Delhi

StateCommission

A/10/36

GOODYEAR INDIA LTD. - Complainant(s)

Versus

VIKAS - Opp.Party(s)

26 May 2017

ORDER

IN THE STATE COMMISSION : DELHI

 

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

                                                            Date of Decision : 26.5.2017   

 

First Appeal No. 36/2010

 

(Arising out of the order dated 10.11.09 passed in Complaint Case No.1416/09 passed by the District Consumer Dispute Redressal Forum – VI (New Delhi District)

 

In the matter of

M/s. GOODYEAR INDIA LTD.

62, Rama Road,

Anu Logistics

Opp. Bisleri Factory,

New Delhi-110015

……Appellant

 

Versus

Mr. Vikas

14, Green Avenue,

Vasant Kunj

New Delhi

…Respondent

 

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

1.     Whether reporters of local newspaper be allowed to see the      judgment?

2.     To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

1.          This is an appeal under Section 15 of the Consumer Protection Act (in short, ‘the Act’) wherein challenge is made to order dated 10.11.09 passed by the District Consumer Dispute Redressal Forum-VI,  (New Delhi District) (in short, the District Forum) in CC No. 1416/09 whereby the aforesaid complaint case has been allowed and the appellant/OP has been directed as under:-

      “ 1.     OP will replace all the five defective tyres of the vehicle                     no. HR 55 F 0335

        2.      On account of deficiency in service, mental agony and                     harassment OP will pay Rs.10,000/- as compensation to                      the complainant.

        3.     OP will pay Rs.5,000/- to the complainant as cost of                  litigation.       

                This order be complied within 30 days.”   

2.       Briefly the facts relevant for the disposal of the present appeal are as under:-

      The respondent herein i.e. complainant before the District Forum had filed a complaint under section 12 of the Act stating therein that he had purchased five tyres manufactured by appellant/OP. It was alleged that at the time of purchase respondent/complainant was assured by the Sales Manager of the appellant/OP that the tyres are consumer friendly and are having 5 years warranty. It was alleged that on the assurance of the said Manager of the appellant/OP, the respondent/complainant opted to use the tyres of the appellant/OP. It was alleged that within one and half years, respondent/complainant was shocked to see the ply dismantle in the tyres. The customer care executive of the appellant/OP advised the respondent/complainant to report at Capital Tyre, Green Park and was told that the service engineer would attend him there. Thereafter, the respondent/complainant visited the said centre but nobody was present there, the respondent/complainant reported at Gurgaon Centre where the inspection was done on 7.9.09 and after inspection it was told that the ply dismantle was due to manufacturing defect and two new tyres  were offered. The respondent/complainant requested to replace all the five tyres but the appellant/OP refused to replace all the tyres and the staff person of appellant/OP misbehaved with the respondent/complainant It was alleged that there was a gross deficiency in service and on the part of appellant/OP and that it had also indulged in unfair trade practices. On the basis of aforesaid allegations a complaint was filed before the District Forum wherein it was prayed to direct OP to replace all the five tyres. The respondent/complainant had made a prayer for award of Rs.10,000/- towards compensation and Rs.5,000/- as litigation expenses.

3.       The appellant/OP did not appear before the District Forum and was proceeded ex-parte.
4.       The respondent/complainant filed the ex-parte evidence by way of affidavit.
5.       Believing the affidavit of the respondent/complainant and relying on the ‘Spot Inspection Report’, the District Forum held that the ply dismantle in the tyre was due to manufacturing defect as such held that appellant/OP was deficient in service and was also indulged  in unfair trade practice and allowed the complaint directing the appellant/OP to replace all the tyres and pay compensation and litigation cost as has been stated above.
6.       Aggrieved with the aforesaid order present appeal is filed.
7.       Ld. Counsel for the appellant/OP has contended that no opportunity of hearing was given to appellant/OP before the District Forum. It is contended that the District Forum was closed for maintenance from 9.9.09 to 3.12.09 and was taking up urgent matters only upon mentioning in the chamber.  It is contended that the appellant/OP was served for 23.10.09 and on the said date the advocate for the appellant/OP, namely, Sh. Saurabh Sharma had sent his associate, Sh. Daiyan Hussain for appearance and for filing the reply. On 23.10.09 the matter was listed at item No. 30 and at the bottom of the second page of the said date cause list it was written ‘1 to 53’ adjourned to 3.12.09. On his return he had informed the Counsel that the Forum was closed for its maintenance and the next date in the matter was 3.12.09. Due to the said reason the reply was also not filed on 23.10.09. On 3.12.09 the matter was not found in the cause list and on enquiry the status of the case could not be known. Thereupon the file was inspected on 18.12.09, it was found that the matter was decided ex-parte on 10.11.09. Thereupon certified copy was applied and on getting the same the present appeal was filed. It is contended that due to the aforesaid reasons, the appellant/OP could not put his defense before the District Forum. It is contended that the impugned order is liable to be set aside as appellant/OP could not attend on 23.10.09 due to reason stated above. It is further contended that while passing the impugned order, the District Forum has relied upon photocopy of ‘Spot Inspection Report’  dated 7.9.09. It is contended that the said report was tampered by the respondent/complainant and as such it could not have been relied upon by the District Forum. It is contended that the original report dated 7.9.09 was also not produced  before the District Forum and only photocopy of the said report was produced in which the word ‘No’ written prior to ‘Manufacturing Defect’ was deleted. It is contended that the respondent/complainant had not approached the District Forum with clean hands as such the impugned order is liable to be set aside.
8.       No one has appeared on behalf of the respondent/complainant. The appeal is pending for the last many years.
9.       It may be mentioned that by the order of this Commission dated 21.5.10, the respondent/complainant was directed to specifically speak about the ‘Spot Inspection Report’ of appellant/OP company dated 7.9.09 that how word ‘No’ which is in the original report got deleted. The order  dated 21.5.10 is reproduced as under:-

      “3.      In his reply he will specifically speak about Spot                              Inspection Report  of the OP company dated 7.7.09 that                      how word ‘No’ which is in the original report got                              disappeared in the report filed by him before the District                      Consumer Forum on which the decree of the Trial Forum                     is passed.”

