Chandigarh

StateCommission

A/129/2015

Sh. Sudhir Kumar Batish - Complainant(s)

Versus

Idea Cellular Limited - Opp.Party(s)

Vishal Sharma & Harbans Lal Sharma, Adv.

08 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. Sh. Sudhir Kumar Batish son of Sh. S.P. Batish and
2. Ms.Shreya Batish daughter of Sh.S.K. Batish

Both residents of House No.130, Sector 16-A, Chandigarh.

……Appellants/Complainants

V e r s u s

1. Idea Cellular Limited, Registered Office Suman Tower, Plot No.18, Sector 11, Gandhinagar-382011, Gujarat, India Tel: +91796714000 Fax: +917923232251.
2. Idea Cellular Limited, Corporate Office Windsor, 5^th Floor, Off. CST Road, Near Vidya Nagari, Kalina, Santacruz (E), Mumbai-400098 Fax:+919594003181.
3. The Idea Cellular Limited, Idea Store, SCO No.495-96, IInd Floor, Sector 35, Chandigarh.

              ....Respondents/Opposite Parties

Appeal under Section 15 of the Consumer Protection Act, 1986.

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

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

Argued by:Sh.Harbans Lal Sharma, Advocate for the appellants.           Sh. Amit Gupta, Advocate for the respondents.

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            This appeal is directed against the order dated 12.05.2015, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the consumer complaint bearing No.61 of 2015, in default of appearance of the complainants (now appellants).

2.       The facts, in brief, are that the complainants had been using TATA Docomo mobile numbers. However, on the allurements made by the representative of the Opposite Parties, the complainants ported their mobile numbers to Idea Cellular, and retained their previous mobile numbers with Tata Docomo. The mobile numbers of the complainants were, thus, ported with each other. It was stated that despite the fact that the complainants never agreed to port with substituting mobile numbers, the Opposite Parties did so, as a result whereof, they (complainants) moved an application with them, in that regard. It was further stated that despite making request by the complainants, their grievance was not redressed by the Opposite Parties. It was further stated that, not only this, the services of complainant No.1 in respect of his mobile no., were discontinued by the Opposite Parties. It was further stated that complainant No.1 approached the Opposite Parties and requested to look into the matter, but he was told that the payment of previous service provider i.e. TATA Docomo was outstanding. It was further stated that, on the other hand, complainant No.1 had submitted the receipts of payment made by him, to the previous service provider i.e. TATA Docomo, but to no avail.
3.       It was further stated that, not only this, on the other hand, though complainant No.2 had not opted for internet facility, on her mobile number, yet the Opposite Parties raised a bill in respect of the same.  It was further stated that the complainants approached the Opposite Parties through every possible means to redress their grievance, aforesaid, but to no avail. It was further stated that left with no alternative, legal notice dated 26.11.2014 was also served upon the Opposite Parties, but to no avail.
4.       It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants 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, seeking various reliefs, against the Opposite Parties.
5.       The Opposite Parties, in their joint written version, pleaded that the consumer complaint was not maintainable. It was stated that, in fact, the complainants were at fault, as they failed to fill in the Customer Application Form (CAF), complete in all respects, in respect of the connections, in question. It was further stated that even the identity proofs attached by the complainants, alongwith the said CAF were not clear, and, as such, they were requested a number of times, to submit clear copy of the same, but they failed to do so. It was further stated that the complainants failed to clear outstanding dues, which were pending against them, to be paid in respect of the services availed of by them, from the previous operator i.e. DOCOMO Tata GSM.  It was further stated that the telecom service providers were mandated through guidelines/instructions issued by the Department of Telecommunications, Govt. of India. It was further stated that there was no such procedure, wherein credentials of the customers were shared by donor operator i.e. Tata Docomo. It was further stated that during the pendency of consumer complaint, in the District Forum, mobile No.9878029911 was ported out from TATA Docomo earlier of IDEA (originally subscribed to Airtel as Original Range Holder), which belonged to the complainants, had been rightfully disconnected/ barred due to nonpayment of bills by them (complainants).  It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6.       On 12.05.2015,  the complaint  was called many times, but none entered appearance, on behalf of the complainants, as a result whereof, the same was dismissed in default of their appearance.
7.       Feeling aggrieved, the instant appeal, was filed by the appellants/complainants, against the order dated 12.05.2015.
8.       We have heard the Counsel for the parties, and have gone through the record of the case, carefully.
9.        The Counsel for the appellants/complainants submitted that, no doubt, on 12.05.2015, none put in appearance, on  behalf of the appellants/complainants, as a result whereof, the consumer complaint was dismissed in default of their appearance. He further submitted that, on 12.05.2015, the Counsel concerned was present in the District Forum. However, since the Counsel for the respondents/Opposite Parties, did not come present, when the complaint was called by it, (District Forum) for the first time, he (Counsel concerned) was asked to wait for some time. It was further submitted that since the Counsel for the complainants had to appear before the Hon'ble High Court of Punjab and Haryana at Chandigarh, in a Civil Writ Petition titled as Chajju Ram Vs. State of Punjab and Ors. and also in one Criminal Miscellaneous Application, he deputed his friend Mr.Ajay Singla, Advocate, who was present in the District Forum, to put in his appearance, on his behalf before it (District Forum), and receive copy of the reply and evidence, if filed by the Opposite Parties. He further submitted that since Mr.Ajay Singla, Advocate, forgot to remain present in the District Forum, he could not collect copy of the reply filed by the Opposite Parties, from it (District Forum), on 12.05.2015. He further submitted that after finishing the cases, fixed before the Hon'ble High Court of Punjab and Haryana at Chandigarh, referred to above, when the Counsel for the complainants, appeared before the District Forum, it transpired that the consumer complaint had already been dismissed in default of appearance of the complainants. He further submitted that, on account of the reasons, aforesaid, neither the main Counsel nor Mr.Ajay Singla, Advocate, could appear in the District Forum, on 12.05.2015, at the time, when the complaint was called. He further submitted that, thus, the absence of the complainants, on 12.05.2015, was neither intentional, nor deliberate, but for the reasons, referred to above. He further submitted that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to the appellants/complainants, as in that event, they would be condemned unheard. He further submitted that, thus, the order of the District Forum, being illegal, is liable to be set aside.
10.        On the other hand, the Counsel for the respondents/Opposite Parties, submitted that since  the absence of the appellants/complainants, on 12.05.2015, in the District Forum, was intentional and deliberate, no ground was made out for setting aside the impugned order.
11.       After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the parties, and, on going through the record, we are of the considered opinion, that the appeal deserves  to be accepted, and the case is liable to be remanded back, for fresh decision, on merits, in accordance with law, for the reasons, to be recorded hereinafter.  It may be stated here, that perusal of the District Forum record, reveals that  vide order dated 09.02.2015, notice was ordered to be issued to the Opposite Parties, for 18.03.2015. On 18.03.2015, the Counsel for Opposite Parties, put in appearance, and filed her vakalatnama, on their behalf. Reply and evidence, on behalf of the Opposite Parties, was ordered to be filed on 28.03.2015. Reply and evidence was not filed on behalf of the Opposite Parties on 28.03.2015. Thereafter, on the request of the Counsel for the Opposite Parties, the consumer complaint was adjourned to 30.03.2015, 24.04.2015 and 12.05.2015. Finally, only the written version was filed by the Opposite Parties, on 12.05.2015. However, as stated above, on the said date i.e. 12.05.2015, the complaint was called many times, but none entered appearance, on behalf of the complainants, on account of the reason, that the main Counsel engaged in the same (complaint), had to appear before the Hon'ble High Court of Punjab and Haryana at Chandigarh, in the cases, referred to above, as a result whereof, he (main Counsel) deputed his friend Mr.Ajay Singla, Advocate, who was present in the District Forum, to appear before it (District Forum) and receive copy of the reply and evidence, if filed by the Opposite Parties, but since he (Mr.Ajay Singla, Advocate), forgot to remain present there (District Forum), on 12.05.2015, the same (complaint) was dismissed in default of their (complainants)  appearance.
12.       It may be stated here that, perusal of the District Forum record reveals that on 12.05.2015, only written version and certain documents were filed by the Opposite Parties. Evidence, in support of the written version was still to be filed by the Opposite Parties. It means that the complaint could be said to be at the preliminary stage only. In our considered opinion, in the interest of justice, the District Forum should have granted one more opportunity, to the complainants, but it did not and dismissed the complaint in default of their appearance. It is settled principle of law that every lis should normally be decided, on merits, than by resorting to the 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.
13.       No doubt, there was negligence, on the part of the Counsel for the complainants, as it was required of him, to remain present, in the District Forum, on the date fixed i.e. 12.05.2015, when the case was called for and, if he had to appear before the Hon'ble High Court of Punjab and Haryana at Chandigarh, in the cases, referred to above, and deputed his friend Mr.Ajay Singla, Advocate, to appear before the District Forum, and receive copy of the reply and evidence, if filed by the Opposite Parties,  who also forgot to do so, it was his (main Counsel) bounden duty to keep in touch with him (Mr.Ajay Singla, Advocate), to know the status of the case and remind him to remain present in the District Forum, on the said date for the purpose, but he failed to do so. Since, the Counsel for the complainants did not take the requisite measures, referred to above, negligence was attributable to him.  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 complainants, to prosecute the complaint, so that the same 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.
14.       On account of the negligence of the complainants or their Counsel, delay in the disposal of complaint, on merits, shall be caused.  According to Section 13 (3A) of the Act, endeavour should be made to decide the 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, the complaint is required to be decided, within a period of 5 months, from the date of service of the Opposite Party(s). The complaint had been filed on 05.02.2015. A period of three months has already lapsed. Since, the case is being remanded back, certainly further delay shall be caused, in the disposal thereof.  Thus, the appellants/complainants are required to be burdened with costs.
15.       For the reasons recorded above, the appeal is accepted.  The order impugned is set aside. The complaint is remanded back to the District Forum, with a direction to restore the same, to its original number, proceed further,  from the stage, at which, it was dismissed  in default of appearance of the complainants, and decide the same, afresh, on merits, in accordance with the provisions of the Act.  However, the appellants/complainants are burdened with costs of Rs.5,000/- for causing delay, in the disposal of complaint, afresh, on merits. The payment of costs, in equal shares, to the respondents/Opposite Parties, shall be a condition precedent. 
16.       The Parties are directed to appear before District Forum (II) on 17.06.2015, at 10.30 A.M., for further proceedings. 
17.       The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date and time fixed i.e. 17.06.2015, at 10.30 A.M.
18.       Certified copies of this order, be sent to the parties, free of charge.
19.        The file be consigned to the Record Room, after due completion.

Pronounced.

08.06.2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

(DEV RAJ)

MEMBER

Sd/-

(PADMA PANDEY)

      MEMBER

Rg