Tripura

StateCommission

A/41/2016

Bharti Hexacom Limited - Complainant(s)

Versus

Sri. Gitesh Ranjan Kar - Opp.Party(s)

Mr. S.Sarma, Mr. P. Majumder, Mr. S. Borthakur

03 Apr 2017

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

 

Case No.A.41.2016

 

 

1. Bharti Hexacom Limited,

Bharti Crescent 1,

Nelson Mandela Road, Vasant Kunj, Phase-II,

New Delhi-110070, India.

(Its local office at S.K. Bose Lane, Dhaleswar, near Old Central Jail, Agartala, West Tripura).

 

2. The In-charge, Bharti Hexacom Limited,

Modrina Mansion, Laitumkhrah,

Shillong - 793003, Meghalaya.

 

3. The In-charge, Bharti Airtel Limited,

Bharti House, Sixmile,

Guwahati, 781022.

… … … … … … … … … Appellants.

 

 

1. Sri Gitesh Ranjan Kar,

S/o Late Monoranjan Kar,

Abhoynagar, Agartala,

District - West Tripura.

… … … … … Respondent/Complainant.

2. Saha Varieties,

Proprietor, Sri Animesh Saha,

Abhoynagar, Agartala,

District - West Tripura.

… … … … … Proforma Respondent.

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Chandra Sharma,

Member,

State Commission, Tripura.

 

For the Appellants:                                    Mr. Pranabashis Majumder, Adv.

For the Respondent No.1:                          Absent.

For the Proforma Respondent No.2: Mr. Surajit Bhattacharya, Adv.

Date of Hearing and Delivery of Judgment: 03.04.2017.

J U D G M E N T [O R A L]

 

 

U.B. Saha,J,

This appeal is filed by three appellants namely, Bharti Hexacom Limited, In-charge, Bharti Hexacom Limited, Modrina Mansion, Laitumkhrah, Shillong and In-charge, Bharti Airtel Limited, Bharti House, Sixmile, Guwahati under Section 15 of the Consumers Protection Act, 1986 challenging the judgment dated 04.08.2016 passed by the Ld. District Consumers Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No. C.C. 64 of 2014 whereby the Ld. District Forum allowed the complaint filed under Section 12 of the C.P. Act, 1986 directing the appellants In-charge, Bharti Hexacom Limited, Laitumkhrah and In-charge, Bharti Airtel Limited, Bharti House, Sixmile (hereinafter referred to as opposite party nos.1 & 2) to pay Rs.10,000/- to the respondent no.1 (hereinafter referred to as complainant) as compensation and also to pay Rs.2,000/- towards cost of litigation payable within one month, if the same is not paid, then it will carry interest @9% per annum.      

3. Heard Mr. Pranabashis Majumder, Ld. Counsel appearing for the appellants as well as Mr. Surajit Bhattacharya, Ld. Counsel appearing for the proforma respondent, Saha Varieties (hereinafter referred to as opposite party no.3). None appears on behalf of the complainant even after receipt of notice though the name of Mr. Pradyut Maishan, Ld. Counsel for the complainant has been shown in the cause-list.
4. The present appellants have approached this Commission for second time. Earlier this Commission set aside the judgment dated 12.08.2015 passed by the Ld. District Forum in the aforesaid Case No. C.C. 64 of 2014 whereby the Ld. District Forum allowed the complaint petition and directed the opposite party nos.1 & 2 to pay Rs.7,000/- to the complainant as compensation for mental agony and harassment with a further direction to pay Rs.3,000/- to the complainant as cost of litigation payable within 30 days from the date of receipt of copy of the judgment, failing which, the amount will carry interest @9% per annum till the payment is made in full and remanded the matter to the Ld. District Forum with the following directions:-

 

1. The Ld. District Forum on receipt of the record of CC-64/2014 along with the copy of the judgment shall cause notices to be served upon the complainant and the O.P. No.3 for their appearance before it.
2. The Ld. District Forum shall pass order directing the complainant to amend the cause-title of the complaint in respect of name and address of the opposite parties within the time to be fixed by the Ld. Forum.
3. The Ld. District Forum shall provide an opportunity to the opposite parties, appellants herein, to file the written objection against the complaint petition.
4. The Ld. Forum also shall pass order providing opportunity to the opposite parties to adduce evidences in support of their respective cases.
5. The Ld. District Forum shall dispose of the case afresh after taking into consideration the evidences already on record and also the evidences to be adduced by the parties before it in accordance the law.
6. The appellants are directed to appear before the Ld. District Forum, West Tripura, Agartala on 18.03.2016 to receive necessary direction from the Ld. District Forum.
7. Let a copy of the Judgment along with the record of CC-64/2014 be transmitted to the Ld. District Forum forthwith for information and proceeding according to law as directed in the judgment.”

