STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

APPEAL CASE No.F.A-22/2014

     M/S Eureka Forbes Limited,

     (represented by the Branch-in-charge),

     Sales office at-

     Matribari Road, Old R.M.S. Chowmuhani,

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

     Having its registered office at-

     No-7, Chakraberia Road (South), Kolkata-7000 025 and its

     Corporate office at B/B2,701, 7^th Floor, Marathan Innova,

     Marathan Next Gen. Off at Ganapatrao Kadam Marg, Lower

Parel, Mumbai – 4000 013.

                                     ….    ….    ….    ….    Appellant.

                   Vs

     Sri Rabindra Narayan Dasgupta,

     S/O-Late Sashadhar Dasgupta,

     Gandhighat, P.S-West Agartala,

     Agartala, Pin 799 001.

                                    ….    ….    ….    ….    Respondent.

PRESENT :

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                  MRS. SOBHANA DATTA,,

             MEMBER,

               STATE COMMISSION.

For the Appellant    :      Mr.P.K.Paul,Adv.

For the respondent :Sri Rabindra Narayan Dasupta, the respondent in person.

     Date of Hearing         :     27.01.2014.

     Date of delivery of Judgment  :09.02.2015.

J U D G M E N T

S.Baidya,J,

            This appeal filed on 25.08.2014 by the appellant, M/S Eureka Forbes Limited under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment and order dated 30.07.2014 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-29 of 2014 whereby the Ld. District Forum allowed the complaint under Section 12 of the Consumer Protection Act, 1986 exparte directing the present appellant-O.P. to replace the old water purifier of the same brand by a new one or refund the price of the water purifier amounting to Rs.11,990/- and also pay a sum of Rs.5000/- towards mental agony and harassment and also a sum of Rs.2000/- as cost of litigation to the complainant with a further direction to pay the said amount within 30 days from the date of judgment, failing which the said amount will carry interest @ 9% p.a. till the payment is made.     

