Punjab

StateCommission

FA/13/330

Samsung India Electronics Ltd. - Complainant(s)

Versus

Smt. Gurmeet Kaur & Anr. - Opp.Party(s)

Sandeep Suri

11 Feb 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

  First Appeal No.330 of 2013                                                    

            Date of institution  :    25.03.2013   

Date of decision     :    11.02.2015

 

Samsung India Electronics Ltd., having its Registered Office at A-24, Ground Floor, Front Tower, Mohan Co-operative Industrial Estate, New Delhi-110044, through its Authorized Signatory.

 

…….Appellant/Opposite Party No.1

Versus

1.      Smt. Gurmeet Kaur W/o Sh. Jarnail Singh;

2.      Rajnish Kaur D/o Sh. Jarnail Singh;

          Both residents of Village Kukuwal, Teh. Garhshankar, District Hoshiarpur.

                                                          …Respondent/Complainants 

3.      Jeet Electronics, through its Prop. Adda Bhaam, Tehsil Mahilpur, Hoshiarpur, Punjab.

                                                …Respondent/Opposite Party No.2 

First Appeal against the order dated 05.10.2012 of the District Consumer Disputes Redressal Forum, Hoshiarpur.

Quorum:- 

          Hon’ble Mr. Justice Gurdev Singh, President.

                        Shri Baldev Singh Sekhon, Member.

                        Mrs. Surinder Pal Kaur, Member.

Present:-

          For the appellant            : Shri Sandeep Suri, Advocate.

          For the respondents      : Shri Mukand Gupta, Advocate.

 

JUSTICE GURDEV SINGH,  PRESIDENT :

 

                    This appeal has been preferred by the appellant/opposite party No.1 against the order dated 05.10.2012 passed by District Consumer Disputes Redressal Forum, Hoshiarpur (in short, “District Forum”), vide which the complaint filed by respondent Nos.1 & 2/complainants, under Section 12 of the Consumer Protection Act, 1986, was partly allowed against this opposite party and it was directed to pay Rs.1,00,000/- to them, along with interest @ 9% per annum from the date of completion of the formalities i.e. 16.11.2011 till the realization of that amount and Rs.5,000/-, as litigation costs within 30 days of the receipt of the copy of the order and in the event of failure to pay those costs, to pay interest on that amount @ 9% per annum till the payment thereof.           