5. Facts of the case in short are that the complainant purchased one SIM card for getting mobile telephone connection No.8732038195 from the opposite parties ‘Bharti Hexacom Ltd./Bharti Airtel Ltd.’ on payment of Rs.98/- after submission of all relevant documents as required. The opposite party no.3, Saha Varieties, the proforma respondent herein and the local agent of the opposite party Bharti Hexacom Ltd. issued SIM card to the complainant for mobile connection in the aforesaid mobile and told that the validity of the same would be one month with internet facility. Thereafter, the mobile connection was activated in the aforesaid mobile, but after 8/10 days, the said mobile phone connection was deactivated. The complainant brought the matter to the notice of the local agent i.e. the opposite party no.3 orally and subsequently by written representations dated 10.11.2012 and 15.01.2013, but the opposite parties did not respond to his complaint. Thereafter, the complainant by a letter dated 10.12.2012 requested the opposite parties for cancellation of the registration of the mobile phone connection, but it yielded no results. Finding no other alternative, the complainant served an Advocate’s Notice on 09.07.2013 upon the appellants-opposite party nos.1 & 2 claiming compensation for deficiency in service on the part of the said opposite parties. But he received no response. Then the complainant-petitioner filed a complaint petition before the District Forum.   

On admission of the complaint, notice was issued to the respective parties in the complaint petition and the opposite party no.3, the local agent of Bharti Hexacom Ltd. opposite party nos.1 & 2 appeared and filed written statement admitting most of the allegations. Thereafter, the Ld. District Forum considering the pleadings of the parties available before it and the evidence on record passed the judgment dated 12.08.2015 in the aforesaid complaint case whereby and whereunder the District Forum directed the opposite party nos.1 & 2 to pay Rs.7,000/- to the complainant as compensation for mental agony and harassment and also to pay Rs.3,000/- to the complainant as cost of litigation as stated (supra).

6. Being aggrieved by the aforesaid judgment dated 12.08.2015, the present appellants preferred an appeal being Appeal Case No. A/26/2015 on 30.09.2015 before this Commission wherein the appellants had contended that they have not been given any opportunity to be heard and present their case, that the judgment dated 12.08.2015 was a defective one for denial of fundamental rights, as no Notice was served upon them in respect of the complaint case of the complainant and there was no occasion to take part in the proceeding. As a result, the Ld. District Forum proceeded ex parte against the appellants without any basis and without giving any opportunity to the appellants to contest the claim by way of serving notice. It is also contended that as they did not receive notice of the District Forum, they could not appear before the District Forum. Not only that, the complainant had wrongly spelt the name of the opposite party Company in the cause-title of the complaint as ‘Bharati Hexacon Ltd.’ in place of ‘Bharti Hexacom Ltd.’ and the circle office address has wrongly been described as ‘Laitumkh’ though the actual address of the appellants was ‘Modrina Mansion, Laitumkhrah’ at Meghalaya.
7. After hearing the appellant-opposite parties as well as the complainant, this Commission set aside the judgment dated 12.08.2015 and remanded the matter to the Ld. District Forum. This Commission while deciding the appeal against the judgment dated 12.08.2015 observed as follows:-

“19. We have gone through the cause-title of the complaint and the copy of the notices issued to both the opposite parties, the appellants herein, lying with the record of the Ld. District Forum. We also perused the connected Order dated 22.10.2014 passed by the Ld. District Forum in case No.CC-64/2014 in connection with the service of notices upon both the opposite parties, appellants herein after the institution of the said complaint case. From the Order dated 22.10.2014, we find that the Ld. District Forum passed the order in this regard to the effect that the opposite parties have not recorded appearance despite issuance of notices to them by Speed Post on 27.08.2014. It is also found recorded in the said order that it is presumed that notices have been duly served upon the opposite parties and since the opposite parties have not appeared despite receipt of notices, the case would proceed ex parte against them. Going through the order sheets, it appears to us that the Order dated 20.09.2014 passed by the Ld. District Forum is also found relevant in this regard which speaks as such, “………..Notices were issued to the O.Ps by Speed Post on 27.08.14. It is not clear to us whether the notices were duly served upon the O.Ps. So, wait till the next date. Fix 22.10.14 for further order.”

20. From the above two orders it is palpable that the Ld. District Forum without receiving any intimation or information regarding service of notices upon both the present appellants passed the Order dated 22.10.14 holding that notices have been duly served upon the opposite parties. The Order dated 22.10.2014 does not disclose on what basis the Ld. District Forum has drawn the said presumption of service of notices upon the opposite parties, the appellants herein. But the fact remains that in the copy of the notices lying with the record of the Ld. District Forum it appears that there is a mistake regarding name of the appellant company and also its address. Having such a mistake in respect of name and address of the opposite parties as appearing in the cause-title of the complaint as well as in the copy of the notices, we are of the view that the submission of the Ld. Counsel for the appellants to the effect that the opposite parties, the appellants herein, actually received no notices from the Ld. District Forum regarding the institution of the said complaint case against them, is believable and acceptable.So, the proceeding of the complaint case ex parte against the present appellants in the Ld. District Forum without service of notices upon them is against the principal of natural justice. We are also of the view that the findings of the Ld. District Forum drawing the presumption of service of notices upon the opposite parties as appearing in the Order dated 22.10.2014 for proceeding ex parte without any basis to draw such a presumption cannot be sustained in the eye of law and the impugned judgment passed by the Ld. District Forum accordingly, is not sustainable from that standpoint.

