ORDER

(Per: D.K. Tyagi, Member):

            These two appeals have been filed under Section 15 of the Consumer Protection Act, 1986 against the order dated 29.01.2008 passed by the District Forum, Haridwar in consumer complaint No. 39 of 2007.  By the impugned order, the District Forum has allowed the consumer complaint against the opposite parties and directed the opposite parties to replace the Photostat Machine with a new one of same make and model with fresh warranty to the complainant, if the same is not possible, then the opposite parties shall pay Rs. 1,77,341/- cost of the said machine and also to pay Rs. 2,000/- towards cost of litigation to the complainant, within one month from the date of the order.

2.       Briefly stated the facts of the case as mentioned in the consumer complaint are that the complainant was in need of a Photostat machine for his office, for which the complainant ordered for a supply of a Photostat machine modal No. NP6130/3300 Canon Copier Machine vide letter dated 29.11.2004 written to opposite party No. 2 on the basis of cost fixed by Indian National Consumer Cooperative Society.  The opposite party No. 2, who is a dealer of the opposite party No. 1 installed the said Photostat machine at the office of the complainant on 30.11.2004 alongwith bill dated 27.11.2004.  The complainant paid a sum of Rs. 1,77,341/-, the total cost of Photostat machine by cheque No. 657748 dated 02.12.2004 to the opposite party No. 2.  The complainant is the consumer of the opposite parties and the complainant has right to file the consumer complaint before the District Forum.  After payment of the cost of the machine, the said Photostat machine remained out of order continuously.  The complainant had informed the opposite party No. 2 only after one week of installation of the said machine that work of this machine is not satisfactory, for which the opposite party No. 2 assured the complainant that the said Photostat machine will be installed properly and then it will work satisfactorily.  The opposite party No. 2 charged, service charges from the complainant by saying that the Photostat machine requires service.  From the day, when the Photostat machine was installed, the machine never worked properly.  The opposite party No. 2 carried away the said Photostat machine to its Dehradun office, even then the machine is not working properly and satisfactorily.  The complainant complained to the opposite party No. 1 regarding the Photostat machine, but the opposite party      No. 1 did not take any action for change of this defective Photostat machine.  It was the duty of the opposite parties to provide a good Photostat machine to the complainant, but they neither repaired the said machine nor changed the said machine.  Due to this defective machine, the complainant take services from the other machine and suffered loss.  For the last time, the complainant intimated the opposite parties to change the said Photostat machine and afterwards apprised the opposite parties to repair the machine and their assurances, but neither the Photostat machine was repaired nor changed.

3.       The District Forum, Haridwar issued notice to the opposite parties.  The opposite party No. 1-M/s Canon India Ltd., Delhi neither appeared before the District Forum nor filed any written statement, therefore, on 20.06.2007 the District Forum passed an order to proceed the case ex-parte against the opposite party No. 1.  The opposite party No. 2-M/s Excel Enterprises, Dehradun appeared before the District Forum and has filed its written statement.  In the written statement (paper Nos. 17 & 18 on the District Forum’s record), the opposite party No. 2 has pleaded that para Nos. 1, 2, 3 and 4 of the consumer complaint are admitted.  In para No. 5 of the consumer complaint, the opposite party No. 2 has pleaded that at the time of installation of the Photostat machine the opposite party No. 2 has apprised the complainant that there is defect in electricity line in the office of District Probation Office and in case if any defect occurs due to this defective electricity line, then the opposite party No. 2 shall not be responsible.  The complainant has not produced any service bill during warranty period of machine. Para No. 7 of the consumer complaint is admitted, but the Photostat machine’s defects were rectified in Dehradun lab and handed over to the complainant, which became defective again due to defective electricity line in the office of the complainant.  It is not admitted that the Photostat machine was not used by the complainant. In case, the Photostat machine was not used by the complainant, then why 150000 copies were printed according to the meter readings.  Therefore, the consumer complaint is liable to be dismissed.

4.       The District Forum provided several occasions to file evidence by the opposite party No. 2-M/s Excel Enterprises, even then the opposite party No. 2 did not file any evidence in the form of affidavit, therefore, on 19.12.2007 the District Forum has passed an order that the opportunity to file evidence is closed and fixed 17.01.2008 for ex-parte arguments.  On 17.01.2008, the learned District Government Counsel Sh. Sanjeev Kaushal, Advocate appeared, who argued before the District Forum and 29.01.2008 was fixed for judgment. Later on, on 19.12.2007, the District Forum proceeded the consumer complaint ex-parte against both the opposite parties and decided the same vide order dated 29.01.2008 in the above terms.  Aggrieved by the said order, the appellants-opposite parties have filed these appeals. 