2. The case of the complainant as narrated in the memo of appeal, in brief, is that the appellant-firm dealing in water purifier commonly known as “Aquaguard” having its more than 1000 sales and service centres in all major cities in the country including that of sales and servicing centre at Agartala is situated at Mantribari Road, Old R.M.S. Chowmuhani, but the said sales and service centre of the appellant-firm was earlier at “Rajat Villa”, Dhaleswar Road No-1, Agartala and subsequently, it has been shifted to the present address at Mantribari Road, Old R.M.S. Chowmuhani, Agartala, West Tripura in the last part of the year, 2012.                                                 
3. It has also been alleged that as per requisition of the respondent-customer and on receipt of Rs.10,990/- (Rs.11,990/- (-) Rs.1000/- as against change of old water filter), the “order form-cum-receipt” vide No-446002333 dated 15.05.2013 was issued in favour of the respondent and subsequently, on supply of the water-purifier, the Invoice vide No-4463100256 dated 21.05.2013 was issued wherein the address of the newly shifted office of the appellant-firm was mentioned at the bottom of the Invoice as “Eureka Forbes Limited, Old R.M.S. Chowmohani, Mantribari Road, Agartala, Phone No-0381-2387019/7020” under signature of the local sales officer and the respondent-customer was, accordingly, advised to communicate only in the said new address and not to make any future correspondence in the old address printed in the “order form-cum-receipt” and also in the “Invoice form” . It has also been alleged that due to the shifting of the office of the appellant from one place to another, till then, there were some dislocations in the format of printed forms (in computer system) of Order/Invoice forms.
4.   It has also been alleged in the memo of appeal that the water purifier “Aquaguard” (UV-WP system) was installed on replacement of the old one by expert engineer of the appellant-firm and the same was functioning to the satisfaction of the respondent-customer, but after more than six months from installation, the respondent made a complaint on 29.10.2013 to the local office of the appellant-firm that the aquaguard was not giving proper services and then and there, the expert engineer attended the call and on satisfactory performance, the respondent signed on the “service request activity report”, accordingly. It has also been alleged that as the warranty period was of one year, whenever the appellant-firm was called pointing out any trouble, the expert engineer of the appellant-firm then and there attended the calls and rendered satisfactory service to the respondent-customer.
5. It has also been alleged that on 01.01.2014 again the respondent made a complaint that the flow of water from the purifier was not up to the mark of his requirement and then and there the expert engineer of the appellant attended the call of the respondent and found that the aquaguard was working properly, but the “water pressure” from the supply line to the aquaguard was not up to the mark of requirement to get smooth supply of purified water and the engineer, accordingly, advised the respondent to arrange for increasing of water pressure by installation of a small pump machine immediately to get required label of water in the aquaguard in writing in the “service request activity report” dated 01.01.2014. It has also been alleged that the water purifier was functioning all along without any trouble, rather the trouble caused by the water purifier due to the fault on the part of the respondent who did not take any step to improve the water pressure by installation of a small pump to feed the water purifier sufficient/required label of water for its normal function, but the respondent never paid any heed to the said advice of the expert engineer and as such there is no deficiency in service on the part of the appellant-firm and hence, the claim of the respondent was untenable in law. It has also been alleged that the appellant had no knowledge about the filing of complaint petition by the respondent before the Ld. District Consumer Disputes Redressal Forum, West Tripura, Agartala as the appellant-firm did not receive any summon from the Ld. Forum, perhaps, it is because of transfer of the office from Rajat Villa, Dhaleswar Road No-1 to Mantribari Road, Old R.M.S. Chowmuhani, Agartala in September, 2012. It has also been alleged that as the official address of the appellant was shifted in September, 2012 to a different place, so, the notice issued from the Ld. Forum in the address of the Rajat Villa, Dhaleswar Road No-1 was not accepted by the owner of the said villa and accordingly, the process server returned the notice to the Ld. Forum with an endorsement that the notice was refused, but it does not mean that it was refused by the appellant-firm. It has further been alleged that the Ld. Forum also did not direct to the respondent–complainant to take substitute measure for service of notice by publication in the daily local newspapers or otherwise and as such the Ld. Forum proceeded with the case exparte and passed the impugned judgment on 30.07.2014 exparte.
6. It has also been alleged by reading a ”news item” ventilated in the local daily “Dainik Sambad” published on 04.08.2014 that the appellant-firm came to know for the first time about the filing of the case by the respondent-customer and the disposal of the complaint by the Ld. Forum on 30.07.2014 and the appellant-firm promptly attended the office of the Ld. Forum and obtained a copy of the judgment and order dated 30.07.2014 and after making contact with their learned counsel for legal opinion, has filed the instant appeal, being aggrieved by and dissatisfied with the impugned judgment and order dated 30.07.2014 on the grounds that the Ld. Forum failed to exercise its jurisdiction in the matter of service of summon upon the appellant-firm without exhausting all the procedures including alternative method of service through newspaper publication and proceeded exparte illegally, that the Ld. Forum ought to have applied its judicious mind to the services rendered by the appellant-firm to the complainant-customer since purchase and therefore, ought to have held that there was no negligence on the part of the firm in attending the calls whenever received from the complainant, that the Ld. Forum ought to have held that the complainant knew very well the shifting of the office of the appellant-firm to a different place, but filed the complaint mentioning the old address of the appellant and got a judgment and order in the complaint case passed exparte which is not sustainable in law and is liable to be set aside and hence, the instant appeal has been filed.                       

Points for consideration.

7.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in passing the impugned order and (2) whether the judgment under appeal is liable to be set aside or otherwise as prayed for.     

Decision with Reasons.

