STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Revision Petition No. | : | 12 of 2012 |
Date of Institution | : | 18.12.2012 |
Date of Decision | : | 21.01.2013 |
Floor Square (A Venture of Paradise Decorator (P) Ltd.) SCO No.151-152, 1st Floor, Sector 8C, Chandigarh, through its Managing Director-cum-Proprietor
…… Revision Petitioner/ Opposite Party
V e r s u s
Sanawar Montessori School, Sector 11, Chandigarh, through its Principal Ms. Harjit Sehgal.
....Respondent/complainant
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Gaurav Bhardwaj, Advocate for the Revision Petitioner
Sh. R.K. Sehgal, Advocate for the respondent.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT
This Revision-Petition is directed against the order dated 19.11.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, the Opposite Party/now Revision Petitioner, was proceeded against exparte and the consequent order dated 14.12.2012, vide which the application, filed by it (Opposite Party/Revision Petitioner), for setting aside the exparte order aforesaid, was dismissed, on the ground, that it (District Forum), was not vested with the power, to review/recall its own order.
2. The facts, in brief, of the Consumer Complaint are that, the complainant/respondent school is upto 5th standard. The complainant School decided to raise the construction of building upto 1st floor, and, subsequently, site plan was got sanctioned. Through internet search, the complainant School came to know about Garware Sun Control Blue Reflective Film. The complainant School also came to know that the Opposite Party, was providing services of fixing Garware Sun Control Blue Reflective Film and decoration. Accordingly, the representative of the Opposite Party, was asked to visit the complainant School and apprise the authorities, about the pros & cons of fixation of Garware Sun Control Blue Reflective Film, on payment, as also the period for execution, required to complete the job etc.
3. On 30.06.2012, the representative of the Opposite Party, visited the complainant School, to discuss the details and also to take measurement of the area, on which work was to be done. The representative of the Opposite Party, also told the School authorities, that the aforesaid film shall provide relief to the complainant School, from sunlight and heat inside, particularly, in the reception area. On verbal assurance of the representative of the Opposite Party, the authorities of the complainant School, agreed for the fixation of Garware Sun Control Blue Reflective Film, in the areas, in question. On the basis of the estimate, given by the Opposite Party, the complainant School agreed to pay only Rs.11,000/- in advance, against the full payment of the estimated cost of the material, labour etc. The Opposite Party, after completion of the work, submitted bill for Rs.16,750/- inclusive of labour charges etc. Since a sum of Rs.11,000/-, had already been given, in advance, to the Opposite Party, the balance amount was paid, in cash, on 21.07.2012.
4. It was stated that the Opposite Party, wrongly calculated the area of fixation of film, aforesaid, i.e. 355 sq. feet, instead of 300 sq. feet. The representative of the Opposite Party, told the authorities of the complainant School that after fixing of the said film, in the said areas, there would be no complaint, with regard to the work executed, as also, there would be no leakage. It was brought to the notice of the Opposite Party that, while executing the film fixing job, the person who was deputed for the purpose, removed the material known as silicon, for fixing glass, and there was apprehension of leakage at that spot. It was further stated that despite warning, the Opposite Party did not repair it, and assured that, in case, leakage was there, the same could be repaired.
5. It was further stated that while carrying out the work of fixing the film, aforesaid carelessly, the glasses, which were already fixed, in these areas, with silicon material were removed. It was further stated that the authorities of the complainant School approached the Opposite Party, through telephone, a number of times, since August 2012, and, brought the defects to its notice, but to no avail. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant School, 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, directing the Opposite Party, to refund the cost of the film aforesaid i.e. Rs.16,750/- alongwith interest @18% P.A., till realization; pay compensation, in the sum of Rs.40,000, for mental agony and physical harassment, as also destroying the decoration, inside the School reception area, due to leakage, in the film affixed by it; and cost of litigation, to the tune of Rs.33,000/-.
6. Notice of the complaint was given to the Opposite Party, for 19.11.2012, upon which, a report of the Process Server was received that Mr. Umesh, the Boss met him, but he refused to accept the service of the same.
7. Since, none appeared, on behalf of the Opposite Party, the District Forum proceeded against it exparte on 19.11.2012. Later on, an application for setting aside the exparte order dated 19.11.2012, was filed by the Opposite Party, which was dismissed on 14.12.2012, by the District Forum, holding that it (District Forum), was not vested with the power, to review/recall its own order.