5.       We have heard learned counsel for the parties and have also perused the record.  It appears from the impugned judgment and order dated 29.01.2008 that before the District Forum the consumer complaint was proceeded ex-parte against the appellant-M/s Canon India Ltd. as well as against the appellant-M/s Excel Enterprises.  The appellant-M/s Canon India Ltd. did not file any written statement before the District Forum against the consumer complaint filed by the complainant, whereas the appellant-M/s Excel Enterprises did not file any evidence before the District Forum against the consumer complaint filed by the complainant.  It is a settled principle of law that all the parties involved in the matter in question should get proper opportunity of being heard.

6.       We have noticed that the appellant-M/s Excel Enterprises, of First Appeal No. 48 of 2008, filed its written statement, but did not file any evidence on affidavit before the District Forum and the appellant-M/s Canon India Ltd., of First Appeal No. 83 of 2008, could not file written statement as well as evidence on affidavit before the District Forum and the District Forum did not give opportunity to the appellant-M/s Canon India Ltd. for adducing the evidence on affidavit and also appellant-M/s Excel Enterprises could not file evidence on affidavit and even then the District Forum disposed of the consumer complaint merely on the basis of the pleadings of the complainant only, which is contrary to the principle of natural justice.

7.       The Hon’ble Apex Court in the case of Topline Shoes Ltd. Vs. Corporation Bank; II (2002) CPJ 7 (SC), has observed that “it is for the Forum or the Commission to consider all facts and circumstances along with the provisions of the Act providing time frame to file reply, as a guideline, and then to exercise its discretion as best it may serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind the principle of natural justice as well.”

8        In view of the Hon’ble Apex Court’s decision, we are unable to sustain the order passed by the District Forum and set aside the same.

9.       The Hon’ble National Commission in the case of Mathura Mahto Mistry Vs. Bindeshwar Jha (Dr.) and another; I (2008) CPJ 109 (NC), has held that disposing of the complaint simply on pleadings without directing the parties to file evidence by way of affidavits is illegal on the face of it.  The Hon’ble National Commission in the aforesaid judgment has also held that “moreover without adducing evidence, both the parties obviously did not get an opportunity to prove their respective case, in view of which, we are unable to sustain the order passed by the District Forum, which is set aside and the case is remanded back to the Forum below to give an opportunity to both the parties to lead evidence by way of affidavits and also permit cross-examination through questionnaire and reply and only after completion of all the necessary procedure as per law, the District Forum shall hear the case on merit and dispose it of preferably within a period of three months from the date of receipt of this order.”

10.     Thus, we feel it just and proper to remand the case to the District Forum for decision afresh in accordance with law.  The opposite party No. 2-appellant-M/s Excel Enterprises shall file its evidence before the District Forum on or before 13.11.2015 and opposite party No. 1-appellant-M/s Canon India Ltd. shall file its written statement before the District Forum on or before 13.11.2015 positively and thereafter the District Forum shall afford a reasonable opportunity to the parties to adduce evidence in support of their case.  The District Forum shall take all sort of endeavour to decide the consumer complaint as early as possible and preferably within a period of three months from the date of filing the written statement as well as evidence on affidavit by the appellants.

11.     With the aforesaid observations, the appeals are allowed. Impugned judgment and order dated 29.01.2008 passed by the District Forum, Haridwar is set aside and the case is remanded back to the District Forum for decision afresh in accordance with law.  The opposite party No. 1-appellant-M/s Canon India Ltd. is directed to file its written statement before the District Forum on or before 13.11.2015 positively and the opposite party No. 2-appellant-M/s Excel Enterprises is directed to file its evidence on affidavit before the District Forum on or before 13.11.2015 and thereafter the District Forum shall grant reasonable opportunity to the parties to adduce evidence in support of their case. The District Forum is further directed to decide the consumer complaint expeditiously and preferably within a period of three months from the date of filing the written statement by the opposite party No. 1-appellant-M/s Canon India Ltd.  It is made clear that the District Forum shall not grant unnecessary adjournment to the parties.  Copy of the order be sent to the District Forum, Haridwar immediately.  No order as to costs.

12.     Let the copy of the order be kept on the record of First Appeal No. 83 of 2008.