ORDER

Per: Mrs. Veena Sharma, Member:

            This is an appeal under Section 15 of the Consumer Protection Act, 1986  against the order dated 02.02.2015 passed by the District Forum, Dehradun in consumer complaint No. 43 of 2013.  By the impugned order, the District Forum has allowed the consumer complaint ex-parte against the appellant-opposite party and directed him to pay a sum of Rs. 50,000/- towards advance amount,             Rs. 7,50,000/- paid amount, Rs. 25,000/- as compensation and Rs. 5,000/- for litigation expenses to the complainant, within one month from the date of order, failing which the complainant shall be entitled to get interest @ 8% per annum on the total amount from the date of order till the date of payment.

2.       Briefly stated the facts of the case as mentioned in the consumer complaint are that an agreement dated 09.08.2011 signed by the complainant and the opposite party between them.  The complainant had engaged the opposite party not only to renovate a Tin posh house, but to construct it afresh and the opposite party agreed to take up the work.  To renovate and construction of the house in question, the opposite party agreed to undertake the work with a material rate list.  Under the said agreement, the complainant and the opposite party had agreed to complete the work in Rs. 6,50,000/- as the entire construction cost including labour and material charges of the said house. As the construction work began to progress, the opposite party under one pretext or the other kept demanding more and more money from the complainant and the complainant used to pay the opposite party from time to time believing him to be genuinely carrying on the construction of his house and, thus, extracted Rs. 7,50,000/- from the complainant more than what was initially agreed under the agreement.  The opposite party, not only leaving the construction of the house incomplete, had also used substandard building material in the construction of house, which had also resulted in leakage and seepage rendering the house unfit for human dwelling. The opposite party had left the construction of house halfway and incomplete and abruptly stopped the work in March, 2012 to the great dismay of the complainant. The complainant requested the opposite party to complete and to finish the work, but the opposite party flatly refused to complete the work. In the circumstances, the opposite party had not only committed breach the agreement, but also cheated the complainant, which has resulted in great mental and physical pain to the complainant and his family. There is deficiency in service of the opposite party obliged to provide to the complainant in the construction of his house.

3.       The District Forum issued notice to the opposite party-appellant, but he did not appear before the District Forum and as such, the District Forum vide order dated 26.08.2014 proceeded the consumer complaint ex-parte against the opposite party and decided the same vide impugned judgment and order dated 02.02.2015 in the above terms and has directed the opposite party to pay a sum of               Rs. 8,30,000/- to the complainant.  Aggrieved by the said order, the appellant has filed this appeal.

4.       In the appeal, it is alleged that summon was not received by the opposite party-appellant, but the District Forum has proceeded the consumer complaint ex-parte against the opposite party on 26.08.2014. It is also against the provision of Section 14(2) of the Consumer Protection Act, 1986 that the proceeding of the Forum could not conduct, if the Coram is incomplete. Section 14 (2) of the Consumer Protection Act, 1986 read as follows:-

14 (2) Every proceeding referred to in sub-section (1) shall be conducted by the President of the District Forum and at least one member thereof sitting together: 

On 30.04.2013 only one member was present. In absence of President and other member of the Forum, no order can be passed, but the District Forum did not consider it and the District Forum deemed the service sufficient.  By perusal of order sheet of the District Forum, it is evident that on 30.04.2013 the order sheet had been signed by only one member.  So until the Coram is not complete, no order can be passed.

5.       We have heard learned counsel for the parties and have also perused the record.  It appears from the judgment and order dated 02.02.2015 that before the District Forum, the consumer complaint 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.

6.       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 the 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.”

7        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.

8.       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.”

9.       Thus, we feel it just and proper to remand the case to the District Forum for decision afresh in accordance with law.  The appellant shall file their written statement before the District Forum on or before 08.03.2016 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.

10.     With the aforesaid observations, the appeal is allowed.  Impugned judgment and order dated 02.02.2015 passed by the District Forum, Dehradun is set aside and the case is remanded back to the District Forum for decision afresh in accordance with law.  The appellant is directed to file their written statement before the District Forum on or before 08.03.2016 positively and thereafter the District Forum shall grant reasonable opportunity to the parties to adduce evidence in support of their case. The District Forum is further directed to decide the consumer complaint expeditiously and preferably within a period of three months from the date of filing the written statement by the appellant. It is made clear that the District Forum shall not grant any adjournment to the appellant seeking time for filing the written statement. Copy of the order be sent to the District Forum, Dehradun 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.