8. Feeling aggrieved, the instant Revision Petition, was filed by the Revision Petitioner/Opposite Party.
9. We have heard the Counsel for the parties and, have gone through the record of the case, carefully.
10. The Counsel for the Revision-Petitioner/Opposite Party, submitted that, no representative or Boss of the Opposite Party/Revision Petitioner, refused to accept the service of summons. He further submitted that, Mr. Umesh, whose name was mentioned by the Process Server, in his report, was out of station, on that date. He further submitted that the absence of the representative of the Opposite Party/Revision Petitioner on 19.11.2012 was not intentional and deliberate. He further submitted that, in case, the exparte order dated 19.11.2012 and the order dated 14.12.2012, were not set aside, miscarriage of justice shall occasion, as, in that event, the Revision Petitioner/Opposite Party, shall be condemned unheard. He further submitted that the orders of the District Forum, being illegal and invalid, are liable to be set aside.
11. On the other hand, the Counsel for the respondent/complainant, submitted that the report of the Process Server that Mr. Umesh met him, who was the Boss of the Opposite Party and refused to accept the service of the summons, is correct. He further submitted that since the Boss of the Opposite Party, refused to accept the service of the summons, and, none appeared on its (Opposite Party) behalf, on 19.11.2012, there was therefore, no alternative with the District Forum, than to proceed against it (Opposite Party), exparte. He further submitted that the orders dated 19.11.2012 and 14.12.2012 of the District Forum, being legal and valid, are liable to be upheld.
12. No doubt, notice of the complaint vide order dated 25.10.2011, was ordered to be sent to the Opposite Party, for 19.11.2012, which was for a period of less than thirty days, and, as such, contrary to the provisions of Regulation 10 of the Consumer Protection Regulations 2005. Even, no reason was recorded in the order dated 25.10.2011, for issuance of notice for the service of the Opposite Party, for a period of less than 30 days, as prescribed by Regulation 10 ibid. Report was made by the Process Server on 10.11.2012, that he went to serve the summons, on the Opposite Party, where Mr. Umesh, its Boss, met him, but he refused to accept the service of the same. However, this report of refusal, was not got attested from any person from the neighbourhood. Even the affidavit, appended by the Process Server, on this report, is not, in accordance with law. It is settled principle of law, that every lis, should normally be decided, on merits, than by resorting to hypertechnicalities. In case, the impugned orders are not set aside, an irreparable injury is likely to occasion to the Revision Petitioner/Opposite Party, as, in that event, it would be condemned unheard.
13. 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 handmade of justice and not its mistress and is meant to advance its cause, and not to obstruct the same. The procedural Rules, therefore, have 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. Further the object of all the Courts and Tribunals is to do justice, and not to wreck the end result on technicalities.
14. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. No injustice shall occasion to the complainant/respondent, in case, the exparte order dated 19.11.2012 and the consequent order dated 14.12.2012 are set aside, and an opportunity is granted to the Opposite Party, to submit its written version, alongwith evidence, by way of affidavit(s), so that the dispute, could be decided, on merits, one way or the other, by one Forum. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. When the procedural wrangles, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. The District Forum failed to exercise the Jurisdiction vested in it, on sound Judicial principles. The orders impugned, thus, suffer from Jurisdictional error, and are liable to be set aside.
15. No doubt, somewhat delay has been caused, in the disposal of the complaint, on merits, on account of non-appearance of the representative of the Opposite Party, on 19.11.2012, the date fixed in the complaint. For causing somewhat delay, in the disposal of the complaint, the Opposite Party/Revision Petitioner, is required to be burdened with costs. Accordingly, the Revision Petitioner/Opposite Party, is burdened with costs of Rs.1500/-.
16. No other point, was urged, by the Counsel for the parties.
17. For the reasons recorded above, the Revision Petition is accepted. The orders dated 19.11.2012 and 14.12.2012, rendered by the District Forum, are set aside, subject to payment of costs of Rs.1500/-, by the Revision Petitioner/Opposite Party, to the complainant/ respondent. The District Forum is directed to grant one date to the Opposite Party/Revision Petitioner, to file its written version, alongwith evidence, by way of affidavit(s), and then decide the complaint, in accordance with the provisions of law. The payment of costs to the complainant/respondent, shall be a condition precedent. In other words, the payment of costs, shall be made, before filing the written reply, alongwith evidence, by way of affidavit(s).
18. The parties are directed to appear, before the District Forum (I) on 31.01.2013, at 10.30 A.M., for further proceedings.
19. 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. 31.01.2013, at 10.30 A.M.
20. Certified Copies of this order, be sent to the parties, free of charge.
21. The Revision Petition file be consigned to the Record Room, after due completion.
Pronounced.
January 21, 2013
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[NEENA SANDHU]
MEMBER
Rg
