Tripura

StateCommission

RP/5/2015

Sri Anjan Paul - Complainant(s)

Versus

Sri Bijoy Pandey & Others. - Opp.Party(s)

Mr. Prasanta.kumar paul, Smti Debjani Bhattacharjee, Mr. Prabir Kr Chakraborty

06 Jan 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

TRIPURA

 

APPEAL CASE No. RP-05/2015.

 

 

1. Shri Anjan Paul,

S/O Lt. Sudhan Chandra Paul.

1, Mantribari Road, P.O. Agartala.

P.S:- West Agartala, Dist: West Tripura,

•  

                   ….    ….    ….    ….    Appellants/Petitioner.

 

                   Vs

 

1. Bijoy Pandey,

Proprietor of M/s Vending Machines & Premixes,

Kumaritilla, P.O. Abhoynagar, Agartala, West Tripura,

•  

 

2. Managing Director,

Godrej Boyce & Manufacturing Co. Ltd,

P.O. Ulubari, G.S. Road, Guwahati,

Pin-781005, Assam.

                              ….    ….    ….    ….    Respondent/Opposite Party.

 

 

PRESENT

 

HON’BLE MR.JUSTICE S.BAIDYA,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR.NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

For the Appellant               :         Mr. Prasanta Kr. Pal, Adv., Smt. Debjani Bhattacharjee, Adv.

& Mr. Prabir Kr. Chakraborty, Adv. 

 

For the Respondent No.1    :         In person.

For the Respondent No.2    :         U.K. Chakrabarti, Adv.

 

Date of Hearing       :         19.12.2015

 

Date of delivery of Judgment:

 

 

 

J U D G M E N T

 

S. Baidya, J,

            This revision petition filed on 16.11.2015 under section 17(1) (b) of the Consumer Protection Act, 1986 by the petitioner Shri Anjan Paul is directed against the Order dated 19.10.2015 passed by the Ld. District Consumer Disputes Redressal Forum (in short District Forum), West Tripura, Agartala, in case No.CC-26/2015, whereby Ld. District Forum dismissed the complaint for non-prosecution on account of default of the complainant.    

2. The case of the petitioner, as narrated in the revision petition, in brief, is that the petitioner filed a complaint petition under section 12 of the Consumer Protection Act, 1986 before the Ld. District Forum against the present respondents for being aggrieved by the fact that the present petitioner purchased a “Godrej Hot & Cold Machine & Premix” from the Opposite Party No.1 Shri Bijoy Pandey on 24^th August, 2014 for an amount of Rs.30,000/-, but it was found defective and since purchase it was found total unsatisfactory and being aggrieved by such deficiency on part of the Opposite Parties, the petitioner lodged a complaint which was registered as         CC-26/2015.
3. The present petitioner No.2 Godrej Company did not appear in that proceeding and as a result, the Order dated 16.05.2015 was passed by the Ld. Forum directing to proceed ex parte against the present O.P.No.2 and against that Order, the present O.P.No.2 filed a revision petition being No.03/2015 under section 17(1) (b) of the C.P. Act, 1986 and in that proceeding this Commission allowed the revision petition and by an Order dated 08.09.2015 this Commission directed the parties to appear before the Ld. District Forum on 15.09.2015.
4. It is alleged that the Ld. Counsel Mr. M.K. Roy after obtaining the copy of the judgment and Order dated 08.09.2015 did not contact with the complainant nor with the other Ld. Advocates who were also engaged by the complainant and as a result, the complainant was not aware about the fate of the Revision Petition No.03/2015 pending before this Commission nor the complainant was aware of the next appointed day of the complaint case before the Ld. Forum and as such, neither the complainant nor his other Counsels appeared on 15.09.2015. It is also alleged that for the same reason, neither the complainant nor his other Ld. Counsels could appear before the Ld. Forum on the next date i.e. on 19.10.2015 and as a result, the Ld. Forum dismissed the complaint for non-prosecution.
5. It is also alleged that there is no laches or negligence on the part of the complainant for non-appearance before the Ld. Forum on 19.10.2015 and it was due to the laches on the part of the Ld. Advocate Mr. M.K. Roy and the Ld. Forum finding no alternative, dismissed the complaint for non-prosecution on 19.10.2015 by the impugned order, but for this, the purpose of filing the complaint by the petitioner cannot be frustrated.
6. It is also alleged that being aggrieved by and dissatisfied with the impugned order dated 19.10.2015 passed in CC-26/2015, the present petitioner has preferred the instant revision on the grounds that the Ld. Forum erred in coming to the conclusion to dismiss the complaint for default, that the Ld. Forum ought to have held that the complaint petition was filed as the complainant has suffered financial loss for the mischievous acts and omissions on the part of the Opposite Parties and hence, the Ld. Forum ought to have appointed another date to try the grievance of the complainant instead of dismissing the complaint petition for default, that it was due to the laches on the part of the Ld. Counsel Mr. Mihir Kanti Roy by not conveying the information to the complainant regarding obtaining of Judgment and Order dated 08.09.2015 and as such, keeping the complainant in dark about the fate of the revision case and also for not informing the progress of the case to other Ld. Counsels engaged for the complainant, the complainant was prevented from appearing on 19.10.2015, when the Ld. Forum dismissed the complaint for default, that the Ld. Forum has miserably failed to exercise its jurisdiction vested in it inasmuch as, when the Ld. Forum found that neither the complainant nor the Advocate appeared on the date so fixed, the Ld. Forum ought not to have dismissed the complaint for default without granting another chance to the complainant and as such, the revision of the impugned order is necessary, that if the revision of the impugned order is not done, the petitioner would suffer irreparable loss and injury which cannot be compensated by any means and hence, the instant revision petition has been filed.

