Chandigarh

StateCommission

A/24/2015

M/s Kulja Industries Limited - Complainant(s)

Versus

The General Manager(Complaints), Skoda Auto India Private Limited - Opp.Party(s)

Avinash Sharma & Gurinderjit Singh, Adv.

02 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

First Appeal No.	:	24 of 2015
Date of Institution	:	02.02.2015
Date of Decision	:	02/03/2015

 

M/s Kulja Industries Limited, Plot No. 1, Industrial Estate, Chambaghat, Solan 173213 (H.P.), through its Managing Director Sh. Bhawani Dutt

……Appellant/Complainant

 

V e r s u s

1.       The General Manager (Complaints), Skoda Auto India Private Limited, A-1/1 MIDC Five Star Industrial Area, Shendra, Aurangabad-431201

2.       M/s Krishna Auto Sales, 177-E, Ind. Area, Phase-1, Chandigarh 160002, through its Authorized Representative.

              ....Respondents/Opposite Parties

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR.DEV RAJ, MEMBER.

                MRS.PADMA PANDEY, MEMBER

 

Argued by: Sh. Gurinderjit Singh, Advocate for the appellant.

                   Sh. Jagvir Sharma, Advocate for the respondents.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

              This appeal is directed against the order dated 02.01.2015 rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the Consumer Complaint No.159 of 2014, in default of appearance of the complainant (now appellant).    

