State Consumer Disputes Redressal Commission
Andaman & Nicobar Islands
Port Blair
Present : Justice Arunabha Basu, President .
Smti Biji Thomas, Member.
Shri Basudev Dass, Member.
Appeal No.01 of 2011
M/s Indian Air Lines, 113, Gurudwara Rakab Gunj Road
New Delhi & Another
….. Appellants/Opposite Parties
vs
Shri B.C. Banerjee,S/o Late Manoranjan Banerjee
R/o. Prem Nagar,Port Blair.
….Respondent /Complainant
Order No. 8
Dated: 24.01.2012
Heard Ld. Advocate for the appellant. Affidavit of service filed. Same be kept with record. On perusal of Affidavit of service VIS- a- VIS the endorsement recorded on the Envelope it appears that the respondent hearin as per the report has shifted his residence. It is clearly recited in the Affidavit of the service that the notice was sent to the last known address of the respondent/complainant before the District Forum. Ld. Advocate for the appellant submitted that copies of the order passed by the District Forum and filed during the appeal show that respondent has in his capacity as complainant all along contesting the application filed by him.
In complaint filed under section 12 of Consumer Protection Act 1986 his address is recorded as a residence of Prem Nagar, Port Blair, and complainant did not file any application before the District Forum to record his change of address. In terms of provision under section 28(A) of Act the procedure as to service of notice to prescribed. For the present purpose sub section 4 of section 28(A) is relevant which runs as follows
All notices required to be served on an opposite party or to complainant shall be deemed to be sufficiently served, if addressed in the case of the opposite party to the place where business or profession is carried and incase of complainant, the place where such person actually and voluntarily resides.
Under thesse circumstances inspite of endorsement recorded in the envelope we are of the view that notice is duly served upon the respondent as notice was sent to the last known address of the respondent and as inspite of contesting the case before the Forum he has not filled any application intimating his change of address if any. Under this circumstances service of notice is accepted.
We have taken the appeal for hearing. Ld. Advocate for the appellant drew our attention that crucial evidence as permitted by the Forum was not allowed to be adduced due to no fault of the appellant and in the given circumstances of the case such rejection was not justified. Respondent was already allowed the application for examination of a doctor so that necessary medical evidence could be adduced by the respondent before the Forum. There was no latches on the part of the respondent to ensure the appearance of the witness. In fact respondent filed necessary requisite but the same was not issued by the Forum. Unless the notice is issued and served upon the witness, the respondent was not in a position to ensure the appearance as the respondent has no control over the said witness.
Ld. Advocate for the appellant rightly pointed out the Ld. Forum while passing the order under which evidence by the respondent was closed failed to take notice about the grounds mentioned in application dated 09.03.11 filed by the respondent seeking adjournment of the hearing. We are in agreement with the submission of Ld. Advocate for the appellant as we find that it is clearly recited in the application seeking adjournment that notice was not issued inspite of filling requisites by the respondent. In our view the Forum was some what hasty in rejecting the application there by depriving the respondent to adduce necessary evidence in support of his contention. Considering the fact in the complaint and the stand taken by the respondent in defending his stand, we are of the view that medical evidence which was already allowed to be adduced by the Forum was necessary and as a consequence there off, we are of the opinion to set aside the order passed by the Forum rejecting the application filled by the respondent and closing evidence. In view of our discussion we have no other option but to set aside the order dated 09.03.11 in which the Forum rejected the application of the respondent and fixed the date for arguments after closing the evidence. In the result appeal succeeds.
Hence:
It is ordered
The appeal is allowed without cost. The order dated 09.03.11 passed by the District Forum in connection with C.D. case No. 39/2007 is hearby set aside. Ld. Forum is directed to give opportunity to the appellant to file requisite in order to ensure the attendance of the witness. We direct that the respondent should be given reasonable opportunity to adduce evidence in support of his contentions. With this direction the appeal is disposed off.
Let the copy of the order forwarded to District forum immediately. Another copy of the order be supplied to the Ld. Advocate for the appellant free of cost.