 

Points for Consideration

 

7. The points for consideration are (i) whether the impugned order dated 19.10.2015 passed by the Ld. District Forum suffers from any illegality, impropriety and unjustifiability and (ii) whether the impugned order under challenge in this revision should be set aside as prayed for.

 

Decision with Reasons

 

8. Both the points are taken up together for the sake of convenience and brevity.  
9. The Ld. Counsel for the petitioner/revisionist submitted that the complainant was prosecuting his case being CC-26/2015 diligently against both the Opposite Parties. He also submitted that as the present O.P.No.2 failed to appear in the said complaint case, the Ld. Forum passed the Order to proceed ex parte against the present O.P.No.2 and against that Order, the O.P.No.2, Godrej Company preferred a revision petition registered as RP/03/2015 before this Commission. He also submitted that this Commission vide Judgment and Order dated 08.09.2015 allowed the said revision petition and directed the parties to appear before the Ld. Forum on 15.09.2015. He also submitted that Mr. M.K. Roy along with other Ld. Counsels were engaged by the complainant in the revision case and Mr. M.K. Roy was entrusted to obtain the certified copy of the judgment and order dated 08.09.2015 and also to communicate the fate of that revision petition to the complainant as well as other Ld. Counsels engaged by the complainant. He also submitted that Mr. M.K. Roy neither communicated the fate of that revision case to the complainant nor informed anything to him and other Counsel engaged by the complainant. He also submitted that due to the non-communication and non-information on the part of Ld. Counsel Mr. M.K. Roy, neither the complainant nor his other Ld. Counsels appeared before the Ld. District Forum on 15.09.2015 as fixed by this Commission.
10. The Ld. Counsel Mr. P.K. Chakrabarti also submitted that for the negligence of Mr. M.K. Roy, the Ld. Counsel, no step could be taken from the side of the complainant on the said date i.e. on 15.09.2015. He also submitted that the Ld. Forum vide Order dated 15.09.2015 fixed the case on 19.10.2015 for filing the Examination-in-Chief on affidavit by the complainant, but as the complainant and his other Ld. Counsels could not know, rather was not informed by Mr. M.K. Roy regarding the fixing of the said complaint case on 19.10.2015, the complainant was absent without any step. He also submitted that as no step was taken from the side of the complainant due to the laches on the part of Mr. M.K. Roy, the Ld. Forum dismissed the complaint for non-prosecution. He also submitted that there was no intentional negligence on the part of the complainant. He also submitted that the impugned order dismissing the complaint was passed for no wilful negligence of the complainant. He also submitted that the petitioner is a sufferer for purchasing a defective machine from the Opposite Parties for valuable consideration. He also submitted that the Consumer Protection Act is a consumer beneficial legislation and a bonafide consumer should not be deprived of getting proper remedy due to the fault of his lawyer, but not of his own.
11. He also submitted that when the complainant and his Ld. Counsels did not appear before the Ld. Forum on the appointed date, the Ld. Forum could appoint another date for ends of justice, but the Ld. Forum, instead of doing that, dismissed the complaint by the impugned order which should be set aside for ends of justice providing an opportunity to the present petitioner to agitate his grievance before the Ld. Forum in the said complaint case.
12. The O.P.No.1 Shri Bijoy Pandey who has conducted his case in person submitted that the matter in dispute is pending for a considerable time and on every occasion he has been appearing before the Ld. Forum as well as before this Hon’ble Commission. He also submitted that earlier the present O.P.No.2 preferred the revision petition before this Hon’ble Commission and the Hon’ble Commission after hearing the parties passed the judgment providing opportunity to the present O.P.No.2 to contest the complaint case by filing written objection and also adducing evidences after setting aside the Order to proceed ex parte against the present O.P.No.2. He also submitted that it was the fault of the complainant who failed to appear on 15.09.2015 before the Ld. District Forum as fixed by this Commission and for such fault of the complainant, the O.P.No.1 should not be harassed. He also submitted that as the present petitioner failed to take proper step in the District Forum on the appointed day, the Ld. Forum had no alternative, but to dismiss the complaint for non-prosecution. He further submitted that the impugned order being passed rightly by the Ld. Forum, in that circumstance, there is no ground to interfere with the impugned order and as such, it should be affirmed and the revision petition should be dismissed.