21. It is needless to say that the present appellants who are O.P. nos.1 & 2 in the Ld. District Forum, although has been described in the wrong name and address, are legally entitled to get the notices regarding the institution of the complaint seeking relief against them. At the same time, they are also legally entitled to contest the claim of the complainant by filing the written objection and also by way of adducing evidences in support of its case. In view of the above facts and circumstances, we are of the view that it is found a fit case to send back the same on remand to the Ld. District Forum for fresh adjudication after allowing the present appellants to file the written objection and adduce evidences. At the same time, it is also found necessary to direct the complainant, respondent No.1 herein, to amend the cause-title of the complaint in respect of only name and address of the present appellants. That being the position, the impugned judgment should be set aside. In this regard, we make it clear that we did not enter into the merit of the case.”

8. As directed by this Commission in Appeal No. A/26/2015, the appellant-opposite parties appeared on 18.03.2016 before the Ld. District Forum and the District Forum after receipt of the record from this Commission issued notice upon the complainant, but the complainant did not appear to amend the cause-title of the complaint as directed by the Commission. Appellant-opposite parties filed written statement and also produced statement on affidavit-in-chief of one witness, but the complainant did not appear to cross-examine the witness as produced by the appellant-opposite parties. The opposite party no.3, the local agent, Saha Varieties also did not appear before the District Forum after remand of the case. In absence of the complainant and even when the cause-title of the complaint was not amended as per direction of this commission, the Ld. District Forum took up the matter for final disposal and finally passed the impugned judgment.
9. Mr. Majumder, Ld. Counsel appearing for the appellant-opposite parties while urging for setting aside the impugned judgment of the District Forum would contend that the Ld. District Forum ought not to have passed the impugned order when the complainant neither appeared before it nor amended the cause-title. He further submits that admittedly, the appellant-opposite parties did not get any opportunity to cross-examine the complainant and disprove the case of the complainant. He further contended that the Ld. District Forum on the same set of the evidence available before it earlier enhanced the award from 10,000/- to 12,000/- without giving any reason and considering the evidence adduced by the appellants. He finally submits that the Ld. District Forum ought to have decided that for non-appearance of the complainant and non-amendment of complaint petition, the complainant has failed to make out any case against the present appellants and thus the complaint is liable to be dismissed.
10. Mr. Bhattacharya, Ld. Counsel appearing for the proforma respondent, the opposite party no.3 reiterates the written statement submitted by it before the Ld. District Forum.
11. None appears for the complainant, but from record it appears that on 09.02.2017, one Ld. Counsel Mr. Pradyut Maishan appearing on behalf of the complainant on instructions prayed for three weeks’ time as the complainant lost his wife, which was allowed and the matter was again took up on 04.03.2017, but none appeared on behalf of the complainant. Thereafter, on 09.03.2017, Mr. Pradyut Maishan, Ld. Counsel has appeared on behalf of the complainant by way of filling vokalatnama.
12. After going through the impugned judgment we are of the opinion that the Ld. District Forum not only failed to consider the evidence adduced by the appellant-opposite parties, but also decided the matter in absence of complainant and without amendment of the cause-title of the complaint case, which itself is bad in law as cross-examination of the complainant by the opposite parties is their basic right. Admittedly, the appellant-opposite parties did not get any opportunity to cross-examine the complainant, as the complainant was absent before the District Forum and also did not comply with the directions of this Commission in the earlier appeal. We are of the further view that affidavit-in-chief in absence of cross-examination itself cannot be treated as evidence.
13. It is also not clear to us that on what basis the Ld. District Forum enhanced the compensation and cost from Rs.10,000/- to Rs.12,000/- in absence of the complainant, more so, the District Forum did not give any clarification or reasons for such enhancement.
14. In view of the above, the appeal is allowed. The impugned judgment dated 04.08.2016 passed in Case No. C.C. 64 of 2014 is hereby set aside and the case is again sent back on remand to the Ld. District Forum to decide the case afresh after issuing notice to the respective parties. It is made clear that if the complainant does not amend the cause-title of the complaint and appear for his cross-examination, then the Ld. District Forum would give its definite findings for non-appearance of the complainant and non-amendment of the cause-title and decide the matter in accordance with law.

Appellants-opposite parties as well as the proforma respondent/opposite party no.3 are directed to appear before the Ld. District Forum on 17.04.2017.   

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

 

 

 

 

MEMBER State Commission Tripura MEMBER State Commission Tripura PRESIDENT State Commission Tripura