State Consumer Disputes Redressal Commission
Shivinder Bir vs Diksha Computers on 1 October, 2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Appeal
Case No.
:
269 of 2012
Date
of Institution
:
01.08.2012
Date
of Decision
:
01.10.2012
1.
Col.Shivinder
Bir Singh S/o Late Col.Surinder Singh,
resident of House No.1363, Sector-33-C, Chandigarh.
2.
Urvash
Bir Singh S/o Col. Shivinder Bir Singh, resident of House No.1363, Sector-33-C,
Chandigarh.
--Appellants
Versus
1.
Diksha
Computers, SCO 72, Sector-20-C, Tribune
Road, Near Gurudwara, Chandigarh.
2.
InTarvo
Technologies Ltd. H P Authorized Service Centre, SCO 121-22-23, 3rd
Floor, Sector-34-A, Chandigarh.
3.
Hewlett
Packard Ltd. HP Corporate Office, 24, Salarpuria Arena, Adugodi, Hosur Road,
Bangalore-560030.
....Respondents.
Appeal U/s 15 of
Consumer Protection Act, 1986
BEFORE: JUSTICE
SHAM SUNDER(Retd), PRESIDENT.
MRS. NEENA SANDHU,
MEMBER.
Present:
Sh.Pankaj Chandgothia, Advocate for the appellants.
Sh.Vipul Dharmani, Advocate for respondents No.3.
Respondent No.1 ex parte.
Name of respondent No.2 deleted and appeal against it dismissed.
PER JUSTICE SHAM SUNDER(Retd), PRESIDENT This appeal is directed against the order dated 2.7.2012, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which it dismissed the complaint in default of appearance of the complainants (now appellants).
2. The facts, in brief, are that the complainants, bought a laptop computer model LAPTOP HP(TX2-1005 AU), on 26.2.2010, from Opposite Party No.1(now respondent No.1), vide retail invoice No.02133, copy whereof is annexure C1. The said laptop was having preloaded Windows 7 software alongwith the concerned CD, but later on it turned out that the said software loaded on the laptop was counterfeit. The Opposite Parties took away the accompanied CD, when the laptop was given to them for checking.
It was stated that complainant No.1 is a serving Indian Army Officer and had to leave for his place of posting near Assam, in the first week of March,2010 and he took along the laptop with him for his personal use. It was further stated that on 28.3.2010, the computer laptop suddenly blacked out and thereafter could not be started inspite of repeated attempts. Complainant No.1 talked to his son, complainant No.2 regarding the problem, who in turn, told Opposite Party No.1 about the defect. Opposite Party No.1 instead of guiding complainant No.2, asked him to bring the laptop for checking and repairs. Ultimately, complainant No.1, on reaching Chandigarh, took the laptop to Opposite Party No.1, which after checking the same, found that the problem was grave and genuine. The complainants requested Opposite Party No.1, to replace the laptop, in question, with a new one, but the latter refused to replace the same, on the ground, that the said model had been discontinued, by the Company, in 2009 and the piece sold to them was one of the last pieces of the said model. On the directions of Opposite Party No.1, complainant No.2, took the laptop to Opposite party No.2, on 4.11.2010, which repaired the same, vide service sheet dated 4.11.2010, copy whereof is annexure C2.
It was further stated that Opposite Party No.2, replaced the motherboard of the laptop, as mentioned in the service sheet, which is the most essential and major part of the computer. It was further stated that earlier also, Opposite Party No.2, in the last week of October,2010, replaced the keyboard of the laptop. Thereafter, the laptop broke down on 10.11.2010, and then on 19.11.2010, when it was taken to the Opposite Parties, vide annexure service sheets annexures C-3 and C-4 respectively.
It was further stated that the laptop continued to function in an erratic manner, as it was very slow, in its working, pointing to an inherent defect in it. It was further stated that, by selling a second hand defective laptop, and then not replacing the same, the Opposite Parties were not only deficient, in rendering service, but also indulged 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 by them, directing the Opposite Parties to refund the price of the computer amounting to Rs.43,000/- alongwith interest @ 18% p.a. from the date of purchase till its refund; pay compensation of Rs.20,000/- for physical harassment and mental tension; impose punitive damages for selling a defective product and indulging into unfair trade practice of selling an obsolete model ; and to pay Rs.5500/- as litigation expenses.
3. The complaint was admitted vide order dated 17-5-2012 and notice was ordered to be issued to the Opposite Parties for 31.5.2012, by the District Forum.
For 31.5.2012, Opposite Party No.1 was duly served, but its authorized representative did not appear before the District Forum, and it was proceeded against ex parte. Since Opposite Party No.2, was not served, for want of correct address, and, as such, the complainants were directed to furnish its correct address. However, on behalf of Opposite Party No.3, its Counsel appeared and he was directed by the District Forum to file reply and evidence on 2/7/2012.
