State Consumer Disputes Redressal Commission
One Mobikwik Systems Pvt. Ltd. vs Munish Kumar on 18 January, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Revision Petition No.73 of 2017
Date of Institution: 26.10.2017.
Date of Decision : 18.01.2018.
One Mobikwik Systems Private Limited, 2nd Floor, Orchid Centre
Golf Course Road, Sector 53, Gurgaon, Haryana.
......Petitioner/OP No.1.
Versus
1. Munish Kumar S/o Kuldeep Kumar R/o Khukhrian Colony,
Khalsa School Road, Khanna, Tehsil Khanna, District Ludhiana.
.....Respondent/Complainant
2. Quadrant Televentures Limited, 407, 3rd Floor, Elite Arcade,
the Mall, Ludhiana District Ludhiana (Punjab).
....Respondent/OP No.2.
Revision against the orders dated
26.05.2017 and 19.09.2017 of the District
Consumer Disputes Redressal Forum,
Ludhiana.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the petitioner : Sh. Dixit Garg, Advocate JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The instant petition has been filed by the Petitioner/Opposite Party No.1 (in short "Opposite Party") against the orders dated 26.05.2017 & 19.09.2017 passed by District Consumer Disputes Redressal Forum, Ludhiana (in short 'District Forum'). Vide order RP No.73 of 2017 2 dated 26.05.2017 the petitioner/opposite party No.1 has been proceeded against ex-parte and vide order dated 19.09.2017 the application filed by the petitioner/OP No.1 has been dismissed by the District Forum having no power of review.
2. Notice of the revision petition has been served upon the respondent No.1/complainant, twice dasti through the District Forum and the reports of the District Forum dated 09.01.2018 & 17.01.2018, in this regard have been placed on the record today. None is present on behalf of the respondent/complainant despite repeated calls. Hence, he is proceeded against ex-parte.
3. Shorn of unnecessary details, the facts relevant for disposal of this petition are that respondent/complainant (in short 'complainant') filed a complaint under Section 12 of the Consumer Protection Act, 1986 ( in short, "the Act") against the opposite parties No.1 & 2 alleging deficiency in service on their part and seeking following reliefs:
(i) to pay back the penalty amount of Rs.100/- to the complainant taken by OP No.2.
(ii) to pay back the amount of Rs.7.68/- charged from complainant by OP No.1 as transfer fee.
(iii) to pay the 10% cash back from OP No.1 on paying the bill by using mobikwik wallet, amounting Rs.114.60/- RP No.73 of 2017 3
as 10% of bill amount i.e. Rs.1,146/-, which was paid on 28.02.2017.
(iv) to pay the Rs.55,000/- as compensation of humiliation, mental agony and harassment suffered by the complainant.
(v) to pay Rs.22,000/- of litigation expenses.
4. Notice of the complaint was issued to the opposite parties by the District Forum on 27.03.2017 for 26.05.2017 through registered post. On that date none appeared on behalf of the opposite party No.1/petitioner and it was proceeded against ex-parte. Hence, this revision petition.
5. We have heard the learned counsel for the petitioner/OP No.1 and gone through the records.
6. Learned counsel for the petitioner contends that the notice sent to the petitioner was misplaced as interior work was going on in the office of the petitioner Company and due to this reason they could not appear before the District Forum on the date fixed i.e. 26.05.2017. He further contends that they came to know about the instant complaint in the month of September, 2017 when the said file was found. They immediately moved an application for setting aside ex-parte order dated 26.05.2017. However, the District Forum dismissed the same vide order dated 19.09.2017 having no jurisdiction to review its own order. Learned counsel RP No.73 of 2017 4 submits that the absence of the petitioner on the date fixed is not intentional but due to the above reason and prayed that the impugned orders may be set aside and the petitioner may be allowed to join the proceedings and to file the reply and evidence.
7. We have given our thoughtful consideration to the contentions raised by the learned counsel for the petitioner.
8. It is admitted fact that notice was served to OP No.1 and it was proceeded ex-parte on non-appearance, but the fact remains that it is settled principle of law, as laid down by the Hon'ble Supreme Court in Bhagmal & Ors. v. Kunwar Lal AIR 2010 SC 2991, that a party, which claims to have substantial right, which require adjudication by a Court of law, should not be denied the opportunity of hearing, by not setting aside the order on hyper- technical grounds.
9. In another case Bhagwan Swaroop vs. Mool Chand"
(1983) 2 SCC 132, Hon'ble Supreme Court held that court's approach should be oriented with a view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in court. A code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties.
10. Recently, in case Zee Learn Ltd. v. Keshava Murthy D.M. 2017 (1) CPR 658 (NC), the opposite party was ex parte before the District Forum and the Hon'ble National Commission RP No.73 of 2017 5 directed the District Forum to decide the complaint after taking written statement of the opposite party on record and considering all the pleas raised by the parties.
11. The sum and substance is that a party who claims to have substantial right, which requires adjudication by the Court of law/Tribunal, should not be denied of the said opportunity by sticking on to hyper-technical objections. It is settled principle of law that cases should be decided on merit and not merely on technical grounds. Rules of procedure are handmade of justice and to do substantial justice.
12. In view of the above discussion, it is clear that petitioner/opposite party No.1 has been deprived of its valuable right to defend. No prejudice will be caused to the complainant and he can be compensated for the lapse on the part of petitioner/OP No.1, by way of costs, if ex-parte proceedings against the petitioner/opposite party No.1 is set-aside and allowed to join the proceedings with liberty to file its reply/written statement as the complaint is still at the initial stage.
13. Accordingly, present revision petition is allowed and the impugned order dated 26.05.2017 is set-aside qua petitioner subject to costs quantified at Rs.1000/-, out of which Rs.500/- to be deposited in the Consumer Legal Aid Account of District Forum, Ludhiana and Rs.500/- shall be paid to the complainant on or before the date fixed. The petitioner/opposite party No.1 will file RP No.73 of 2017 6 written statement/reply on the date fixed before the District Consumer Forum. So far as, the order dated 19.09.2017 is concerned, since we have set-aside the order dated 26.05.2017, this order has become infructuous.
14. A copy of the order be given Dasti to the counsel for the petitioner free of costs.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (KIRAN SIBAL) MEMBER January 18, 2018 SK/-