Date of Judgment: Friday, 14th day of August, 2015
The instant appeal is directed against the Judgment and Order passed by Ld. District Consumer Disputes Redressal Forum, Kolkata Unit-I on 31.01.2013 in Complaint Case being No.CC/133/2012 allowing the the same ex-parte with cost against all the Opposite Parties directing the O.P. Nos.2,3&4 to refund Rs.37,500/- jointly and severally being the cost of one Air Conditioner machine in question and Rs.1,525/- being the installations charge of the same, further directing all the O.P.s to pay Rs.20,000/- towards compensation for harassment and Rs.5,000/- toward cost of litigation to the Complainant within 45 days from the date of communication of the order to them, in default, interest @ 9% p.a. would accrue over the entire sum due to the credit of the Complainant.
Being aggrieved by the impugned order the Opposite Parties being No.2,3&4 i.e. the manufacturer of the machine in question have preferred the instant appeal on the grounds inter-alia, the Ld. District Forum erred in arriving at the conclusion that the machine in question suffered from manufacturing defects without obtaining any expert opinion about the alleged defect occurred after eleven months from the date of purchase in the machine in question.
The case of the Complaint, in short, is that the Complainant (Respondent No.1 herein) purchased an Air Conditioner having capacity of 1.5. ton made by the Appellant Company on 09.06.2010 at a consideration of Rs.37,500/-. On16.06.2010 the said A.C. was installed by the O.P. No.2&3 (Appellant Nos.2&3 herein). Subsequently, the Complainant found that the said Air Conditioner was not working properly. Accordingly, the Complainant informed the same to the O.P.No.3 Servicing Centre which on 18.05.2011 after checking the Air Conditioner found gas leakage problem in it and repaired the same by replacing defective part of the said machine which was under warranty at that point of time. Subsequently, on 01.09.2011 the Complainant again noticed defect in the machine. He informed the Service Centre and the Service Centre after checking A.C. on 02.09.2011 found that it had defect in back pressure and removed the defect. Subsequently, on 21.03.2012 further defect was developed due to gas shortage in the said A.C. The Complainant has further stated that since he purchased a defective A.C. he had to face so many problems and, therefore, he requested the O.P.s on several occasions to replace the defective A.C. by better one to which the O.P.s had paid no heed. Therefore, the Complainant by filing the Petition of Complaint before the Ld. District Forum has prayed for directions upon the O.P.s to refund the value of the said A.C. along with interest @ 18%, replace the defective A.C. by new one, pay compensation of Rs.50,000/- for causing harassment and mental agony and pay litigation cost of Rs.5,000/-.
Ld. District Forum recorded that the O.P.s did not contest the case by filing W/V and the matter was heard ex-parte against them.
In course of hearing of the appeal Ld. Advocate for the Appellant has submitted that although the notice has not been served upon the O.P.No.4, the Ld. District Forum proceeded with the case ex-parte against him which is not permissible under the law and, further, no expert opinion has been adduced in respect of alleged defect in the A.C. in question n but, in spite of that, the Ld. District Forum held that the A.C. had manufacturing defect. In support of his contention Ld. Advocate for the Appellant has furnished certified copy of the orders dated 09.04.2012, 05.06.2012, 05.07.2012, 21.08.2012, 18.09.2012, 14.11.2012, 14.01.2013 and 31.01.2013 passed by the Ld. District Forum below.
Ld. Advocate for the Respondent No.1 has submitted that O.P.No.4 is the Manager, Service Operation of manufacturing company situated in New Delhi and the O.P. Nos.2&3 are regional office of the manufacturing company at Kolkata and, therefore, the knowledge regarding filing of complaint before the Ld. District Forum was well within the knowledge of the O.P. No.4 and hence, he need not be served with notice separately. Ld. Advocate for the Respondent No.1 has further submitted that from the documents on record it will be evident that the A.C. had the manufacturing defect and, so that, there is no heed to adduce expert opinion separately.
Having heard the submissions made by the Parties and on perusal of the materials on record it appears that the moot points are two-fold i.e. (1) non-service of the notice upon the O.P.No.4 and (2) absence of expert opinion regarding alleged defects in the A.C. in question.
It appears from the record that vide Order No.3 dated 05.06.2012 the Ld. District Forum fixed 05.07.2012 for W/V by O.P. Nos.2&3 and S/R of the O.P. No.4. However, vide Order No.4 dated 05.07.2012 Ld. District Forum fixed 21.08.2012 for filing W/V by all the O.P.s without fail mentioning that A/D in respect of O.P. Nos.1.2&3 had been received. On 21.08.2012 Ld. District Forum fixed 18.09.2012 for evidence by the Complainant. It is true that no notice has been served upon the O.P. No.4. But, fact remains that the O.P. No.4 is the Manager, Service Operation of the Manufacturer Co. whose Kolkata offices are made party as O.P. Nos.2&3. The purpose of serving notice upon a party is to bring the matter of filing case into the knowledge of the said party. Though in the instant case, the Kolkata Offices of the O.P.No.4 were served with the notices, the O.P.No.4 had not been served with any notice. It is mandatory that parties in a case should be served with notice so that they may have the knowledge regarding the case filed against them.
In that view of the matter, we think that the Ld. DCDRF, Unit-I, Kolkata was not justified to proceed with the case and decide the same ex-parte without complying with the provision contained in Section 28A of the Act. We are constrained to interfere with the impugned order.
For the reasons aforesaid, the appeal is allowed on contest but without any order as to cost.
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. DCDRF, Unit – I, Kolkata on 11.9.2015 to receive further order from the said authority.
Registrar of this Commission is asked to send a copy of the order to Ld. DCDRF, Unit-I, Kolkata for information and necessary action.
