Delhi

StateCommission

A/4/2015

AIR INDIA & ANR. - Complainant(s)

Versus

M/S ASHISH RUGS - Opp.Party(s)

AMITAB CHATURVEDI

27 Jul 2018

ORDER

 

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

 

Date of Decision: 27.07.2018

 

 

First Appeal No. 04/2015

(Arising out of the order dated 25.04.2014 passed in Complainant Case No. 539/2007 by the District Consumer Disputes Redressal Forum (VI), New Delhi)

 

 

1. Air India

Through its Chairman & Managing Director,

3^rd Floor, Tower-II, Jeewan Bharti,

J-24, Connaught Circus, New Delhi

 

2. Air India,

Through Manager, Cargo Sales,

ASD Building, M.R. Complex,

Indira Gandhi International Airport,

Terminal -2, New Delhi -110010.                            …..Appellant

 

Versus

 

 

M/s. Ashish Rugs,

International, Chauri Road,

Bazar Sardar Khan, Bhadohi,

District Sant Ravi Das Nagar,

221401, Through its Proprietor,

Smt. Phool Wati Devi,                                                    ….Respondent

 

CORAM

 

Justice Veena Birbal, President

Ms. Salma Noor, Member

1.      Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

Justice Veena Birbal, President

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short ‘the Act’) wherein challenge is made to order dated 25.04.2014 passed by the Consumer Disputes Redressal Forum (VI), New Delhi (in short, the “District Forum”) in Complaint Case No.539/2007.  By the impugned order, aforesaid complaint has been allowed and appellant/OP has been directed to return Rs.11,99,935/- to the respondent/complainant with interest @9% from the date of wrong delivery to till realization and pay Rs.50,000/- as compensation including litigation expenses.
2. Briefly the relevant facts are that a complaint under Section 12 of the Act was filed by the respondent herein i.e. complainant before District Forum stating therein that respondent/complainant is dealing in the business of carpet manufacturing and export business. Appellant/OP offered their services as carrier for handling international consignment/consolidation by air through their agent M/s. Bax Global India Pvt. Ltd. being one of their offices at Bhadohi. The said agent requested the respondent/complainant to effect the export of carpet consignment by Air  through appellant/OP. Respondent/complainant delivered the consignment of five rolls of Indian Hand knotted silk and woollen carpets for effecting the carriage by Air with further instructions to deliver the consignment to the consignee i.e. Bank Natwest Bank against the payment acceptance under bank/LC. It was alleged that the agent M/s. Bax Global India after receiving the said consignment at Bhadohi, on behalf of appellant/OP issued an airway bill, the details of which are given in the complaint. It was alleged that the documents were sent to Bank of India, Station Road, Bhadohi. The respondent/complainant awaited for payment but the same was not received.  Thereafter, the respondent/complainant inquired from the agent M/s. Bax Global on 28.03.2005 about the status of the consignment but no reply was given. However, the aforesaid agent on 02.04.2006 informed the respondent/complainant that the consignment had been released to the consignee on 24.03.2006. It was alleged that the respondent/complainant after receiving the information, enquired from his banker on 21.04.2006 about the status of the sale proceeds. It was alleged that on enquiry it was informed that the appellant/OP through its agent had illegally, unlawfully and against the clear instructions had fraudulently delivered the goods to Woven Art Gallery Ltd. on the basis of the forged letter. Thereafter, respondent/complainant wrote several letters to various authorities as to why the consignment was delivered to the buyer without any airway bill and other documents but no satisfactory reply was given. Thereupon, a complaint was filed before the District Forum alleging deficiency in service on the part of the appellant/OP. Respondent/complainant had prayed for issuance of directions to appellant/OP for payment of Rs.14,88,941/- alongwith interest @18%.
3. The complaint was opposed by the appellant/OP by filing written statement. Parties also filed evidence before the District Forum. The matter was listed before District Forum on 12.03.2014 for arguments. On the said date none had appeared for the respondent/complainant and the District Forum had adjourned the matter for 02.09.2014 for arguments. It is stated that on an application for pre-ponement moved by the respondent/complainant the matte was listed on 25.04.2014. On the said date, District Forum allowed the complainant in the absence of the appellant/OP.
4. Aggrieved with the aforesaid order, present appeal is filed by appellant/complainant.
5. Ld. Counsel for appellant/OP has contended that on 12.03.2014 the matter was adjourned for 02.09.2014 for arguments. Thereafter, the respondent/complainant moved an application for early hearing and on the said application, District Forum ordered that notice be issued to appellant/OP for 25.04.2014. However, without issuing notice, the District Forum had taken the matter for hearing on 25.04.2014 and allowed the complaint. It is submitted that the impugned order is bad in law as the same has been disposed of without affording opportunity of hearing to appellant/OP. It is contended that when application for pre-ponement was moved, ld. District Forum ought to have heard the matter after serving notice of pro-ponement application of the appellant/OP. It is further contended that even the defence of the appellant/OP has not been considered while passing the impugned order. It is contended that great prejudice has been caused to the appellant/OP as entire material is not considered by Ld. District Forum while passing the impugned order.
6. On the other ld. counsel for respondent/complainant has argued to the contrary.
7. We have heard the counsel for the parties and perusal the material on record as well as the record of the District Forum.
8. The material on record shows that on 12.03.2014, District Forum passed the following order:

                

“12.03.14

None for complainant.

Present Proxy counsel for OP.

Re-list for O/A on 2.9.14.”

 

9. Thereafter, an application was moved by the respondent/complainant on 12.03.2014 for pre-ponement of hearing on which following order was passed:

“

Notice to OP for 24.04.2014”

 

10. Perusal of the material on record shows that no notice was issued to the appellant/OP in respect of aforesaid said application. There is also nothing on record to show as to what was the mode of service of notice. On perusal of the file we do not find any notice on the application being issued/served upon the appellant/OP. We have also perused the impugned order, we find that written statement of the appellant/OP has not been discussed. Even the evidence of the parties has not been properly discussed and order has been passed giving direction to the appellant/OP to pay to respondent/complainant a sum of Rs.11,99,935/- with interest @9% from date of wrong delivery to till realisation and also to pay Rs.50,000/- as compensation.
11. In view of the above, we find that a prejudice shall be caused to appellant/OP in case opportunity of hearing is not provided to it.  Accordingly, we accept the appeal, set aside the impugned order subject to payment of costs of Rs.15,000/- to respondent/complainant and remand back the case to the District Forum for deciding afresh after giving opportunity of hearing to both the parties. The Ld. District Forum shall re-decide the matter.
12. Parties shall appear before the District Forum on 01.10.2018. On the said date appellant/OP shall pay costs to respondent/complainant. Thereafter, the District Forum shall proceed further in the matter in accordance with law. Since the matter is old, District Forum shall make all efforts to dispose of it within three months of the receipt of the order.
13. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum for information. 

                 Thereafter the file be consigned to record room.     

 

 

 

(Justice Veena Birbal)

•  

 

 

 

(Salma Noor)

•  

Tri