absence of the Revision-Petitioner/Opposite Party No.2, on 02.01.2015, in the District Forum, was intentional and deliberate. He further submitted that, in the interest of justice, he had no objection if the impugned order is set aside, subject of payment of costs. 
9.           No doubt, perusal of the District Forum record, clearly reveals that Opposite Party No.2 (now Revision-Petitioner), was proceeded against exparte, on 02.01.2015, as none put in appearance, on that date (02.01.2015), on its (Opposite Party No.2), behalf, despite deemed service, yet, it is settled principle of law, that every lis should normally be decided, on merits, than by resorting to hyper-technicalities. When hyper-technicalities, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. In State of Punjab and another vs. Shamlal Murari & Anr., AIR 1976 SC 1177, the principle of law, laid down, was to the effect, that procedure, is, in the ultimate, handmaid of justice, and not its mistress and is meant to advance its cause, and not to obstruct the same. The procedural Rule, therefore, has to be liberally construed, and care must be taken, that so strict interpretation be not placed thereon, whereby, technicality may tend to triumph over justice. It has to be kept in mind, that an overly strict construction of procedural provisions, may result in the stifling of material evidence, of a party, even if, for adequate reasons, which may be beyond its control. We must always remember that procedural law, is not an obstruction, but an aid to justice. Procedural prescriptions are the hand-maid, and not the mistress, a lubricant, not a resistant, in the administration of justice. If the breach can be corrected, without injury to the just disposal of a case, regulatory requirement should not be enthroned into a dominant desideratum. The Courts and the quasi-Judicial Tribunals, have been set up, with the sole purpose of dispensing justice, and not to wreck the end result, on technicalities.
10.           No doubt, there was negligence, on the part of the Counsel for Revision-Petitioner/Opposite Party No.2, as he did not personally confirm/check the correct date (02.01.2015), which was mentioned, in the notice of the consumer complaint, sent by the District Forum, for appearance and filing written version and evidence, by way of affidavit(s). On the other hand, the said Counsel blindly relied upon his Clerk, who allegedly noted down the wrong date as 02.02.2015, instead of 02.01.2015. The Counsel concerned did not take pains, even to go through the notice as also the copies of complaint and documents, sent by the District Forum, to check the exact date of hearing. Since, the Counsel did not take the requisite measures, referred to above, negligence was attributable to him. It is also settled principle of law, that for the negligence or inadvertence of the Counsel, the party should not suffer. 
11.           In our considered opinion, an opportunity should be afforded to Opposite Party No. 2/Revision-Petitioner, for filing written version, and evidence, by way of affidavit(s), so that the complaint could be decided, on merits, and the rights of the Parties are finally determined, by one Forum, one way or the other. In this view of the matter, the order impugned is liable to be set aside.
12.           For, whatsoever, the reason may be, by not appearing, in the District Forum, on the date fixed, and not filing the written version, alongwith evidence, by way of affidavit(s), the Revision-Petitioner/Opposite Party No.2, certainly caused delay, in the disposal of complaint, on merits. According to Section 13 (3A) of the Act, endeavour should be made to decide the complaint, within three months, from the date of service of the Opposite Party(s), except the one, in which the goods are required to be sent to the Laboratory, for examination. In that event, endeavour should be made to decide the complaint, within a period of 5 months, from the date of service of the Opposite Party(s).  The complaint was filed, in the District Forum, on 19.11.2014. Since, the case is being remanded back, certainly delay shall be caused, in the disposal thereof. The Revision-Petitioner is, thus, required to be burdened with costs, for causing delay, in the disposal of complaint and to meet the ends of justice.
13.       For the reasons recorded above, the Revision-Petition is accepted. The order dated 02.01.2015, rendered by the District Forum, is set aside, subject to payment of costs of Rs.3,000/-, by the Revision-Petitioner/Opposite Party No.2, to the respondent/complainant. The District Forum shall grant only one reasonable opportunity, to the Revision-Petitioner/Opposite Party No.2,  for filing written reply, alongwith evidence, by way of affidavit(s), and, thereafter, decide the complaint, on merits, in accordance with the provisions of law. The payment of cost to the tune of Rs.3,000/-, to the respondent/complainant, shall be a condition precedent. In other words, the payment of cost, referred to above, shall be made, before filing the written reply, alongwith evidence, by way of affidavit(s).
14.       The parties are directed to appear, before District Forum (I) on 17.04.2015 at 10.30 A.M., for further proceedings.
15.       The District Forum record, alongwith a certified copy of the order, be sent back, to it, immediately, so as to reach there, well before the date and time fixed i.e. 17.04.2015 at 10.30 A.M.
16.           Certified Copies of this order, be sent to the parties, free of charge.
17.            The Revision-Petition file be consigned to the Record Room, after due completion.

Pronounced

06.04.2015

 

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

 (DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

 

Rg