Date of filing : 09.12.2016

Date of hearing : 04.05.2017

                The present appeal Under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as “ the Act “ ) is at the behest of OPs  to assail the Order No.07 dated 20.10.2016 made by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit - II  ( for short,  Ld. District Forum ) in Consumer Complaint No. 382/2016. By the impugned order, the Ld. District Forum allowed the consumer complaint lodged by the respondent Shri Pradip Kumar Roy U/S. 12  of the Act with the direction upon the appellants to restore the connection of mobile number of the respondent being number 9432255550 within  15 days from the date of the order and to pay Rs. 20,000/- as compensation for harassment and mental agony with a further direction that unless  the order is complied with,  the appellants shall be liable to penal damages @ Rs.5,000/ - to be paid to the Forum till full and final satisfaction of the award.

          The respondent herein being complainant lodged the complaint asserting that he was using one BSNL mobile connection being No. 9432255550 for the past 10 years. In the month of February,he purchased an Android phone of Samsung being model no. Galaxy 56 with 4G connectivity and at the time of purchase, the sales person proposed to use a connection of Airtel 4G for that newly purchased mobile and contacted the Nodal Officer of Bharti Airtel. Accordingly, the BSNL connection got changed into the connection of Airtel with 4G network. In the month of October, when the complainant was proceeding for Malaysia, Indonesia and Bally he contacted the customer care for facilitating the roaming service but after reaching Malaysia he could not make contact for non-availability of roaming services and finding no other alternative he had to buy local SIM at those places for contact with his sons and other relatives and friends. On his return from abroad, the complainant contacted the Executive of Bharti Airtel and asked them to cancel the roaming registration and the same was disconnected immediately. In the month of November, when he was planning to visit Malaysia he  requested to facilitate ISD connection which was effected within few hours but after return on 4th December he got one SMS of the bill Rs. 35,000/- odd. The complainant immediately reacted to the Executive of OP No.2 but the OP No.2 sent SMS and asked the complainant to pay Rs. 47,000/- without sending any details of bill and thereafter stopped the outgoing facility. Subsequently, one official of OP No.2 met the complainant and proposed to pay 1/3rd as a full and final payment and the complainant agreed to pay Rs. 20,000/- towards full and final settlement of the dues. But after encashment of cheque, the mobile connection was not reactivated. Hence, the respondent approached the Ld. District Forum with prayer for certain reliefs, viz – (a) for a direction to restore the connection of mobile number 9432255550 forthwith; (b) to pay compensation of Rs.15,00,000/- etc.

          The impugned order speaks that the appellants being OPs have entered appearance but failed and neglected to file written version within the stipulated period and as such the complaint was proceeded exparte.

          After perusal of copy of plaint and some documents, the Ld. District Forum by the impugned order allowed the complaint with certain directions as indicated above which prompted the Ops to prefer the appeal.

          I have scrutinised the materials on record and considered the submission advanced for the parties.

          Having heard the Ld. Advocate for the appellants and the respondent (who is an Advocate in profession) in person it reveals that the Ld. District Forum has passed the impugned order without reception of affidavit. In this regard, it would be worthwhile to reproduce the provisions of Section 13 (2) of the Act –

“ (2) The District Forum shall, if the complaint admitted by it under section 12 relates to goods in respect of which the procedure specified in sub –section (1) cannot be followed, or if the complaint relates to any services, -

(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of  thirty days or such extended period not exceeding  fifteen days as may be granted by the District Forum ;

(b) where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum , the District Forum shall proceed to settle the consumer disputes, -

(i) On the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or

(ii) ex-parte on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represents his case within the time given by the Forum “

          The materials on record indicate on 11.08.2016 the petition of complaint was admitted fixing 05.09.2016 for SR and appearance. On 05.09.2016 as notice upon the appellants/OPs were served, the Ld. District Forum fixed 19.09.2016 for filing written version. The copy of order dated  19.09.2016 goes to show that as on that date no WV was filed the Ld. District Forum decided to proceed the matter exparte and fixed  27.09.2016 for evidence on affidavit by the complainant. Subsequently, the complainant /respondent did not file any affidavit and the Ld. District Forum without giving any opportunity to the appellants/OPs to file written version within 30 days as prescribed by the legislature and without reception of evidence allowed the complaint by the impugned order.

          In a decision of Three – Judge Bench of the Hon’ble Supreme Court reported in  (2002) 6 SCC 635 ( Dr. J. J. Merchant –vs. – Shrinath Chaturvedi )  it has been observed that in no case period beyond  45 days can be granted to the OP for filing its version of the case. In a recent decision reported in 2016 (1) Supreme  319 ( New India Assurance Co. Ltd. – vs. – Hilli Multipurpose Cold Storage Pvt. Ltd. ) Three – Judge Bench of the Hon’ble Apex Court has held that the view of the judgement delivered in the case of Dr. J. J.Merchant(Supra ) holds the filed and reiterated  the view that   the District Forum can grant further period of  15 days to the OP for filing his version and not beyond that. Keeping in view t he said observation, the Ld. District Forum had an opportunity to grant at least 30 days time from the date of receipt of notice. But the Ld. District Forum without adhering the scope of the provisions of the law and the decisions referred above decided to proceed exparte within 15 days from the date of receipt of notice.

          Moreover, the Ld. District Forum had no reason to accept the submissions of the complainant without any affidavit. In a decision reported in  2008 (1) CPR 1 ( Mathura Mahato Mistry –vs. – Dr. Bindeshwar & Anr )  the Hon’ble National Consumer Commission has observed that disposing the complaint simply on pleadings without directing the parties to file evidence by way of affidavits is illegal on the face of it.

          Therefore, relying upon the provisions of law and the authorities referred above, I am of the view that the impugned order cannot be sustained in the eye of law and as such the said order is liable to be set aside.

          Consequently, the appeal is allowed on contest. There will be no order as to costs.

          The impugned order is hereby set aside.

          The case is remitted back on remand with a direction upon the parties to appear before the Ld. District Forum on 08.06.2017 and on that date, the Ld. District Forum will fix a date for filing evidence on affidavit by the complainant after accepting the written version and to proceed with the case in accordance with law.

          The Ld. District Forum is requested to expedite the hearing of the case and to make all endeavours to dispose of the case within three months as prescribed in Section 13 (3A) of the Act.

          The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit - II for information.