State Consumer Disputes Redressal Commission
Audi India, Division Of M/Volkswagen ... vs Mr. Suresh Singla on 15 January, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Revision Petition No. : 02 of 2015 Date of Institution : 14.1.2015 Date of Decision 15.1.2015 Audi India, Division of M/Volkswagen Group Sales India Pvt. Ltd. Volkswagen Group Sales India Pvt. Ltd. Silver Utopia, 3rd and 4th floor, Cardinal Gracious Road, Chakala, Andheri (East), Mumbai-400 099 Revision Petitioner--- V e r s u s 1. Mr. Suresh Singla, S/o late Sh. Ranauq Ram, R/o House No.1332, Sector 4, Panchkula (Haryana) 2. Ankur Bansal, s/o Ankur Dass Bansal (in fact Arjun in complaint), R/o House No.576, Sector 7, Panchkula (Haryana) 3. Jaycee Automobiles Pvt. Ltd. , Plot No.171, Phase 1, Indutrial Area, Chandigarh, Through its Manager/Authorized Representatives. 4. HDFC ERGO General Insurance Company Ltd., SCO 124-125, Sector 8, Madhya Marg, Chandigarh- through its Manager/Authorized Representatives. ....Respondents--- BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh.
Manish Jain, Advocate for the Revision Petitioner/Opposite Party No.1 Sh. Neeraj Sharma, Advocate proxy for Sh. Sandeep Bhardwaj, Advocate for respondents No.1&2/complainants PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This Revision-Petition is directed against the order dated 16.10.2014, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, Opposite Party No.1 (now Revision-Petitioner), was proceeded against exparte.
2. The facts, in brief, are that, the complainants in the year 2010 purchased Audi A6 2.7 TDI bearing engine No.WAUZBA4F0AY000408, registration No. HR 02 X 0002 for personal use. The vehicle was got serviced by the complainants at regular intervals. On 3.7.2014, the vehicle was taken to Opposite Party No.2, for routine service. The regular service was done and invoice dated 4.7.2014, claiming an amount of Rs.74,460/-, was issued. It was stated that after taking delivery of the vehicle from Opposite Party No.2, it was found that the same was not running smoothly, as it was running prior to its service.
3. On 5.7.2014 the complainants were on way to Mansa Devi Temple alongwith family members when all of a sudden the vehicle stopped in between the road and did not start. The display started giving the indication of gearbox. The complainant immediately called Opposite Party No.1, which did not give proper assistance. It was further stated that complainant No.2, arranged a crane, and towed the vehicle to the dealer at Chandigarh. It was further stated that the family of the complainants suffered a great mental tension and harassment as the vehicle broke down all of a sudden in between the road. It was further stated that thereafter the vehicle was towed to Opposite Party No.1&2. On 7.7.2014 Opposite Parties No.1&2 informed the complainants about an estimate of Rs.6,34,199.10/-, towards the repair cost and told to issue the final estimate after opening the engine and proper diagnosis of the problem in the vehicle. The complainants were shocked to hear that due to adulterated fuel, the fuel line and engine parts got damaged, which needed replacement. The complainants informed that the vehicle was never got refueled after the service, but the Opposite Parties did not pay any heed to their such assertion. It was further stated that Opposite Party No.2 also assured that it will inform the Insurance Company after proper diagnosis of the problem and preparation of final estimate towards the repairs.