8.  Both the points are taken up together for the sake of convenience and brevity.
9. Going through the pleadings made out in the complaint, deposition of the complainant as P.W.1, documentary evidences, the impugned judgment and the memo of appeal, we find certain admitted facts. Admittedly, the complaint case being C.C.-29/2014 was filed by the present respondent-complainant in the Ld. District Forum, West Tripura, Agartala against the appellant-firm mentioning therein the address of the O.P. as Rajat Villa, Dhaleswar Road No-1, Agartala-799007. It is also admitted fact that there is an endorsement in the service-return of the summons issued to the appellant-firm to the effect that the addressee on perusing the summons refused to accept the same. It is also admitted fact that the complaint case being C.C.-29/2014 has been disposed of exparte as the appellant-firm did not appear in the said complaint case. It is also admitted fact that a new water purifier (Aquaguard) was installed in the residence of the complainant-respondent on the basis of the “order form-cum-receipt” dated 15.05.2013 as against change of old water filter on receipt of the amount of Rs.10,990/- after allowing a rebate of Rs.1000/- for the old one. It is also admitted that for the first 5/6 months the water purifier was functioning well. It is also admitted fact that the period of warranty was 12 months from the date of installation. It is also admitted fact that on each occasion whenever the appellant-firm was called to remove trouble of the newly installed water purifier, the engineer of the appellant-firm attended the calls and rendered services and on each occasion the complainant-consumer signed “service request activity report”. It is also found admitted position that on 01.01.2014 when the engineer of the appellant-firm attended the call of the complainant, at that time the complainant was advised in writing to take measure with a view to bring the water level smoothly to the aquaguard through creating water pressure by installation of a pump machine.  
10. It transpires from the record that during the pendency of this appeal the appellant-firm filed two separate applications along with photo copy of documents as annexure with a copy to the respondent-complainant who also filed written objection against the said applications. The learned counsel for the appellant submitted that admittedly, the appellant-firm was earlier located at Rajat Villa, Dhaleswar Road No-1, Agartala, but in the month of September, 2012 the appellant-firm has been shifted to a building located at Mantribari Road, Old R.M.S. Chowmuhani, Agartala. He also submitted that the “order form-cum-receipt” dated 15.05.2013 on the basis of which the new water purifier (Aquaguard) was installed in the residence of the complainant-respondent indicates that the new address of the appellant-firm has been mentioned at the bottom of that order, although the old address remains at the heading of that order as till then, the necessary change in the computer system was not made. He also submitted that the new water purifier was supplied to the complainant from the new address of the appellant-firm and the complainant knew very well about the new address of the appellant-firm, but the respondent-complainant in suppression of the new address has represented the appellant-firm in its old address in the complaint. He also submitted that when the summons was sent to the old address from the Ld. Forum, the owner of the said address found no reason to accept the summons as the appellant-firm already left the premises of the land-owner as tenant. He also submitted that the rent agreement and the subsequent rent receipts clearly show that the appellant-firm shifted to the new address at Mantribari Road, old R.M.S. chowmuhani, Agartala long before the filing of the complaint in the District Forum i.e. in September, 2012. He also submitted that the appellant-firm came to know about the filing of the complaint and the passing of the judgment in the said complaint case on perusing a news item published in the daily local newspaper “Dainik Sambad” on 04.08.2014. He also submitted that the present respondent-complainant knowingfully well misled the Ld. Forum by filing a complaint in the wrong address of the appellant-firm and being misled, the Ld. Forum also perusing the report of refusal of summons by the addressee as reported by the process-server proceeded with complaint case exparte and passed the impugned judgment, accordingly. He also submitted that the appellant-firm did not get any opportunity to contest the claim of the complainant and due to the misleading attempt of the complainant the impugned judgment was passed exparte in the absence of the present appellant. He also submitted that there was no deficiency on the part of the appellant-firm, rather the complainant was at fault by way of not taking any step for installation of a small pump as advised by the expert engineer of the appellant.       
11. The learned counsel for the appellant then submitted that the appellant is a renowned firm and with it its business good will is involved and if such judgment passed ex parte in the absence of the appellant is allowed to remain in force, it will destroy the good will and the business reputation of the appellant-firm. He also submitted that considering the above points and the materials on record the appellant-firm may be provided with an opportunity to contest the claim of the complainant by way of allowing the instant appeal and sending back the case on remand to the Ld. District Forum for proper adjudication of the matter in dispute between the parties finally.    