2.        The facts, in brief, are that the complainant purchased a vehicle, made SKODA Auto, from the Opposite Parties. The said vehicle was subsequently allotted registration no. HP-14A-0065, by the Registering Authority, Solan, Himachal Pradesh. It was stated that the said vehicle, developed a manufacturing defect. As such, the said vehicle was taken to the workshop of the Opposite Parties, a number of times, for rectification of the defects, but they failed to do so. It was further stated that the Opposite Parties were requested to rectify the defects, in the said vehicle, or if the same were beyond repairs, to replace the same (vehicle), with a new one, but to no avail. It was further stated that, left with no other alternative, legal notice dated 16.07.2012 Annexure C-8, was also served upon the Opposite Parties, but to no avail.  It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, claiming various reliefs, against the Opposite Parties.
3.        Opposite Party No.2, in its written version, pleaded that the complaint was barred by time. It was further pleaded that the District Forum had no territorial jurisdiction, to entertain and decide the complaint. It was further pleaded that since the vehicle, in question, was purchased by the Company, meaning thereby for commercial use, the consumer complaint was not maintainable. It was denied that there was any manufacturing defect, in the vehicle, in question. It was stated that the complainant was asked a number of times, to get the vehicle repaired, on payment of the requisite amount, but to no avail. It was further stated that the complainant was bound to make the payment for repairs to be carried out, after the expiry of the period of warranty. It was further stated that the vehicle had covered more than 1,10,000 kilometers, during the period of six years. It was further stated that since the vehicle, was beyond the warranty period, as such, an estimate of repairs to the tune of Rs.50,000/-, for replacement of various parts, was given, but the same was not approved by the complainant, and, as such, the same (vehicle) was lying in the workshop of the Opposite Parties. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4.        The Parties led evidence, in support of their case.
5.        On 02.01.2015, the complaint was called many times, but none entered appearance, on behalf of the complainant, as a result whereof, the same was dismissed in default of its appearance.
6.        Feeling aggrieved, the instant appeal, was filed by the appellant/complainant, against the order dated 02.01.2015.
7.         We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully. 
8.        The Counsel for the appellant/complainant submitted that, no doubt, on 02.01.2015, none put in appearance, on behalf of the appellant/complainant, in the District Forum, as a result whereof, the consumer complaint was dismissed in default of its appearance. He further submitted that the Counsel concerned could not put in appearance, in the District Forum, on 02.01.2015, on account of the reason that he (Counsel) had to go out of station, alongwith his family, due to some personal difficulty. He further submitted that the Counsel concerned had also filed adjournment application, in the office of the District Forum, but the Registry failed to attach the same with the complaint file, for the reasons, best known to it. He further submitted that on 05.01.2015, it came to the knowledge of the Counsel concerned, that the consumer complaint had already been dismissed in default of appearance of the complainant/appellant. He further submitted that, on account of the reasons, aforesaid, none appeared in the District Forum, on 02.01.2015, when the complaint was called. He further submitted that absence of the representative of the complainant, on  02.01.2015, was neither intentional, nor deliberate, but for the reasons, referred to above. He further submitted that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to  it (appellant/complainant), as in that event, it would be condemned unheard. He further submitted that, thus, the order of the District Forum, being illegal, is liable to be set aside.
9.        On the other hand, the Counsel for respondents/Opposite Parties, submitted that the absence of the complainant (now appellant), on 02.01.2015, in the District Forum, was intentional and deliberate. He further submitted that he had no objection, if the order impugned is set aside, subject payment of costs, to meet the ends of justice.
10.        After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the parties, and on going through the record, we are of the considered opinion, that the appeal deserves  to be accepted, and the case is liable to be remanded back, for fresh decision, on merits, in accordance with law, for the reasons, to be recorded hereinafter.  It may be stated here, that perusal of the District Forum record, reveals that vide order dated 02.04.2014, notice was ordered to be issued to the Opposite Parties, for 12.05.2014, by the District Forum.  On 12.05.2014, the Counsel for the Opposite Parties, put in appearance, and filed his vakalatnama. As such, the consumer complaint was adjourned to 06.06.2014, for filing reply and evidence, on behalf of the Opposite Parties. On 06.06.2014, Sh. Jagvir Sharma, filed vakalatnama, on behalf of Opposite Party No.1 and his power of attorney on behalf of Opposite Party No.2. Reply on behalf of Opposite Party No.2 was also filed on the said date. On the other hand, Sh. Jagvir Singh, Advocate, made a statement, that he did not wish to file separate reply, in respect of Opposite Party No.1, and, as such,  adopted the reply filed by Opposite Party No.2. As such, the consumer complaint was adjourned to 08.07.2014, for filing rejoinder and evidence, if any, by the parties. On 08.07.2014, an application was filed by the complainant, with a request to direct the Opposite Parties, not to sell the vehicle, in question, till final disposal of the consumer complaint. Statement in this regard, was made by the Opposite Parties, on the said date. Thereafter, the consumer complaint was adjourned to 25.07.2014, fir filing rejoinder by the complainant, and evidence, if any, by the parties. Thereafter, the consumer complaint was adjourned to various dates. Finally, on 02.12.2014, the Counsel for the parties, stated that there was likelihood of amicable settlement between the parties, as a result whereof, the consumer complaint was ordered to be put up before the Lok Adalat, on 06.12.2014. Thereafter, the consumer complaint was adjourned to 18.12.2014, but the settlement was not arrived at, between the parties. Finally, on 18.12.2014, the case was adjourned to 02.01.2015, for consideration of the application dated 08.08.2014, moved by the complainant on 04.09.2014, for the appointment of an expert/motor engineer for mechanical examination of the car, in question. However, as stated above, on the said date i.e. 02.01.2015, the complaint was called many times, but none entered appearance, on behalf of the complainant, on account of the reason, that its Counsel had to go out of station, alongwith his family, due to some personal difficulty, as a result whereof, the consumer complaint, was dismissed in default of its (complainant) appearance, by it (District Forum).
11.        It may be stated here, that on 02.01.2015, the consumer complaint was fixed for consideration of the application dated 08.08.2014 aforesaid. It means that on 02.01.2015, the complainant was not to do anything. Even, in the absence of the complainant, the District Forum could have passed order, on the application dated 08.08.2014, after hearing the Counsel for the Opposite Parties, but it did not do so. In our considered opinion, in the interest of justice, the District Forum should have granted one more opportunity, to the complainant, but it did not, and straightway dismissed the complaint in default of its appearance. It is settled principle of law, that every lis should normally be decided, on merits, than by resorting to the hyper- technicalities. When the hyper-technicalities, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same.
12.        No doubt, there was negligence, on the part of the Counsel for the complainant, as it was required of him, to reach the District Forum, on the date fixed i.e. 02.01.2015, and if, he had to suddenly go out of station, alongwith his family, due to some personal difficulty, he (Counsel) could have make a call and instruct his Junior Counsel, to put in appearance, or request it (District Forum), by moving an application,  seeking exemption from appearance, on that date, but he failed to do so. No doubt, it was submitted by the Counsel for the appellant, that the Advocate concerned, had moved an adjournment application in the office of the District Forum, but its (office) Registry, failed to attach the same with the consumer complaint file. It may be stated here, that the bald assertion of the Counsel for the appellant, in this regard, does not appear to be correct.  Had the Counsel concerned moved the alleged adjournment application, before the office of the District Forum, copy thereof alongwith acknowledgment/receipt thereof, would have definitely been placed, on record, but he failed to so. Thus, in our considered opinion, since the Counsel for the complainant/appellant, did not take the requisite measures, referred to above, negligence was attributable to him.  It is settled principle of law, that for the negligence or inadvertence of the Counsel, the party should not suffer. In our considered opinion, an opportunity should be afforded to the complainant, to prosecute the complaint, so that the same could be decided, on merits, and the rights of the Parties are finally determined by one Forum, one way or the other. In this view of the matter, the order impugned is liable to be set aside.
13.        On account of the negligence of the complainant or its Counsel, delay in the disposal of complaint, on merits, shall be caused.  According to Section 13 (3A) of the Act, endeavour should be made to decide the complaint, within three months, from the date of service of the Opposite Party(s), except the one, in which the goods are required to be sent to the Laboratory for examination. In that event, endeavour shall be made to decide the complaint, within a period of 5 months, from the date of service of the Opposite Party(s). The complaint had been filed on 31.03.2014. Since the complaint is being remanded back to the District Forum, delay will certainly be caused, in the disposal of same (complaint), on merits. Thus, the appellant/complainant is required to be burdened with costs.
14.        For the reasons recorded above, the appeal is accepted.  The order impugned is set aside. The complaint is remanded back to the District Forum, with a direction to restore the same, to its original number, proceed further,  from the stage, at which, it was dismissed in default of appearance of the complainant, and decide the same, afresh, on merits, in accordance with the provisions of the Act.  However, the appellant/complainant is burdened with costs of Rs.5,000/- for causing delay, in the disposal of complaint, afresh, on merits. The payment of costs, in equal shares i.e. Rs.2500/- each, to  respondents No.1 and 2/Opposite Parties No.1 and 2, shall be a condition precedent. 
15.        The Parties are directed to appear before District Forum (II) on  09.03.2015, at 10.30 A.M., for further proceedings. 
16.        The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date and time fixed i.e. 09.03.2015, at 10.30 A.M.
17.        Certified copies of this order, be sent to the parties, free of charge.
18.         The file be consigned to the Record Room, after due completion.

Pronounced.

­­­­­March 2, 2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

 

Rg