Chandigarh

StateCommission

RP/12/2015

Idea Cellular Limited - Complainant(s)

Versus

Bikramjit Singh - Opp.Party(s)

Vishal Gupta, Nitika Jindal & Amit Gupta

18 May 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Revision Petition No.	:	12 of 2015
Date of Institution	:	15.05.2015
Date of Decision	:	18.05.2015

 

Idea Cellular Limited through its Authorized Signatory, Zonal Office at SCO No.495-496, Second Floor, Sector 35-C, Chandigarh and Punjab Circle Office at C-105, Industrial Area, Phase-7, Mohali.

…… Revision-Petitioner/Opposite Party

 

V e r s u s

 

Bikramjit Singh son of S.Ajit Singh, resident of House No.1207, Sector 21-B, Chandigarh.

....Respondent/complainant

 

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

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

               

Argued by: Ms.Nitika Jindal, Advocate for the Revision-Petitioner.

Sh.Vikram Preet Arora, Advocate for the respondent.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            This Revision petition is directed against the order dated 26.02.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, the Opposite Party (now Revision-Petitioner), was proceeded against exparte.

2.       The facts of the consumer complaint bearing No.774 of 2014, are that, the complainant purchased prepaid SIM No.8991149300034197598, bearing mobile No.+919781517457, from the Opposite Party. It was stated that the complainant had been using the said prepaid SIM card on the said mobile no., for the last five years. It was further stated that the complainant had given his mobile no. to his employer, friends, colleagues, and relatives. It was further stated that from October 2014, the complainant started receiving calls from unknown illiterate persons, with whom he had no concern. Not only this, when the employer, friends, colleagues and relatives, tried to make call to the complainant, on his aforesaid mobile no., they in-turn used to hear abusive language from different persons. It was further stated that, later on, it came to the notice of the complainant that the opposite party had allotted the same mobile no., which was allotted to him, on different SIM cards, as a result whereof, he received a number of unwanted calls, from various persons, whom he did not even know. It was further stated that same was the case with the callers, who wanted to call the complainant, as they could not contact him, as somebody else, who had been allotted the same mobile number, picked up the same (call). It was further stated that the complainant requested the Opposite Party, a number of times, to resolve his problem, but to no avail. It was further stated that the complainant approached the Opposite Party, through every possible means, for redressal of his grievance, but to no avail. It was further stated that the aforesaid acts of Opposite Party, 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. 
3.        The Opposite Party was deemed to have been served for 26.02.2015, but no authorized representative, on its behalf,  put in appearance, as a result whereof, it was proceeded against exparte. Later on, an application for setting aside the exparte proceedings order dated 26.02.2015, was filed by the Opposite Party, which was dismissed on 30.03.2015, by the District Forum, holding that it (District Forum), was not vested with the power to review/recall its own order.
4.       Feeling aggrieved, the instant Revision-Petition, was filed by the Revision-Petitioner/Opposite Party, against the order dated 26.02.2015.
5.         We have heard the Counsel for the parties, and have gone through the record of the case, carefully.
6.       Ms.Nitika Jindal, Counsel for the Revision-Petitioner/Opposite Party, who was also Counsel, in the main complaint, submitted that, no doubt, none put in appearance, on behalf of the Opposite Party, on 26.02.2015, when the case was called for,  as a result whereof, it (Opposite Party) was proceeded against exparte, on the ground of deemed service. She further submitted that she (Ms.Nitika Jindal, Advocate) could not put in appearance, in the District Forum, on 26.02.2015, on account of the reason that she had to appear, in the cases, listed before the Hon'ble Punjab and Haryana High Court, which took some time. She further submitted that when she (Counsel), reached the District Forum, after attending the cases, aforesaid, it transpired that the Opposite Party had been proceeded against exparte, by it (District Forum), on the ground of deemed service. She further submitted that, later on, an application for setting aside the exparte order dated 26.02.2015, was filed by the Opposite Party, which was dismissed on 30.03.2015, holding that it (District Forum), was not vested with the power to review/recall its own order. She further submitted that her absence, on behalf of the Opposite Party, on the date fixed, in the District Forum, was neither intentional, nor deliberate, but for the reasons, aforesaid. She further submitted that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to the Revision-Petitioner/ Opposite Party, as, in that event, it would be condemned unheard. She further submitted that, thus, the order of the District Forum, in proceeding exparte against the Opposite Party, being illegal, is liable to be set aside
7.       On the other hand, the Counsel for the respondent/complainant, submitted that the absence of the Revision-Petitioner/Opposite Party, on 26.02.2015, in the District Forum, despite deemed service, no doubt, was intentional and deliberate, yet in the interest of justice, he has no objection, if the exparte order is set aside, subject to imposition of costs upon it (Revision-Petitioner/Opposite Party).
