State Consumer Disputes Redressal Commission
M/S Somany Ceramics Ltd. vs Sh. Arvind Kumar Nadda. & Anr. on 16 March, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 172/2017
Date of Presentation: 20.01.2017
Order Reserved on : 05.03.2018
Date of Order : 16.03.2018
......
M/s. Somany Ceramics Limited Registered Office 82/19
Bhakerwara Road Mundka New Delhi - 110041 through its
Manager.
...... Appellant/Opposite Party No. 2
Versus
1. Arvind Kumar Nadda s/o Shri O.P. Nadda r/o House
No.107/1 Roura Sector No.2 Bilaspur Tehsil & District
Bilaspur - 174001 H.P.
......Respondent /Complainant
2. M/s. Pirthi Chand Jagdish Chand Puri Una 174303 H.P.
through its Proprietor/Manager.
......Respondent /Opposite Party No.1
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Sameer Thakur Advocate.
For Respondent No.1: Mr. Shashi Bhushan Advocate.
For Respondent No.2 : Ex-parte.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 28.09.2016 passed by Learned District Forum in consumer 1 Whether reporters of the local papers may be allowed to see the order? Yes. M/s. Somany Ceramics Ltd. Versus Arvind Kumar Nadda & Anr. (F.A. No.172/2017) complaint No.104/2014 title Arvind Kumar Nadda Versus M/s. Pirthi Chand Jagdish Chand Puri & Anr.
Brief facts of consumer complaint:
2. Complainant Arvind Kumar filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant approached opposite party No.1 who is seller of tiles manufactured by opposite party No.2. It is pleaded that opposite party No.1 assured that tiles were of high quality and standard. It is further pleaded that complainant purchased ninety boxes of tiles manufactured by opposite party No.2 in consideration amount of Rs.22770/-
(Twenty two thousand seven hundred seventy). It is further pleaded that tiles changed its shades after fixing. It is further pleaded that thereafter complainant complained opposite party No.1 who assured the complainant to take up the matter with opposite party No.2. It is further pleaded that opposite party No.1 after some time informed the complainant that opposite party No.2 has refused to accept the request of complainant. It is further pleaded that opposite parties have sold defective tiles to the complainant and committed deficiency in service and committed unfair trade practice. Complainant sought relief of payment of Rs.500000/- (Five lacs). Prayer for acceptance of consumer complaint sought. 2
M/s. Somany Ceramics Ltd. Versus Arvind Kumar Nadda & Anr. (F.A. No.172/2017)
3. Per contra version filed on behalf of opposite parties pleaded therein that tiles purchased by complainant were installed in the rented house by complainant for the purpose of earning profit. It is pleaded that tiles were sold to the complainant with the condition that after fixation of tiles opposite parties would not be liable. It is further pleaded that complainant did not obtain the opinion of expert relating to manufacturing defect. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint.
5. Learned District Forum allowed the complaint and ordered opposite parties to pay Rs.44000/-(Forty four thousand) to complainant alongwith interest @ 9% per annum from the date of filing complaint i.e. 27.08.2014. In addition learned District Forum ordered opposite parties to pay costs of complaint to the tune of Rs.5000/- (Five thousand) to the complainant.
6. Feeling aggrieved against order passed by Learned District Forum opposite party No.2 filed present appeal before State Commission.
7. None appeared on behalf of opposite party M/s. Pirthi Chand Jagdish Chand Puri despite service. State 3 M/s. Somany Ceramics Ltd. Versus Arvind Kumar Nadda & Anr. (F.A. No.172/2017) Commission proceeded ex-parte against M/s. Pirthi Chand Jagdish Chand Puri. We have heard learned advocates appearing on behalf of appellant and co-respondent No.1 and we have also perused entire record carefully.
8. Following points arise for determination in present appeal.
1. Whether provisions of order XXII of Code of Civil Procedure 1908 would apply in case of death of one of the opposite parties in a complaint filed under Consumer Protection Act 1986?
2. Final order.
Findings upon point No.1 with reasons:
9. Complainant filed affidavit annexure C-1 in evidence. There is recital in affidavit that deponent purchased ninety boxes of tiles manufactured by opposite party No.2 from opposite party No.1 in consideration amount of Rs.22770/- (Twenty two thousand seven hundred seventy).
There is further recital in the affidavit that tiles were defective in nature and tiles changed colour after fixing. There is further recital in the affidavit that due to defective quality of tiles deponent has to purchase new tiles. State Commission has perused annexure C-1 to C-8 filed by complainant carefully.
10. Opposite parties filed affidavit of Pawan Kumar Gupta Manager posted in Somany Ceramics Limited. There is 4 M/s. Somany Ceramics Ltd. Versus Arvind Kumar Nadda & Anr. (F.A. No.172/2017) recital in the affidavit that tiles purchased by complainant were used in the rented house by the complainant for the purpose of earning profits. There is further recital in the affidavit that Somany Ceramics Limited Company is not liable after the fixing of tiles. There is further recital in the affidavit that no expert opinion placed on record relating to manufacturing defect.
11. Submission of the learned advocate appearing on behalf of appellant that as per report of process server submitted before learned District Forum Jagdish Chand Puri was expired and no written application for impleading LRs was filed by complainant before learned District Forum as per order XXII of Code of Civil Procedure 1908 and learned District Forum did not issue any notices to the LRs of deceased Jagdish Chand Puri and committed material procedural irregularity is decided accordingly. State Commission has carefully perused the entire record. In the interim order dated 29.10.2014 passed by learned District Forum there is positive recital that Jagdish Chand Puri was expired and thereafter advocate appeared on behalf of complainant sought time to take necessary steps to bring on record LRs of deceased Jagdish Chand Puri. Thereafter on dated 30.12.2014 learned advocate appeared on behalf of complainant sought time for filing application to implead LRs 5 M/s. Somany Ceramics Ltd. Versus Arvind Kumar Nadda & Anr. (F.A. No.172/2017) of deceased Jagdish Chand Puri. Thereafter on dated 03.01.2015 learned District Forum passed interim order that Ms. Namita Verma has filed power of attorney on behalf of legal representatives of Jagdish Chand Puri. State Commission has carefully perused the power of attorney filed on behalf of Ms. Namita Verma. Power of attorney placed on record by Ms. Namita Verma advocate is signed by Pawan Gupta and Rajeev Puri only. There is recital in the order sheet dated 29.10.2014 that Jagdish Chand Puri has left behind five sons and one daughter as his LRs. Signatures of four sons and one daughter are not available upon power of attorney filed by Ms. Namita Verma advocate. Ms. Namita Verma Advocate did not appear on behalf of other four sons and one daughter of deceased Jagdish Chand Puri. No general power of attorney or special power of attorney filed on behalf of other LRs.
12. As per section 13(7) of Consumer Protection Act 1986 in the event of death of complainant who is consumer and opposite parties against whom complaint was filed then provisions of order XXII of First Schedule of Code of Civil Procedure 1908 would apply before District Forums.
13. As per order XXII rule 4 of Code of Civil Procedure 1908 in case of death of opposite party application would be filed for impleading LRs of deceased as co-party. In the 6 M/s. Somany Ceramics Ltd. Versus Arvind Kumar Nadda & Anr. (F.A. No.172/2017) present consumer complaint no application was filed by the complainant to implead LRs of deceased. In the present consumer complaint learned District Forum did not pass any order relating to impleadment of LRs of deceased Jagdish Chand Puri. In the present consumer complaint learned District Forum did not issue any notice to other LRs of deceased i.e. four sons and one daughter. In the present consumer complaint Ms. Namita Verma Advocate also did not file any power of attorney on behalf of other four sons and one daughter of deceased Jagdish Chand Puri. In the present consumer complaint even no special power of attorney and general power of attorney filed by Rajeev Puri on behalf of other LRs of deceased Jagdish Chand Puri. In view of above stated facts it is held that learned District Forum has committed material procedural irregularity.
14. State Commission is of the opinion that it is not expedient in the ends of justice to dispose of appeal on merits unless material procedural irregularity is not rectified. State Commission is of the opinion that it is expedient in the ends of justice and on the principles of natural justice to remit back the consumer complaint to learned District Forum for impleading LRs of deceased Jagdish Chand Puri in accordance with law and thereafter to dispose of consumer complaint in accordance with law.
7
M/s. Somany Ceramics Ltd. Versus Arvind Kumar Nadda & Anr. (F.A. No.172/2017)
15. Submission of learned advocate appearing on behalf of complainant that learned District Forum has passed order in accordance with law and in accordance with proved facts and on this ground appeal filed by M/s. Somany Ceramics Limited be dismissed is decided accordingly. State Commission is of the opinion that learned District Forum did not comply the mandatory provisions of section 13(7) of Consumer Protection Act 1986 and State Commission is also of the opinion that learned District Forum also did not comply the provisions as mentioned under Order XXII of Code of Civil Procedure 1908. State Commission of the opinion that learned District Forum has committed material procedural irregularity. Point No.1 is decided accordingly. Point No.2: Final Order
16. In view of findings upon point No.1 above appeal is allowed and order of learned District Forum dated 28.09.2016 passed in Consumer Complaint No.104/2014 title Arvind Kumar Nadda Versus M/s. Pirthi Chand Jagdish Chand Puri & Anr. is set aside and complaint is remanded back to the learned District Forum with the order that complainant would file written application to implead LRs of deceased Jagdish Chand Puri strictly as per provisions mentioned under Section 13(7) of Consumer Protection Act 1986 and strictly as per order XXII of Code of Civil Procedure 1908. Thereafter 8 M/s. Somany Ceramics Ltd. Versus Arvind Kumar Nadda & Anr. (F.A. No.172/2017) learned District Forum would decide the application filed under order XXII of Code of Civil Procedure 1908 as per law and thereafter learned District Forum will dispose of consumer complaint strictly as per law and proved facts. Learned District Forum will dispose of complaint within two months after receipt of file from State Commission. Power of attorney filed by Ms. Namita Verma advocate will form part and parcel of order. Parties are directed to appear before learned District Forum on date 09.04.2018. Observations will not effect merits of consumer complaint in any manner. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 16.03.2018.
*GUPTA* 9