Date of Filing – 10.01.2017
Date of Hearing – 18.10.2017
The challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is to the Judgement/Final Order dated 07.12.2016 passed by the District Consumer Disputes Redressal Forum, Purba Medinipur at Tamluk (in short, Ld. District Forum) in Consumer Complaint No. 166/2016. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent No.1 Sri Prabir Kumar Roy under Section 12 of the Act with the direction upon the Opposite Parties to give connection of the telephone line with broad band service to the complainant within two months, to pay compensation of Rs.10,000/- and litigation cost of Rs.5,000/-.
The Respondent No.1herein being Complainant lodged the complaint asserting that he has a landline telephone with broad band connection of Bharat Sanchar Nigam Limited (BSNL) having Telephone No.03228-262517 corresponding Consumer Id. No.3001276545 and he was going on paying the telephone bills regularly. However, since 02.11.2015 the above telephone with broad band has not been functioning at all and in this regard, all the persuasions and communications regarding reconnection of the same went in vain.
The appellants and respondent no.2 being opposite parties by filing a written version disputed the allegation and it has been stated that due to expansion work of Tamluk-Moyna State High Way through Nimtouri in the month of November, 2015, the cable fault arose for which they are not liable.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the opposite parties. To assail the said order, the OP Nos. 1 & 2have come up in this Commission with the present appeal.
Having heard the Ld. Advocates appearing for the parties and on perusal of order sheet of the Ld. District Forum, it reveals that on 27.08.2016 the complaint was lodged before the Ld. District Forum and on 02.11.2016 the opposite parties had appeared before the Ld. District Forum and the next date was fixed on 23.11.2016 for filing written version. On that date i.e. on 23.11.2016 the opposite parties filed written version but without giving any opportunity to either of the parties to file evidence through affidavit, the Ld. District Forum fixed 05.12.2016 for hearing argument and thereafter proceeded to dispose of the complaint.
The impugned order is apparently illegal on the face of it. Section 13(2) of the Act provides –
“(2) The District Forum shall, if the complaint admitted by it under Section 12 relates to goods in respect of which the procedure specified in sub-Section (1) cannot be followed, or if the complaint relates to any services, -
- Refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;
- where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute, -
- on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or
- ex-parte on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum”.
It is not in dispute that the Ld. District Forum before disposing of the complaint did not ask or direct the parties to file evidence on affidavit in support of their case. Therefore, in view of the decision reported in 2008 (1) CPR 1 (NC) (Mathura Mohan Mahato Mistry – vs. – Dr. Bindeshwar Jha & Anr.) and the provisions of Section 13(2)(a) and (b) of the Act, the Ld. District Forum has proceeded with the complaint wrongly without appreciating evidence of the parties and as such the impugned order is not sustainable in the eye of law. Therefore, the impugned Judgement/Final Order is liable to be set aside.
In view of the above, the appeal is allowed on contest. There will be no order as to costs.
The impugned Judgement/Final Order is hereby set aside.
The case is remitted back on remand with the direction upon the parties to appear before the Ld. District Forum on 27.11.2017 positively and on that date the complainant must file evidence on affidavit and on filing the same, the Ld. District Forum will fix a date for filing questionnaire by the opposite parties and thereafter will proceed to dispose of the case in accordance with law after accepting the evidence to be led by the parties.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Purba Medinipur at Tamluk for information.