4. On 14.7.2014, the Opposite Parties issued an estimate dated 7.7.2014, in the sum of Rs.7,13,523.76/- towards the repairs. It was further stated that on getting the final estimate towards the repairs, the complainants confirmed about informing Opposite Party No.3, but Opposite Parties No.1&2 refused about informing Opposite Party No.3. The complainant himself informed the Insurance Company i.e. Opposite Party No.3. An official of Opposite Party No.3 visited the workshop and inspected the vehicle and got the claim form filled up from complainant No.2. The complainants wrote a number of emails to the Opposite Parties asking about the status of the vehicle, but to no avail. It was further stated that the complainants took delivery of the vehicle under protest after paying a sum of Rs.3,95,190/-
5. It was further stated that Opposite Parties No.1&2 sent an email dated 20.8.2014 to the complainant wherein they agreed to refund the total cost of parts except the labor cost and consumables. The total cost of parts excluding the consumables and repair was Rs.2,75,000/- approximately. It was further stated that Opposite Party No.3 repudiated the claim of the complainants by taking false stand that information with regard to the incident had been given after delay and that the vehicle was dismantled and reassembled. It was further stated that the vehicle was never dismantled prior to the survey. It was further stated that even warranty of the parts replaced was not issued by Opposite Party No.1&2. It was further stated that the amount which was paid by the complainants to the tune of Rs.3,95,190, was not refunded by the Opposite Parties. 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, claiming various reliefs.
6. Despite deemed service, none put in appearance, on behalf of Opposite Party No.1, before the District Forum, as a result whereof, it was proceeded against exparte, vide order dated 16.10.2014.
7. Feeling aggrieved, the instant Revision-Petition, was filed by the Revision-Petitioner/Opposite Party No.1, against the order dated 16.10.2014.
8. We have heard the Counsel for the Revision- Petitioner/Opposite Party No.1, proxy Counsel for respondent Nos.1&2/complainants, and have gone through the record of the case, carefully.
9. The Counsel for the Revision-Petitioner/ Opposite Party No.1, submitted that, no doubt, Opposite Party No.1 was proceeded against exparte on 16.10.2014 by raising presumption of deemed service. He further submitted that absence of the Revision-Petitioner/Opposite Party No.1, on 16.10.2014, in the District Forum, was, neither intentional, nor deliberate, but due to inadvertent mistake no authorized representative on its behalf could appear before the District Forum on 16.10.2014. He further submitted that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to the Revision-Petitioner/ Opposite Party No.1, as, in that event, it would be deprived of filing written statement, as also evidence to rebut the case set up by the complainants. He further submitted that, thus, the order of the District Forum, in proceeding exparte against Opposite Parties No.1, is liable to be set aside, and the case deserves to the remanded back, to it, for fresh decision, after affording it (Opposite Party No.1) an opportunity of filing the written version, and evidence, by way of affidavit(s).
10. On the other hand, proxy Counsel for respondent No.1&2/complainants, submitted that the order dated 16.10.2014, passed by the District Forum being legal and valid, does not call for any interference.
11. Perusal of the District Forum record, reveals that the complaint was admitted, vide order dated 1.09.2014, and notice was ordered to be issued to the Opposite Parties, for 16.10.2014. On 16.10.2014, notice through Registered A.D. Cover sent for the service of Opposite Party No.1, was not received back with any report though a period of 30 days from the date of issuance of the same i.e. on 4.9.2014 had expired. None appeared, on behalf of Opposite Party No.1, on 16.10.2014. Accordingly, the District Forum held that Opposite Party No.1 was deemed to be served but none came present on its behalf, as a result whereof it was proceeded against exparte.
12. In para No.5 of the memorandum of Revision Petition it was admitted by the Revision Petitioner/Opposite Party No.1 that the notice of the complaint was received by it on 25.9.2014 but none could put in appearance on its behalf on 16.10.2014 due to inadvertent mistake. Thus despite service none put in appearance, on behalf of Opposite Party No.1 on 16.10.2014.