13. The Ld. Counsel Mr. U.K. Chakrabarti appearing for the O.P.No.2 submitted that principally, the O.P.No.2 should have objection in allowing the revision petition, but in the earlier revision petition preferred by this O.P.No.2, the present petitioner practically did not raise any objection with the object that the matter in dispute should be disposed of on merit. He also submitted that it is a fact that the present petitioner-complainant had a number of Ld. Advocates to act on his side and as such, it is not proper to make only Mr. M.K. Roy responsible for non-communication about the fate of the earlier revision case as well as non-information of the date so fixed by this Hon’ble Commission to the complainant and his other Ld. Counsels. He also submitted that as Mr. M.K. Roy is not now before this Hon’ble Commission, it is very safe and easy to point out the finger towards Mr. Roy making himself responsible for passing of the impugned order. He also submitted that however, as the allegations against Mr. M.K. Roy for non-communication and non-information either to the complainant or to other Ld. Counsels of the complainant regarding the date of appearance before the Ld. Forum has been made in the revision petition submitted on affidavit, he is not objecting, if the petitioner is given a chance to agitate his grievance before the Ld. District Forum by way of allowing the present revision petition.
14. We have gone through the impugned order dated 19.10.2015, copy of the judgment of earlier Revision Petition No.03/2015 and the copy of the Examination-in-Chief on affidavit of the complainant dated 10^th August, 2015 filed before the Ld. District Forum. We have also considered the submissions made by the Ld. Advocates as well as the O.P.No.1 in person. It transpires that in the judgment of the earlier Revision Petition No.3/2015 this Commission directed the parties to appear before the Ld. District Forum on 15.09.2015, but neither the complainant nor the O.P.No.1 appeared before the Ld. District Forum on that date. Only the Ld. Advocate for the present O.P.No.2 appeared on that date. It further appears that the Ld. District Forum vide Order dated 15.09.2015 accepted the written objection filed by the O.P.No.2 and accepting the written objection already filed by the O.P.No.2 vide said order, the Ld. District Forum fixed the case on 19.10.2015 for filing the Examination-in-Chief on affidavit by the complainant, but on that date although the present O.P. nos. 1 & 2 were present, but the complainant was absent without any step. It further appears that when the complainant took no step, the Ld. District Forum had no alternative, but to dismiss the complaint for non-prosecution. So, we find no fault or illegality in the impugned order dated 19.10.2015.
15. It is the plea of the petitioner/complainant that the Ld. Advocate Mr. M.K. Roy was entrusted by him as well as by the other Ld. Counsels to communicate the result of the earlier revision case, but the said Ld. Advocate neither informed the complainant nor the other Ld. Counsels engaged by the complainant regarding the fate of the said revision case and as a result, the complainant and his other Ld. Counsels were not aware regarding the date of their appearance before the Ld. District Forum on 15.09.2015 as directed in the said judgment and for that reason the complainant and his other Ld. Counsels could not appear on that date before the Ld. District Forum. It is true that when the complainant engaged a number of advocates to conduct his case, legally each of the Ld. Advocates has lawful duty to conduct the case of the complainant properly. At the same time, by making entrustment upon a particular Advocate as alleged, neither the complainant nor the other Ld. Counsels can be exempted from their respective liability. However, when the petitioner has taken the plea on affidavit in the revision petition that Mr. M.K. Roy was entrusted to inform and communicate the fate of the earlier revision case to the complainant/petitioner as well as to other Ld. Counsels, we should not disbelieve it having no other material to presume otherwise.
16. It is universally accepted principle of law that nobody should suffer for a fault not of his own, but for the fault of his advocate. The natural justice also demands that for the fault of the Ld. Advocate the petitioner-complainant should not suffer. Here, the petitioner is the consumer under the Consumer Protection Act, 1986. This Act has been enacted for the benefit of the consumers. It will not be out of place to mention that the earlier Revision Petition No.03/2015 instituted by the present O.P.No.2 was allowed with a view to provide an opportunity to the present O.P.No.2 to contest the said complaint. It is true that the present O.P.No.1 has been defending himself regularly in all stages of the proceedings. If the instant revision petition is not allowed, the matter in dispute pending between the parties will not be adjudicated finally on merit. The ends of justice also demands that for fair and proper adjudication of the matter in dispute, the instant revision petition should be allowed providing opportunity to all the parties for final adjudication. Keeping that view in mind, we are inclined to allow the revision petition by setting aside the impugned order.
17. In the result, the revision petition succeeds. The impugned order dated 19.10.2015 passed by the Ld. District Forum in Case No.CC-26/2015 stands set aside. The aforesaid complaint case be restored to its original file and number. There is no order as to costs.
18. Let a copy of this judgment and the record of CC-26/2015 be transmitted to the Ld. District Forum, West Tripura, Agartala forthwith for information and proceeding according to law for the early disposal of the case and the Ld. District Forum on receipt of the same, in turn, shall restore the case and proceed with the disposal of the case as indicated above intimating the parties either in person or through the respective Ld. Lawyer regarding the next date to be fixed for the appearance of the parties before it.

     

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura