Tripura

StateCommission

A/26/2015

Bharti Hexacom Limited & Others. - Complainant(s)

Versus

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

Mr. P.Majumder

10 Mar 2016

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

TRIPURA

 

APPEAL CASE No. A/26/2015.

 

 

1. Bharti Hexacom Ltd.,

Bharti Crescent 1, Nelson Mandela Marg,

Vasant Kunj, Phase-II, New Delhi – 110070, India.

 

 

2. I/C, Bharti Hexacom Ltd.,

Modrina Mansion, Laitumkhrah

Main Road, Shillong – 793003, Meghalaya.

 

 

3. In-Charge,

Bharti Airtel Limited,

Bharti House, Sixmile, Guwahati – 781022.

 

                   ….    ….    ….    ….    Appellants/Petitioners.

 

                   Vs

 

1. Sri Gitesh Ranjan Kar,

Son of Late Monoranjan Kar,

Abhoynagar, New Star Club, Ujjan Abhoynagar,

Agartala, West Tripura, PIN-799005.

 

 

2. Saha Varieties,

Proprietor - Sri Animesh Saha,

Abhoynagar, Agartala, West Tripura.

 

                              ….    ….    ….    ….    Respondents/Opposite Parties.

 

 

PRESENT

 

HON’BLE MR.JUSTICE S.BAIDYA,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR.NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

 

For the Appellants             :         Mr. Pranabashis Majumder, Adv.

For the Respondent No.1    :         Mr. Purushuttam Roy Barman, Adv., Mr. Samarjit

                                                  Bhattacharjee and Mr. Kawsik Nath, Adv.

For the Respondent No.2    :         Mr. Swarup Pandit, Adv.   

Date of Hearing       :         29.02.2016.

Date of delivery of Judgment:      10.03.2016

 

 

 

J U D G M E N T

 

S. Baidya, J,

This appeal filed on 30.09.2015 by the 3 (three) appellants under section 15 of the Consumer Protection Act, 1986 is directed against the Judgment dated 12.08.2015 passed by the Ld. District Consumer Disputes Redressal Forum (in short District Forum), West Tripura, Agartala, in case No.CC-64/2014, whereby the Ld. District Forum allowed the complaint filed under section 12 of the C. P. Act, 1986 directing 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 costs of litigation payable within 30 days of the receipt of the copy of the judgment, failing which the amount payable will carry interest @9% per annum till the payment is made in full.  

2. The case of the appellants, as narrated in the memo of appeal, in brief, is that one Gitesh Ranjan Kar of Abhoynagar, Agartala, West Tripura filed an application under section 12 of the Consumer Protection Act, 1986 before the Ld. District Consumer Disputes Redressal Forum, West Tripura, Agartala alleging deficiency in service on the part of the appellants for activation of SIM of the appellant company in favour of the complainant and other reasons.
3. It has been alleged in the complaint that the complainant obtained a mobile phone connection being No.8732038195 from Bharti Hexacom Ltd. after paying Rs.98.00 and submission of all relevant documents as required under the law, and the opposite party No.3, Saha Varieties, the local agent of appellant company issued SIM card of the said mobile connection to the complainant stating that the validity of the same would be for one month with internet facility and after that the said mobile connection was activated, but after 8/10 days, the said mobile phone connection was deactivated and therefore, the complainant brought the matter to the notice of the said local agent verbally followed by written representations dated 10.11.2012 and 15.01.2013. It has also been alleged that the O.P. did not make any response to the said letters and as such, the complainant by a letter dated 10.11.2012 requested the O.P. for cancellation of the registration of the mobile phone connection, but it was in vain and finding no alternative, the complainant served an advocate’s notice dated 09.07.2013 upon the O.P. claiming compensation for deficiency in service and subsequently filed a complaint before the Ld. District Forum under section 12 of the C.P. Act, 1986.

11. It has also been alleged that on receipt of the summons, the present respondent No.2 who is the O.P.No.3 in the Ld. Forum, the local agent of Bharti Hexacom Ltd. (O.P. nos.1 & 2) appeared and filed a written objection admitting most of the allegations.
12. It has also been alleged that the Ld. District Forum after hearing the argument of both sides and considering the evidences and other materials passed the impugned judgment dated 12.08.2015 holding that the O.P. nos.1 & 2, appellants herein, are liable for negligence and deficiency in service and accordingly, passed the impugned judgment and thereby being aggrieved and dissatisfied, the appellants have preferred the instant appeal assailing the impugned judgment dated 12.08.2015 on the grounds that the appellants have not been given an opportunity to be heard or present its case, that the impugned judgment is defective being denial of fundamental rights, that no court-notice was served upon the appellant company in respect of the present matter and thus, there was no occasion on its part to take any action in this regard, that the Ld. Forum proceeded ex parte against the present appellants without any basis and without giving any opportunity to the appellant company to contest the claim by way of serving notice upon it, that the present appellants could not appear to contest  the case due to non-receipt of the notices, that the complainant has wrongly spelt the name of the O.P. 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”, that the impugned judgment is a product of non-application of mind and mis-appreciation of evidences on record and that the findings of the Ld. Forum that the appellants were negligent and deficient in rendering service to the complainant, is totally wrong, illegal, perverse, and the same is liable to be set aside and hence, the appellants have preferred the instant appeal.

 

Points for Consideration

13. The points for consideration are (i) whether the Ld. District Forum was proper, legal and justified in awarding compensation by the impugned judgment and (ii) whether the impugned judgment under challenge in this appeal is liable to be set aside as prayed for.

Decision with Reasons     

14. Both the points are taken up together for the sake of convenience and brevity.
15. At the outset, it is found necessary to mention that neither the Ld. Advocate for the respondent No.1-complainant nor the Ld. Advocate for the respondent No.2, local agent appeared on the date of final hearing of the appeal.
16. The Ld. Counsel for the appellants has assailed the impugned judgment on the grounds that the actual name of the appellants is “Bharti Hexacom Ltd.”, but the complainant-respondent No.1 in the complaint has described the present appellants as “Bharati HexacoN Ltd.” He also submitted that the name of the appellant No.3 is “the In-charge, Bharti Airtel Ltd., but the complainant, respondent No.1 in the complaint has wrongly described it as “The In-charge, Bharati Airten Ltd.” as O.P.No.2. He also submitted that the Circle Office address has been wrongly described as “LAITUMKH”, although the actual office address of the Circle Office is at LAITUMKHRAH Main Road, Shillong. He also submitted that due to the wrongly describing the name of the company and also its circle office address, the notices, if any, issued from the Ld. District Forum towards the opposite parties, the appellants herein, have not been served at all and as such, the present appellants could not know about the institution of the said complaint case being No.CC-64/2014. He also submitted that not only so, the present appellants as opposite parties in the said complaint case could not get any opportunity to contest the claim of the present respondent No.1-complainant by filing written objection and as a result, the Ld. District Forum assuming that the notices have been served upon the present appellants, proceeded ex parte against the present appellants and passed the impugned judgment.
17. The Ld. Counsel for the appellants also submitted that although the Ld. District Forum received nothing to hold that the notices were duly served upon the present appellants in the said complaint case, but passed the impugned judgment which is against the clear violation of the principle of natural justice and as such, it cannot be sustained in the eye of law and is liable to be set aside.
18. The Ld. Counsel for the appellants further submitted that if the present appellants are not given an opportunity to contest the claim of the complainant, they will be highly prejudiced and in this regard, he also submitted for giving an opportunity to the present appellants to contest the complaint petition by filing the written objection after setting aside the impugned judgment. He also submitted that in view of the above position, the case may be sent back on remand to the Ld. District Forum for fresh adjudication of the matter in dispute.
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.
22. In view of the above, the appeal is allowed. The impugned judgment dated 12.08.2015 passed by the Ld. District Forum, West Tripura, Agartala in case no.CC-64 of 2014 stands set aside. The complaint case being CC No.64 of 2014 is sent back on remand to the Ld. District Forum with 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. 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura