(Passed on 24.06.2016)
Per Mr B A Shaikh, Hon’ble Presiding Member
1. This appeal is filed by the original complainant against the order dtd.06.08.2013, passed by District Consumer Forum, Yavatmal in consumer complaint No.33/2012, by which, the complaint has been dismissed with a direction to the complainant to deposit Rs.2,000/- with the consumer Legal Aid Account towards the exemplary cost.
2. The facts in brief giving rise to the present appeal are as under.
The original complainant, who is the appellant herein purchased a two wheeler called as scooter from the opposite party (for short O.P.) No.2 – dealer of Yavatmal as manufactured by O.P.No.1 company for consideration of Rs.55,553/- on 26.03.2011. The complainant alleged that after he took possession of the said vehicle, he found various defects in the vehicle, as specified in the complaint, from time to time within a short period of purchasing it. Hence, he had taken the same for removing those defects from the vehicle to O.P. No.2 from time to time, but they were not removed. Even O.P. No.3, the Sales Manager of O.P.No.2 misbehaved with the complainant. Thus alleging manufacturing defect in the vehicle, the complainant served notices to O.P.Nos.1, 2 & 3 and on getting no positive response, he filed consumer complaint before the Forum, requesting direction to O.P. Nos.1 & 2 to replace the scooter by new scooter and to pay him compensation of Rs.50,000/- for physical & mental harassment and further compensation of Rs.10,000/- for expenses incurred by him. He also claimed interest over the said amount @ 15% p.a.
3. The O.P.Nos.1 & 2 filed their common reply before the Forum and denied the adverse allegations made against them by the complainant. They submitted that the complainant never made any complaint to them and filed a false complaint before the Forum and hence, the complaint may be dismissed.
4. The Forum, after hearing both parties and considering evidence brought on record, passed the impugned order and thereby dismissed the complaint as specified above.
The Forum while dismissing the complaint observed in the impugned order that there is no evidence to show that the complainant had taken the vehicle for repairing to the O.P. on the dates given by him i.e. 11.08.2011, 14.08.2011, 16.08.2011, 17.08.2011, 02.09.2011, 07.09.2011 and 30.10.2011 and therefore his case about the same cannot be accepted.
The Forum also observed that the till 06.11.2011 when the son of the complainant had brought the vehicle to O.P. for repair it run 52 Kms and on that day it was found that the vehicle has consumption average as 54 Kmpl. The Forum also observed that the complaint did get registered vehicle with RTO and he was running the vehicle without registration number. Thus, according to the Forum the complaint filed is malicious and hence, it cannot be allowed. Therefore, the Forum dismissed the complaint with exemplary cost of Rs.2,000/- to be deposited with consumer Legal Aid Account by him.
5. As observed above, the complainant has filed this appeal against that order. The learned advocate of both parties filed their respective Written Notes of Arguments in appeal. We have considered the same and perused the material placed before us in appeal by the appellant.
6. The main submission made by the appellant’s advocate is that though the impugned order is signed by the President Mr M B Pawar and two Members Dr. Ashok Somwanshi and Smt Ashlesha Dighade of the Forum and though the order has been dictated by Member Smt Ashlesha Dighade, the information obtained by the appellant from the District Consumer Forum, Yavatmal vide letter dtd. 17.09.2013 shows that the Member Smt Ashlesha Deghade has joined the District Consumer Forum, Yavatmal on 10.07.2013, whereas the President Mr M B Pawar and Member Dr Ashok Somwanshi had joined the said Forum on 11.02.2013 and 12.02.2013 respectively. Moreover, he has also drawn our attention to the Roznama / Order-sheet of the complaint in support of his submission that when the complaint was finally heard on 09.07.2013, Smt Ashlesha Dighade was not present and on that date President Mr M B Pawar and Member Dr Somwanshi only were present on Dais and they had finally heard the complaint and posted the complaint for judgement and then impugned order was passed on 06.08.2013. He, therefore, submitted that as Smt Ashlesha Dighade joined the Forum on 10.07.2013 after the complaint was finally heard by Mr M B Pawar and Dr Somwanshi, she had no authority to pass the impugned order and to sign it without hearing party. He, therefore, requested that on this sole ground impugned order may be set aside.
7. The learned advocate of the appellant also argued that the respondent No.2 / O.P.No.2 submitted ‘E Form’ to RTO, Yavatmal on 30.10.2013 and thereafter said RTO issued RC Smart Card to the complainant / appellant on 19.12.2013. Therefore, on this ground also the impugned order cannot be sustained under the law.
8. On the other hand, the learned advocate of the respondents / O.P. Nos.1, 2 & 3 in their Written Notes of Arguments filed on record supported the impugned order and submitted that the appeal may be dismissed.
9. The document placed before us by the appellant shows that Smt Ashlesha Dighade, the learned Member of the Forum had joined the services with District Consumer Forum, Yavatmal as a Member on 10.07.2013. However, as per the Roznama – Order-sheet the complaint was finally heard by the President Mr M B Pawar and Member Dr A Somwanshi on 09.07.2013 and then the complaint was reserved for final order till 30.07.2013. However, on 30.07.2013 the final order cannot be passed and hence, the complaint was reserved for order till 06.08.2013. On 06.08.2013 the impugned order was passed by the Forum and the judgement was passed by Smt Ashlesha Dighade, However, Roznama dated 06.09.2013 shows that on that date only Smt Dighade and Dr. Somwanshi had signed the Roznama about passing of the order.
10. In our view, when Smt Ashlesha Dighade did not hear the parties finally on 09.07.2013, and as she joined the Forum as a Member on 10.07.2013, she ought not to have dictated the impugned order and she ought not to have signed the impugned order.
11. We find that such order, which is passed by the said learned Member without actually hearing parties, cannot be sustained under law and hence on this sole ground the impugned order deserves to be set aside and the complaint deserves to be remanded for fresh hearing and disposal according to law.
12. We, thus, proceed to pass the following order.
ORDER
i. The appeal is allowed.
ii. Impugned order is set aside.
iii. The complaint is remanded to District Consumer Forum, Yavatmal for fresh hearing and disposal according to law.
iv. No order as to costs in this appeal.
v. Both parties shall appear before the Forum on 05th August 2016.
vi. Copy of the order be furnished to both parties free of cost.
vii. Moreover, one copy of the order be also sent to District Consumer Forum, Yavatmal for information.