12. The respondent, Sri Rabindra Narayan Dasgupta who has conducted his case in person submitted that the appellant-firm knowingfully well did not turn up to contest the claim case being C.C. 29/2014. He also submitted that he was never informed by the appellant-firm regarding their change of place of business from Dhaleswar Road No-1 to old R.M.S. Chowmuhani, Agartala. He also submitted that when the process server of the Ld. District Forum went to serve the summons upon the present appellant-O.P., it was refused by them and accordingly, the process server submitted his report and relying on that report the Ld. Forum accepted the service of summons upon the present appellant and proceeded exparte to dispose of the case and accordingly, the impugned judgment was passed. He also submitted that the instant appeal has been filed along with application under Order 41 Rule 27 of the C.P.C. by the present appellant with a view to only delay the proceeding of the execution case being E.A.20/14 filed by him for execution of the judgment and order dated 30.07.2014. He then submitted that practically the appeal has no merit and as such the appeal along with applications filed by the appellant under Order 41 Rule 27 of the C.P.C. should be dismissed and the judgment should be affirmed.   
13. From the copy of the rent-agreement, it transpires that the appellant-firm has taken possession of the premises located at Mantribari Road, old R.M.S. Chowmuhani, Agartala in the month of September, 2012. From the” order form-cum-Invoice” dated 21.05.2013 it also appears that the new address as stated by the appellant is appearing at the bottom portion above the signature of the sales officer, although the old address of the appellant-firm is found printed at the heading of it. From the deposition of the complainant as P.W.1, it appears that this witness who is the present respondent stated in his examination-in-chief that the water purifier was installed at his residence on 15.05.2013 and the company gave warranty for the said water purifier for a period of one year and after purchase purifier was operating properly only for 5/6 months and thereafter, it started giving trouble and he reported the matter to the local service centre at R.M.S. Chowmuhani, Agartala. It appears that the location of the service centre of the appellant-firm at R.M.S. Chowmuhani, Agartala is the new address of the appellant-firm. The first “service request activity report” was of the date 29.10.2013. The complaint case being C.C. 29/14 was filed in the Ld. District Forum, West Tripura, Agartala on 03.04.14. So, it is evident that the complainant-respondent Rabindra Narayan Dasgupta knew very well before the filing of the complaint in the District Forum that local service centre of the appellant-firm in Agartala is at Mantribari Road, old R.M.S. Chowmuhani, Agartala, but the present respondent as complainant filed the complaint in the Ld. District Forum against the present appellant-firm in his old and abandoned address at Dhaleswar Road No-1, although the appellant-firm then was not located and working from the said old address. So, it is clear that the notice was not refused by the present appellant and as such, it is also clear that the complaint case was proceeded exparte without service of summons upon the present appellant and the judgment passed without proper service of summon cannot be sustained in the eye of law. So, irrespective of the merit of the case, the impugned judgment cannot be sustained in the eye of law from the stand-point of service of summons upon the appellant-O.P. and therefore, the appellant as O.P. is entitled to get an opportunity to contest the claim of the complainant filed under Section 12 of the Consumer Protection Act, 1986. That being the position, we are of the view that it is a fit case to send back on remand to the Ld. Forum for adjudication of the matter in dispute providing an opportunity to both the parties for adducing evidences in support of their respective cases. 
14. In view of the above, we are sending back the case on remand to the Ld. District Forum and as such the impugned judgment dated 30.07.2014 passed by the Ld. District Forum is set aside and the appeal is allowed accordingly, but without any cost. We make it clear that we have not entered into the merit of the case and decided nothing finally on merit. While remanding the case, we find it appropriate to give certain directions following which the complaint case shall be disposed of by the Ld. District Forum which are as follows :-

1. The case is going back on remand to the Ld. District Forum, West Tripura, Agartala. Both the parties are directed to appear before the Ld. District Forum on 18.02.2015.
2. The Ld. Forum is directed to give opportunity to the appellant-O.P.(firm) to submit its written objection against the application of the complainant filed under Section 12 of the Consumer Protection Act, 1986 within the time to be fixed by the Ld. Forum.
3. The Ld. Forum is further directed to provide opportunities to both the parties to adduce evidences in support of their respective cases.
4. The Ld. District Forum shall hear and dispose of the case, according to law, as early as possible without granting any unnecessary adjournment to either of the parties.  

15. Let a copy of the judgment along with record of C.C.-29/2014 be transmitted to the Ld. District Forum, West Tripura, Agartala for information and taking necessary action in the light of the observation/ directions made in the judgment.  

                      MEMBER                                             PRESIDENT

                            State Commission                                    State Commission

                                    Tripura                                                      Tripura