 

10.   After the aforesaid order, the respondent/complainant took opportunities for filing the reply. Even costs was imposed on him. However, no reply was filed by him. The matter was listed for number of dates but neither reply was filed nor costs was paid and rather respondent/complainant stopped appearing in the matter. Even notices were sent to the respondent/complainant. The respondent/complainant appeared on 24.4.16 thereafter again stopped appearing in the matter despite the fact that  matter was listed thereafter on 15.9.16, 17.10.16, 12.1.17 and 18.5.17 respectively. Thus there is no assistance from the side of respondent/complainant.
11. As regards contention of the appellant/OP that the opportunity of being hearing has not been given to it by the Ld. District Forum, the stand of the appellant/OP is that the District Forum was closed for maintenance from 9.9.09 to 3.12.09 and the appellant/OP was served for 23.10.09. On the said date Sh. Daiyan Hussain, associate of the advocate for the appellant/OP namely, Sh. Saurabh Sharma had appeared for filing the reply. However, in the cause list of said date, it was shown that matter had been adjourned to 3.12.09. due to said reason he came back. There is a detailed affidavit of the said Counsel which is reproduced as under:-

      “1.      That I am an associate of Mr. Saurabh Sharma,                             Advocate, Counsel for M/s Goodyear India Ltd.

 

      2.        That on 23.10.2009 on the instructions of Mr. Saurabh                    Sharma, Advocate I went to appear before District                           Consumer Disputes Redressal Forum-VI. K.G. Marg,                            New Delhi and reached there at 10.30 a.m. and found                     that the forum was closed for maintenance from                                 9.9.2009. On perusal of the cause list I found the                            matter entitled Vikas vs. Goodyear at page No. 2 of                             cause list listed at Item No. 30. I also read at the                     bottom of this page “1 to 53 unmarked adjourned to                              03.12.2009” There was no mention of the said matter                         being taken up in the chamber on mentioning. After                          noting, the date as 03.12.2009 in this matter I returned                       to High Court and conveyed the said date to Mr.                           Saurabh Sharma, Advocate.”

 

12. The aforesaid affidavit has gone unrebutted and unchallenged. Perusal of order sheets of the District Forum shows that the matter was listed on 23.10.09. On the said date due to non appearance appellant/OP was proceeded ex-parte and within three days thereafter ex-parte evidence and written arguments were taken on record. There was no urgency in the matter when it was adjourned to 26.10.09 for filing ex-parte evidence/written arguments on 23.10.09, its position ought to have been revealed in the cause list of 23.10.09 which was pasted outside the District Forum. On the other hand on the cause list, matter has been shown having adjourned to 3.12.09. Further the stand of appellant/OP is that only urgent matters were being taken on being mentioning in the chamber. In the present case there was no urgency. In these circumstances it is held that the appellant/OP is right in contending that the opportunity of hearing has not been given to him and there is violation of principles of justice.
13. Further reading of the impugned order shows that the District Forum has relied upon photocopy of ‘Spot Inspection Report’ dated 7.9.09 of appellant/OP in respect of the tyres in question wherein it is mentioned ‘manufacturing defect’. On the other hand, the Counsel for the appellant/OP has placed on record the certified true copy of the ‘Spot Inspection Report’ dated 7.9.09 certified by Sh. R.K. Gupta, Manager (Legal) of the appellant/OP wherein it is clearly mentioned ‘ No manufacturing defect’.  Even in the appeal one of the grounds raised is that the ‘Spot Inspection Report’ is tampered by the respondent/complainant. In support of appeal affidavit of Sh. Rajeev Sharma, Zonal Manager of the appellant/OP is filed. Further it is also difficult to believe that there was manufacturing defects in all the five tyres as has been held by the Ld. District Forum. We find that the respondent/complainant had not filed correct inspection report document before the Ld. District Forum and had filed an interpolated document.
14. It is settled proposition of law that a person approaching the Court for redressal of his grievance must place all the relevant facts before the Court clearly, candidly and frankly without any reservation even if those facts are against him. If the person approaching the Court does not disclose all the material facts fairly and truly or states them in a distorted manner or otherwise tries to mislead the court, the Court has inherent power to proceed further with the examination of the case on merits. The Court/Tribunal certainly has to take into consideration the conduct of the party which invokes its jurisdiction and if it finds that the litigant has tried to mislead or hoodwink, it must necessarily prevent him from abusing its process by refusing to hear him on merits of the case. Such a person, by his very conduct, disentitles himself from getting any relief from the Court even if it is otherwise made out on merits.
15.   In view of the above discussion, we allow this appeal and set aside the impugned order dated 10.11.09 and consequently dismiss the CC No.1416/09.
16.   A copy of this order as per the statutory requirements be forwarded to the parties free of charge. A copy be also sent to the Ld. District Forum-VI (District-New Delhi).

      File be consigned to record room.

 

(Justice Veena Birbal)​

President

 

(Salma Noor)

Member