STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 222 of 2012 |
Date of Institution | : | 27.06.2012 |
Date of Decision | : | 03.12.2012 |
IFB Industries Limited Kolkata 7000088, Service Helpline 0172-3064725, 18604255678 (address as mentioned in the complaint) and having its one of the office at Plot No.640 A, Phase IX, Mohali and at Plot No.IND-5, Sector 1, East Calcutta Township Kolkatta-700078.
IInd Address:-
IFB Service Centre, SCO No.303, FF, Sector 38D, Ch. Ph No.39004321.
……Appellant/Opposite Party No.2.
V e r s u s
1. Gurdev Kaur (wife), Gurpreet Singh Lehal (son), Pushpinder Paul Singh (son), Rupinder Kaur Sandhu (daughter) legal representatives of Harcharan Singh (deceased)/complainant, rs/o Kothi No.88, Phase VI, S.A.S. Nagar (Mohali) Punjab. (Respondents)
2. Arvindra Electronics Private Limited, SCO No.1112, Sector 22 B, Ch, through its Proprietor/Director (respondent no.2/Opposite Party No.1)
....Respondents
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. P. K. Kukreja, Advocate of the appellant.
Sh. Gaurav Bhardwaj, Advocate for the legal representatives of late Sh. Harcharan Singh (deceased)-respondents.
Respondent No.2 exparte.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT
This appeal is directed against the order dated 31.05.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, filed by the complainant (now respondent no.1) and directed the Opposite Parties, jointly and severally, as under:-
“As a result of the above discussion, we allow this complaint and direct the OPs to jointly & severally replace the Dish Washer of the complainant with new one of same model & configuration or to refund its price i.e. Rs.25,200/-. The OPs are also directed to jointly & severally pay compensation of Rs.10,000/- along with litigation cost of Rs.5000/-.
This order be complied with by the OPs jointly & severally within a period of 30 days, failing which they shall be liable to pay the above awarded amount along with @12% p.a. from the date of filing this complaint i.e. 18.04.2012 till its actual payment, besides paying litigation costs”.
2. The facts, in brief, are that, Harcharan Singh complainant (now deceased), and represented by his legal representatives, purchased one IFB Neptune Dish Washer, from Opposite Party No.1 (now respondent no.2), in the sum of Rs.25,000/-, vide retail invoice Annexure C-1, having a warranty valid upto 04.01.2013, as per Annexure C-2. The said dish washer, became defective, in the year 2010, which fact was brought to the notice of the Opposite Parties, on telephone, besides lodging complaint nos.8467178 and 8646431, on 15.03.2012 and 13.04.2012, respectively. Nobody came forward from the Opposite Parties, to repair the said dish washer, and, as such, the same remained non-functional. It was stated that the aforesaid act 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, directing the Opposite Parties, to replace the defective dish washer, with a new brand dish washer; and to pay compensation, in the sum of Rs.50,000/-, for mental agony, physical harassment and monetary loss.
3. Notice of the complaint was issued to the Opposite Parties. According to the District Forum, the Opposite Parties, though, were duly served, but did not put in appearance, and, as such, they were proceeded against exparte.
4. The complainant led evidence, in support of his case.
5. After hearing the complainant, in person, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.2.
7. Despite service, none put in appearance, on behalf of respondent no.2/Opposite Party No.1, accordingly, it was proceeded against exparte vide order dated 27.08.2012
8. We have heard the Counsel for the appellant, and the respondents, and have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellant, submitted that the address of Opposite Party No.2, given in the title of the complaint, was incomplete, and, as such, it was never served. He further submitted that the District Forum was, thus, wrong, in coming to the conclusion, that since a period of 30 days, from the date of issuance of notice through Registered A.D. Cover, for the service of Opposite Party No.2/appellant, had lapsed, but the same had not been received back, with any report, and no legally authorized representative appeared, on its behalf, as such, it was deemed to be served. He further submitted that Opposite Party No.2/appellant, would have been deemed to be duly served, had the Registered A.D. Cover, for its service, been sent at the correct address, but had not been received back, by it (District Forum), after the expiry of a period of 30 days from the date of issue. He further submitted that even the notice sent to IFB Service Centre, SCO No.303, F.F., Sector 38 D, Chandigarh, the second address of Opposite Party No.2 was not served upon it, because, as per the report of the Process Server, the premises were found as “Locked”, when he went for its service. He further submitted that, under these circumstances, Opposite Party No.2/appellant, was condemned unheard. He further submitted that the order of the District Forum, being illegal and invalid, is, thus, liable to be set aside, and the case deserves to be remanded back, for fresh decision, in accordance with law.
10. On the other hand, the Counsel for the legal representatives of late Sh. Harcharan Singh, complainant (now deceased), submitted that, whatever address of Opposite Party No.2, was available with the complainant, at the time he was alive, was furnished by him and the notice through Registered A.D. Cover, was sent to it. He further submitted that when the said Registered A.D. Cover, was not received back, after the expiry of 30 days of the issuance of the same, the District Forum was right, in drawing the presumption, that Opposite Party No.2/appellant, was duly served. He further submitted that IFB Service Centre, SCO No.303, F.F., Sector 38-D, Chandigarh, Ph. No. 39004321, was not served and report was received that the premises were found “Locked”. He further submitted that since Opposite Party No.2/appellant, was deemed to have been duly served, but no legally authorized representative, put in appearance, on its behalf, the District Forum was right in, proceeding exparte against it, and deciding the complaint, on the basis of the evidence, led by the complainant.
11. In the complaint, the address of Opposite Party No.2, was given as “IFB Industries Ltd., Kolkata 700-088, Service Helpline: 0172-3064725, 18604255678”. The second address, was given as “IFB Service Centre: SCO No.303, F.F., Sector 38-D, Chandigarh, (Ph No.39004321)”. By no stretch of imagination, the first address of Opposite Party No.2 could be said to be complete. It was an incomplete address. Since helpline numbers were given to the complainant, and mentioned against the address of Opposite Party No.2, in the complaint, he could get its complete address, by dialing these numbers. In the title of the appeal, the correct address of Opposite Party No.2, was given as “IFB Industries Limited Kolkata 7000088, Service Helpline 0172-3064725, 18604255678 (address as mentioned in the complaint) and having its one of the office at Plot No.640 A, Phase IX, Mohali and at Plot No. IND-5, Sector 1, East Calcutta Township Kolkatta-700078”, and the second address was given as “IFB Service Centre, SCO No.303, FF, Sector 38D, Ch Ph No.39004321”. Since, the Registered A.D. Cover was sent at the incomplete address of Opposite Party No.2/appellant, of Calcutta, as mentioned, in the title of the complaint, for its service, no legal presumption could be drawn, by the District Forum, regarding its deemed service, under the proviso appended to Section 28A(3) of the Act, on the ground, that the Registered A.D., Cover, sent for its service, had not been received back, though a period of 30 days, from the date of issuance of the same had lapsed. Such a presumption could be drawn under the aforesaid provision, by the District Forum, only if the Registered A.D. Cover, had been sent at the correct and complete address of Opposite Party No.2/appellant. The District Forum was, thus, wrong, in drawing presumption under the aforesaid provision of the Act, regarding deemed service of Opposite Party No.2/appellant, at Kolkatta. The District Forum was, therefore, wrong in proceeding exparte against Opposite Party No.2/appellant.
12. Not only this, the premises of the second address of Opposite Party No.2/appellant, at Chandigarh, which was given by the complainant, in the complaint, were found to be locked, as per the report of the Process Server. It means, that Opposite Party No.2/appellant, was not even served, at the second address also. Under these circumstances, the District Forum was also wrong, in proceeding exparte, against Opposite Party No.2, in respect of its second address given, in the title of the complaint. Thus, it could be said that the Opposite Parties, were condemned unheard. It is, therefore, a fit case, in which the order of the District Forum, should be set aside, and the complaint should be remanded back, to the District Forum, for fresh decision, in accordance with the provisions of law.
13. For the reasons recorded above, the appeal is accepted, with no order as to costs. The order impugned, is set aside. The complaint is remanded back to the District Forum, with a direction, to afford an opportunity to Opposite Party No.2, to file its reply and evidence, by way of detailed legally admissible affidavit(s) and, if it leads the same, then give an opportunity to the legal heirs of the complainant- Harcharan Singh (now deceased), to rebut the same, if they so desire, and, thereafter, decide the complaint, afresh, on merits, within 1 ½ months from 10.12.2012, in accordance with the provisions of law.
14. The parties are directed to appear before the District Forum, on 10.12.2012 at 10.30.a.m.
15. The District Forum record, be sent back immediately, alongwith a certified copy of this order, so as to reach there, well before the date fixed.
16. Certified Copies of this order, be sent to the parties, free of charge.
17. The appeal file be consigned to Record Room, after completion.
Pronounced.
03.12.2012
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[NEENA SANDHU]
MEMBER
Rg