8.       Perusal   of the record   of   the District Forum reveals that the complaint was admitted, vide order dated 28.11.2014 and   notice   was ordered   to   be   issued to the Opposite Party, for 13.01.2015, by it (District Forum). On 13.01.2015, since the notice sent for service of the Opposite Party, through ordinary post was not received  back served or unserved, as such, it (Opposite Party) was ordered to be served through registered post, for 26.02.2015. Ultimately, the notice sent for the service of the Opposite Party, through Registered A.D. Cover, for 26.02.2015, was not received back, with any report. The District Forum, presumed that the Opposite Party was duly served, but it did not put in appearance, as a result whereof, it was proceeded against exparte.
9.       However, later on, an application was moved by the Opposite Party, before the District Forum, for setting aside the order dated 26.02.2015, vide which, it was proceeded against exparte, which was dismissed by it (District Forum), vide order dated 30.03.2015, holding that it (District Forum), was not vested with the power to review/recall its own order
10.       It is settled principle of law, that every lis should normally be decided, on merits, than by resorting to hyper-technicalities. When 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. In State of Punjab and another vs. Shamlal Murari & Anr., AIR 1976 SC 1177, the principle of law, laid down, was to the effect, that procedure, is, in the ultimate handmaid of justice, and not its mistress and is meant to advance its cause, and not to obstruct the same. The procedural Rule, therefore, has to be liberally construed, and care must be taken, that so strict interpretation be not placed thereon, whereby, technicality may tend to triumph over justice. It has to be kept in mind, that an overly strict construction of procedural provisions, may result in the stifling of material evidence, of a party, even if, for adequate reasons, which may be beyond its control. We must always remember that procedural law, is not an obstruction, but an aid to justice. Procedural prescriptions are the hand-maid, and not the mistress, a lubricant, not a resistant, in the administration of justice. If the breach can be corrected, without injury to the just disposal of a case, regulatory requirement should not be enthroned into a dominant desideratum. The Courts and the quasi-Judicial Tribunals, have been set up, with the sole purpose of dispensing justice, and not to wreck the end result, on technicalities.
11.       No doubt, there was negligence, on the part of the Counsel for the Opposite Party, as it was required of her, to reach the District Forum, when the complaint was called. On the other hand, if on 26.02.2015, she was busy in the Punjab and Haryana High Court, in some cases, listed there, and was unable to come present, on the date fixed, in the alternative, she could have instructed her Junior Counsel, to put in appearance, or request the District Forum, to give a short date, for the purpose, but she failed to do so.  Since, the Counsel for the Opposite Party, did not take the requisite measures, referred to above, negligence was attributable to her. 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 Opposite Party, for filing vakalatnama, written version, and evidence, by way of affidavit(s), so that the complaint 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.
12.       For whatsoever the reason may be, by not appearing, in the District Forum, on the date fixed, despite deemed service, and not filing the vakalatnama, written version, alongwith evidence, by way of affidavit(s),  the  Revision-Petitioner/Opposite Party, certainly  caused delay, in the disposal of complaint, on merits. According to Section 13 (3A) of the Act, an endeavour should be made to decide every 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, an endeavour should be made to decide the complaint, within a period of 5 months, from the date of service of the Opposite Party(s). The complaint was filed, in the District Forum, on 26.11.2014. A period of three months has already lapsed, much earlier. Since, the case is being remanded back, certainly further delay shall be caused, in the disposal thereof. The Revision-Petitioner is, thus, required to be burdened with costs, for causing delay, in the disposal of complaint and to meet the ends of justice.
13.       For the reasons recorded above, the Revision- Petition is accepted. The order dated 26.02.2015, rendered by the District Forum, is set aside, subject to payment of costs of Rs.2,000/-, by the Opposite Party/ Revision-Petitioner, to the respondent/complainant. The District Forum shall grant only one reasonable opportunity to the Opposite Party, for filing vakalatnama, written reply, alongwith evidence, by way of affidavit(s), and, thereafter, decide the complaint, on merits, in accordance with the provisions of law. The payment of costs to the tune of Rs.2000/-, to the respondent/complainant, shall be a condition precedent.  In other words, the payment of costs, shall be made, before filing the vakalatnama, written reply, alongwith evidence, by way of affidavit(s). 
14.       The parties are directed to appear, before District Forum (I) on 28.05.2015 at 10.30 A.M., for further proceedings.
15.       The District Forum record, alongwith a certified copy of the order, be sent back, to it, immediately, so as to reach there, well before the date and time fixed i.e. 28.05.2015 at 10.30 A.M.
16.       Certified Copies of this order, be sent to the parties, free of charge.
17.       The Revision Petition file be consigned to the Record Room, after due completion.

Pronounced

18.05.2015

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

MEMBER

Rg