Dated 15.10.2014
MR. J.BAG, LD. MEMBER
The present appeal is directed against the Order dated 04.03.2013 passed by the Ld. District Consumer Disputes Redressal Forum , Howrah, in case No. HDF 108 of 2012, whereby the complaint was allowed in part against OPs with cost.
The complaint , in brief, was as follows:
The Complainant purchased a Vodafone USB stick on payment of Rs. 1500/- on 12.06.12 from Vodafone Store i.e., OP No.1. He connected the said USB with his Laptop and it started working . But, only after 5 minutes the Laptop turned off . When he switched it on it worked for 5/7 minutes, but it turned off again . He went to the Vodafone Store and complained about the problem. The stick was examined and said to be OK . The Complainant tried again but the Laptop turned off sometimes after 5 minutes, sometimes after 15 minutes or 30 minutes . He again went to the Vodafone Store i.e., OP No.1 who sent a technical person . The said technical person went to the house of the Complainant and examined both the Laptop and the stick , but could not solve the problem and told the Complainant that the Laptop was defective . Complainant went to the shop from where the Laptop was bought . As advised by the shop, the Complainant went to the Dell Service Centre i.e., OP No.2 . They examined the laptop and finally changed the mother board of the Laptop . But, the problem remained where it was . The Complainant again went to the Vodafone Store and again they examined the stick in their Laptop and opined that the stick was OK but the Laptop was defective. The Complainant after much persuasion exchanged the Laptop for a new one , but the problem with the stick persisted. Finally on 23.07.12 the Complainant went to the Vodafone Store and asked them to take back the stick and to refund the cost of the same. The Vodafone Store refused to return the money and kept the stick for further checking . After 10 days the Complainant was asked over telephone to take delivery of the stick. A technical person from the Vodafone Store visited the house of the Complainant and it was found that the stick was only working in 1 USB slot out of 3 , though it should have worked with all the 3 slots of the Laptop. It was found that the Laptop was working fine with other USB stick, while the Laptop was not so working with the USB stick purchased from the Vodafone Store. As the said Vodafone Store refused to refund the money being the cost of the USB stick, a complaint was lodged before the Ld. Forum below with prayer for direction for refund of money of Rs. 1500/- being the cost of the stick , compensation for harassment and mental agony for Rs. 10,000/- and cost of litigation for Rs. 5,000/-.
The OP challenged maintainability of the complaint vide their W.O. received in the office of the Ld. District Forum on 14.01.2013 .
In their W.O. it was stated that the subject of the complaint was to be dealt with under Section 8 of the Arbitration and Conciliation Act 1996 and it was emphasized, inter alia, that the complaint deserves to be dismissed.
Ld. Forum below , as it appears from LCR , ordered for hearing of the W.O. filed by OP on 31.01.2013 . The OP being absent on that date , exparte hearing was fixed on 11.02.2013 and W.. was allowed to be filed before 11.02.2013 by the OP. No W.V was submitted by the OP . Accordingly, the Complainant was heard on 11.02.13 exparte and order was passed accordingly allowing the complaint in part with the direction upon the OPs to return the purchase price of the USB stick to the Complainant and also to pay Rs. 1,000/- as compensation and Rs. 500/- as litigation cost.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below the Appellant has come up before this Commission with the prayer for order to refer the impugned proceeding to arbitration as per the provisions of Section 7B of the Indian Telegraph Act and to pay costs, apart from staying the operation of the impugned order dated 4th March 2013 passed by the Ld. District Forum.
Ld. Advocate appearing for the Appellant submitted that the impugned order was passed without giving them the opportunity to file W.V. In fact, no order was passed by the Ld. Forum below on the petition filed in regard to the maintainability of the complaint. It would be apparent from the record of the complaint case that the Ld. Forum below did not consider the contents of the petition dated 14.01.2013 filed by OP No.1 . In the said petition , the OP referred to the order of the Apex Court in General Manager , Telecom –vs- M. Krishnan and Anr. (AIR 2010 SC 90) and also referred to the decision of the National Consumer Disputes Redressal Commission in Prakash Verma –vs- Idea Salular Ltd and Ors. Ld. Forum below wrongly passed the exparte order without giving the OP the opportunity of hearing. The impugned order deserves to be set aside with heavy costs.
Respondent No.1 in person argued that the USB stick which he purchased for a consideration was found to be defective and he has the right to claim refund of money being the price of the said USB stick , apart from compensation and litigation cost. As a consumer he purchased the article from the OP No.1 and it was, after several checking, found that the article was defective . Hence, the order passed by the Ld. Forum below was in tune with the provisions of the Consumer Protection Act and needs to be upheld .
Decision with Reasons
We have gone through the memorandum of appeal together with the copy of the impugned order and the petition of complaint . The LCR has been consulted.
It appears from the petition of appeal as well as from the order dated 14.01.13 of the Ld. Forum below that OP No.1 filed a petition challenging the maintainability of the complaint case . The said petition was scheduled for hearing on 31.01.13 . The OP was absent on that date and the Ld. Forum below ordered for exparte hearing on 11.02.2013 without granting any further opportunity of hearing to the OPs . It was also ordered on that date that the W.V. if any could be filed before the said date of hearing of the petition challenging maintainability of the complaint.
It appears from the LCR that no W.V. was filed by the OP and the complaint was heard ex parte . It shows that the Ld. Forum below without dealing with the petition challenging the maintainability of the complaint, heard the Complainant exparte and disposed of the petition of complaint. By doing so, Ld. Forum below made an illegality . There is no reflection in the order of any view taken by the Ld. Forum below in regard to the maintainability of the petition of complaint.
The Appellant has rightly pointed out that the Ld. Forum below should have considered the objection on the point of maintainability and jurisdiction at the outset. Further, the OP should have been given adequate opportunity to contest the case by filing of W.V.
Surprisingly enough, Ld. Forum below has in its order noted that OP No.1 has in its W.V. taken the plea that the dispute is a subject matter which is to be adjudicated in terms of Indian Telegraph Act, 1885. Such W.V. however, does not appear to have been filed as seen from the LCR .
In the circumstances as stated we are of the considered view that the present appeal is a fit case for remand to the Ld. Forum below for fresh adjudication . The appeal , from the point of view of merit , succeeds. Hence,
Ordered
that the appeal be and the same is allowed on contest . The impugned order is set aside. The case be sent back on remand to the Ld. Forum below for fresh adjudication after giving opportunities of hearing to both parties before passing a fresh order as expeditiously as possible. There shall be no order as to costs.
