KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 322/2017

JUDGMENT DATED: 24.06.2019

(Against the Order in C.C. 44/2016 of CDRF, Pathanamthitta)

PRESENT : 

SRI.T.S.P. MOOSATH                                                : JUDICIAL MEMBER

SRI. RANJIT. R                                                 : MEMBER

SMT. BEENA KUMARY. A                             : MEMBER

APPELLANTS:

1. M/s DTDC Courier & Cargo Ltd., 3/326, 1^st Floor, Kurisumoottil Plaza, Thiruvalla represented by its Manager.
2. Shaji Salim, Manager/Proprietor, M/s DTDC Courier & Cargo Ltd., Pathanamthitta.

 (By Adv. Binu Mathew)

                                                Vs.

RESPONDENT:

Vijeesh Kumar, Modiyil, Mallisserril, Pramadom, Pathanamthitta.

JUDGMENT

SMT. BEENA KUMARY. A : MEMBER

The appellants are the opposite parties in C.C. No. 44/2016 on the file of Consumer Disputes Redressal Forum, Pathanamthitta.  Respondent is the complainant.  The appellants/opposite parties were ex-parte in the District Forum.

2. Brief facts of the complaint are as follows:  The complainant is working in a private firm at Chennai and is residing in Chennai.  On 06.02.2015, the mother-in-law of the complainant purchased a LED TV for Rs.32,500/- and gifted to the complainant.  The complainant approached the 1^st opposite party for sending the T.V to Chennai.  The T.V was entrusted to the 2^nd opposite party on 25.02.2015.  After one week, the consignment was delivered to the complainant at Chennai.  After accepting the delivery at 6.30 pm on 02.03.2015 it was alleged that the screen of the TV was broken when the consignment was opened in the night.  It is further alleged that the complainant contacted the opposite parties for rectifying the defect.  But there was no response from the opposite parties.  The above said acts of the opposite parties are clear deficiency in service which caused financial loss and mental agony to the complainant.  Hence complainant filed the complaint before the Forum for getting the price of the T.V along with compensation and costs.

3.  The appellants/opposite parties were ex-parte.  On the basis of the pleadings and other evidence the lower forum allowed the complaint and directed the opposite parties to rectify the damage along with compensation of Rs. 5,000/- to the complainant within 15 days from the date of receipt of the order, failing which the complainant is allowed to realize the cost of the TV set Rs. 43,000/- along with costs and compensation.  Aggrieved by this order opposite parties/appellants filed this appeal.

4.  The appellants stated that the case was posted on 05.05.2016 for appearance of the opposite parties.  The 1^st opposite party is the franchisee of DTDC at Thiruvalla and 2^nd opposite party is an office under the 1^st opposite party.  The notices issued to the opposite parties were mistakenly sent to the corporate office for instruction instead of the Regional Office at Cochin under which the Franchisee Branch is situated.  Hence the company as the principal of the opposite parties-franchisee could not appear on 05.05.2016 on which day they were called absent and set ex-parte.  Hence opposite parties filed petition I.A No. 72/2016 dated 15.06.2016 to set aside the order declaring the opposite parties ex-parte.  But the forum dismissed the I.A and the final order was passed on 30.06.2016.  The Forum below did not accept the version, which was filed along with the petition and did not allow the opposite parties to contest the case on merits.  The forum did not go into the merits of the I.A stating that the Forum has no right to set aside the ex-parte order passed. 

5.  The appellants argued that they have serious contentions in their version that would prove the allegations raised by the complainant are absolutely incorrect and false.  There is grave violation of natural justice and any order passed without hearing the opposite parties would lead to grave injustice miscarriage of justice.  Therefore they prayed for setting aside the impugned order and remand the case for fresh disposal on merits. 

6.  We heard the arguments of both sides and perused the entire records.  We are not impressed with the reason stated by the appellants for their non-appearance.  But for the interest of justice it is reasonable to give opportunity to the appellants to contest and case and decide the case on merits.  Therefore we have not gone through the merits of the case. 

7.  Remission of the case setting aside the order of the District Forum can be ordered only on terms directing the appellant to compensate the injury likely to be caused by the delay in culmination of the proceedings to the complainant.  Appellants have to pay Rs. 10,000/- as costs to the respondent/complainant as a condition precedent for setting aside the order and remission of the case. 

8.  Complainant/respondent is permitted to get release of the amount of Rs. 10,000/- ordered as costs from the amount deposited by the appellants at the time of institution of the appeal before this Commission, on proper application.  Refund the balance amount to the appellants, on proper application.

In the result, the appeal is allowed.  The order passed by the District Forum in C.C. No. 44/2016 is set aside and the matter is remanded for fresh disposal, after giving opportunity to the appellants to file version and to adduce evidence, if any.  The District Forum shall dispose of the complaint as expeditiously as possible.

 Send back the records to the District Forum, forthwith.

T.S.P. MOOSATH    : JUDICIAL MEMBER

RANJIT. R                : MEMBER

                                                                        BEENA KUMARY. A         : MEMBER

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