13. However, whatever the case may be, it is settled principle of law, that every lis should normally be decided, on merits, than by resorting to 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. In State of Punjab and another vs. Shamlal Murari & Anr., AIR 1976 SC 1177, the principle of law, laid down, was to the effect that procedure, is, in the ultimate, handmaid of justice, and not its mistress, and is meant to advance its cause, and not to obstruct the same. The procedural Rule, therefore, has to be liberally construed, and care must be taken, that so strict interpretation be not placed thereon, whereby, technicality may tend to triumph over justice. It has to be kept in mind, that an overly strict construction of procedural provisions, may result in the stifling of material evidence, of a party, even if, for adequate reasons, which may be beyond its control. We must always remember that procedural law, is not an obstruction, but an aid to justice. Procedural prescriptions are the hand-maid, and not the mistress, a lubricant, not a resistant, in the administration of justice. If the breach can be corrected, without injury to the just disposal of a case, regulatory requirement should not be enthroned into a dominant desideratum. The Courts and the quasi-Judicial Tribunals, have been set up, with the sole purpose of dispensing justice, and not to wreck the end result, on technicalities.
14. In our considered opinion, an opportunity should be afforded to Opposite Party No.1, for filing vakalatnama, written version, and evidence, by way of affidavit(s), so that the complaint 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.
15. Since the Revision Petitioner/Opposite Party No.1 admitted in the memorandum of Revision Petition that it received the notice sent by the District Forum on 25.9.2014, but inadvertently it could not appear on 16.10.2014 for, whatsoever, the reason may be, by not appearing, in the District Forum, on the date fixed, and not filing the vakalatnama, written version, alongwith evidence, by way of affidavit(s), the Revision-Petitioner/Opposite Party No.1, certainly caused delay, in the disposal of complaint, on merits. According to Section 13 (3A) of the Act, an endeavour should be made to decide every 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, an endeavour should be made to decide the complaint, within a period of 5 months, from the date of service of the Opposite Party(s). The complaint was filed, in the District Forum, on 28.08.2014. Since, the case is being remanded back, certainly delay shall be caused, in the disposal thereof. The Revision-Petitioner is, thus, required to be burdened with costs, for causing delay, in the disposal of complaint and to meet the ends of justice.
16. For the reasons recorded above, the Revision-Petition is accepted. The order dated 16.10.2014, rendered by the District Forum, is set aside, subject to payment of costs of Rs.3,000/-, by the Revision-Petitioner/Opposite Party No.1, to respondent Nos.1&2/complainants. The District Forum shall grant only one reasonable opportunity, to Opposite Party No.1, for filing vakalatnama, written reply, alongwith evidence, by way of affidavit(s), and thereafter decide the complaint, on merits, in accordance with the provisions of law. The payment of cost to the tune of Rs.3,000/-, referred to above, to respondent Nos.1&2/complainants, shall be a condition precedent. In other words, the payment of cost, shall be made, before filing the vakalatnama, written reply, alongwith evidence, by way of affidavit(s).
17. The parties are directed to appear, before District Forum (II) on 22.1.2015 at 10.30 A.M., for further proceedings.
2. The District Forum record, alongwith a certified copy of the order, be sent back, to it, immediately, so as to reach there, well before the date and time fixed i.e. 22.1.2015 at 10.30 A.M.
3. Certified Copies of this order, be sent to the parties, free of charge.
4. The Revision-Petition file be consigned to the Record Room, after due completion.
Pronounced.
15.1.2015 sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
PADMA PANDEY MEMBER MP STATE COMMISSION (Revision Petition No. 02 of 2015) Argued by:
Sh. Manish Jain, Advocate for the Revision Petitioner/Opposite Party No.1 Sh. Neeraj Sharma, Advocate proxy for Sh. Sandeep Bhardwaj, Advocate for respondents No.1&2/complainants Dated the 15th day of January 2015 ORDER Vide our detailed order of the even date, recorded separately, this Revision Petition has been accepted. The order of the District Forum has been set aside subject to payment of costs of Rs.3,000/-, by the Revision-Petitioner/Opposite Party No.1, to respondent Nos.1&2/complainants.
The parties have been directed to appear, before District Forum (II) on 22.1.2015 at 10.30 A.M., for further proceedings [DEV RAJ] MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT [PADMA PANDEY] MEMBER