2.           As per the allegations, made in the complaint, the complainants purchased one DVD, manufactured by opposite party No.1, from opposite party No.2, after the payment of Rs.2,900/-, in the name of Jarnail Singh, husband of complainant No.1 and father of complainant No.2. After the death of Jarnail Singh, they are the beneficiaries. The opposite parties had launched a scheme, known as “Smart Utsav” and after the purchasing of the said product, they were covered under that scheme. They were told that they should send SMS to opposite party No.1 and they can win a prize under the scheme. Accordingly, the complainants sent the SMS, along with the number of the product, to opposite party No.1, and they won the prize of Rs.1,00,000/- in the draw declared by that opposite party. They immediately approached opposite party No.2 and were told by the officials thereof that they had won the prize of Rs.1,00,000/-. On 01.11.2011, the officials of opposite party No.1 came to their house and physically verified the DVD Player, the box thereof and the original bill and assured to settle the claim within 10 days. On 14.11.2011, they were called to the office by opposite party No.1 at Ludhiana for completion of the formalities and their signatures were obtained on the claim form. The copy of the bill and print impression of the box was asked from them and they furnished the same to opposite party No.1 on 16.11.2011; which assured to settle the claim within one month. The said sum of Rs.1,00,000/- was not paid to them and the opposite parties kept on delaying the matter. This act of the opposite parties is illegal, malafide and arbitrary; as a result of which, they suffered great loss, inconvenience and frustration. There is deficiency in service on the part of the opposite parties. In the complaint, they prayed for the issuance of directions to the opposite parties to refund the sum of Rs.1,00,000/-, along with interest @ 9% per annum from the date of claim; and to pay Rs.20,000/-, as damages for the inconvenience and harassment suffered by them.
3.           Opposite party No.1 did not appear before the District Forum in spite of its service and was proceeded against exparte. The complaint was contested by opposite party No.2 by filing written reply before the District Forum. In the written reply, it admitted that the complainants purchased the DVD from it after the payment of Rs.2,900/- and that the same was manufactured by opposite party No.1. It also admitted that the DVD was purchased in the name of Jarnail Singh, husband of complainant No.1 and father of complainant No.2 and that he has already expired. It also admitted that the complainants were covered under the scheme launched by it and opposite party No.1 under the name “Smart Utsav” and that as a result of the draw; they had become entitled to Rs.1,00,000/-, as prize and that the purchase of the DVD by them was physically verified at their house. While denying the other allegations made against it in the complaint, it pleaded that it has no concern with the present dispute and has been unnecessarily dragged into litigation. The complaint is not legally maintainable against it. It prayed for the dismissal of the complaint.
4.           Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf partly allowed the complaint, vide aforesaid order.
5.           We have heard the learned counsel for both the sides and have carefully gone through the records of the case.
6.           It has been submitted by the learned counsel for the appellant/opposite party No.1 that opposite party No.1 was never served with a notice in the complaint and was wrongly proceeded against ex parte. On account of non-service of the notice, the impugned order; which was passed ex parte against this opposite party, is liable to be set aside. He has referred to the registered covers; which were sent to this opposite party by the District Forum and according to him, complete address was not given thereon, as disclosed in the complaint.
7.           On the other hand, it has been submitted by the learned counsel for the complainants that the notice was duly served upon opposite party No.1 through registered post and it was correctly proceeded against ex parte. Even if the registered cover had not been received by that opposite party, even then the order passed by the District Forum cannot be set aside, as a valid presumption of service was drawn by it in view of the fact that after the expiry of the period of 30 days, since the sending of the registered letter, neither the AD Receipt had been received, nor the un-delivered registered cover had been received back.
8.           A perusal of the zimni orders passed by the District Forum shows that the notices were repeatedly sent to opposite party No.1 under registered covers, which were being received back for want of correct address of that opposite party. The complainants were repeatedly asked to file its correct address. On 12.07.2012, the complainants were again asked to file the correct address of opposite party No.1 and they were given the last opportunity for doing so. It was also incorporated in the order that in case, the address already furnished was the only known address of opposite party No.1, then they should file an affidavit to that effect. Thereafter, the correct address of opposite party No.1 was filed and vide order dated 18.07.2012, notice was ordered to be issued for 24.08.2012. When the matter was taken up on 24.08.2012, it was found that the registered cover was sent on 07.08.2012; which had not been received back and for awaiting the same, the complaint was adjourned to 10.09.2012. It was on that date that the presumption of service was drawn on account of the non-receipt of the AD/ undelivered registered cover.
9.           The complainants gave the address of opposite party No.1 in the heading of the complaint as under:-

 

          “Samsung India Electronics Pvt. Ltd., A-24, Ground floor, Front        Tower, Mohan Co-operative, Industrial Estate, New Delhi.”   

 

 

On 18.07.2012, they furnished the following fresh address:-

 

 

          “Samsung India Electronics Pvt. Ltd., A-25, Ground floor, Front        Tower, Mohan Co-operative, Industrial Estate, New Delhi.” 

 

Even if it is presumed that this address, so given by the complainants, was the correct address of opposite party No.1 and the registered letter so sent to it, was properly addressed, even then the District Forum could not have drawn the presumption of service on 10.09.2012; when this opposite party was proceeded against ex parte. No notice was ever sent to it for 10.09.2012 and the notice was sent in the registered letter for 24.08.2012. The presumption of service could not have been drawn on the date; for which the notice was not sent.  In these circumstances, it cannot be held that opposite party No.1 was properly served for the date fixed. Therefore, it could not have been proceeded against ex parte and the final ex parte order passed against this opposite party is liable to be set aside only on that ground.  

10.           In the result, the appeal is allowed, the order passed by the District Forum is set aside and the complaint is remanded back to it for deciding the same afresh from the stage of the filing of the written reply.
11.           Parties are directed to appear before it on 10.03.2015. Records of the District Forum be returned immediately.
12.           The appellant had deposited a sum of Rs.25,000/- at the time of filing of the appeal. It deposited another sum of Rs.34,375/- on 24.03.2014 in compliance of the order dated 08.04.2013 passed by this Commission.  Both these amounts along with interest which has accrued thereon, if any, shall be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
13.           The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

 

                                                        (JUSTICE GURDEV SINGH)

                                                                       PRESIDENT                                                           

 

 

                                                        (BALDEV SINGH SEKHON)

                                                                         MEMBER                                                         

 

 

                                                      (MRS. SURINDER PAL KAUR)

February 11, 2015                                       MEMBER

(Gurmeet S)