4. On 2.7.2012, the complaint was called twice, but none entered appearance, on behalf of the complainants, as a result whereof, at 4.00 p.m. the same was dismissed in default of their appearance, by the District Forum.
5. Feeling aggrieved, the instant appeal, was filed by the appellants/ complainants.
6. On notice, respondent No.1 was duly served, but no authorized representative, put in appearqance on its behalf. It was accordingly proceeded against ex parte.
7. On the basis of statement dated 24.9.2012 made by the Counsel for the complainants, complaint against respondent No.2 was dismissed.
8. The Counsel for respondent No.3, however, put in appearance.
9. We have heard the Counsel for the appellants, respondent No.3, and have gone through the record of the case, carefully.
10. The Counsel for the appellants, submitted that, Tarsem Kumar, Clerk of the Counsel for the complainants, inadvertently noted down the date of hearing as 9th July,2012, instead of 2nd July,2012, and, as such, neither the complainants, nor their Counsel could appear, before the District Forum, on the date fixed. It was further submitted that the absence of the complainants or their Counsel on 2.7.2012, was neither intentional, nor deliberate, but for the reasons, aforesaid. It was further submitted that the order, being illegal, is liable to be set aside.
11. On the other hand, the Counsel for respondent No.3, submitted that the absence of the complainants(now appellants) on 2.7.2012, when the complaint was fixed, was intentional and deliberate. He further submitted that the complainants have the remedy of filing a fresh complaint, on the same of cause action. He further submitted that the order, being legal and valid, is liable to be upheld.
12. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, and, on going through the record, we are of the considered opinion, that the appeal deserves to be accepted, and the case is liable to be remanded back, for fresh decision, in accordance with law, for the reasons, to be recorded hereinafter. As stated above, the complaint was admitted on 17.5.2012 and notice was ordered to be issued to the Opposite Parties for 31.5.2012. For 31.5.2012, Opposite Party No.1 was duly served, but its authorized representative did not appear and it was proceeded against ex parte.
Opposite Party No.2 was not served, for want of correct address, and, as such, the complainants were directed to furnish its correct address. However, on behalf of Opposite Party No.3, its Counsel appeared, and he was directed to file reply and evidence on 2/7/2012. The complaint was, thus, at the initial stage.
On 2.7.2012, none appeared, on behalf of Opposite Party No.3, and the complainant was to furnish the correct address of Opposite Party No.2.
Alongwith the Memorandum of Appeal, the Counsel for the appellants, has filed the affidavit of Tarsem Kumar, Clerk, that he wrongly noted down the date as 9.7.2012, instead of 2.7.2012.
13. It is settled principle of law, that every lis should normally be decided, on merits, than by resorting to the hyper- technicalities. When the 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. Since on 2.7.2012, the complaint was fixed for furnishing the correct address of Opposite Party No.2, by the complainants, the District Forum could adjourn it to some other date, for the purpose of furnishing the correct address and for filing of reply and evidence by Opposite Party No.3, as none had appeared on behalf of it, on that date. No doubt, there was negligence, on the part of the Counsel for the complainants, as he did not confirm the date, which was given in the complaint on 31.5.2012. It is settled principle of law, that for the negligence or inadvertence of the Counsel, the party should not suffer. In our considered opinion, an opportunity should be afforded to the complainants, to prosecute the complaint, so that the same could be decided, on merits, and the rights of the parties are determined by one Forum, on merits, one way or the other. In this view of the matter, the order impugned is liable to be set aside.
14. On account of inadvertence or negligence of the complainants or their Counsel, the delay in the disposal of the complaint, on merits, was caused. According to Section 13 (3A) of the Act, every complaint is required to be decided within three months, from the date of appearance of the Opposite Parties, except the one, in which the goods are required to be sent to the Laboratory for examination. In that event, the complaint is required to be decided within a period of 5 months, from the date of appearance of the Opposite Parties. The complaint had been admitted on 17.5.2012. A period of three months, has already lapsed, much earlier. For causing delay, in the disposal of the complaint, on merits, the appellants are required to be burdened with costs.
15. The Counsel for respondent No.3 , however, submitted that the appellants/complainants, have the remedy to file a fresh complaint, and, as such, the order impugned cannot be set aside. The submission of the Counsel for respondent No.3, in this regard, does not merit acceptance. Since, the complaint was dismissed, in default of appearance of the complainants, on 2.7.2012, they have availed of the legal remedy of filing the instant appeal, against the said order. Once they chose the remedy, which was available to them, by way of filing an appeal, against the order dated 2.7.2012, it would not be in the fitness of things, to direct them to withdraw the appeal, and file a second complaint, on the same cause of action. The submission of the Counsel for respondent No.3, in this regard, being devoid of merit, stands rejected.
16. For the reasons recorded above, the appeal is accepted qua respondents No.1 and 3 and the order impugned is set aside qua them. The complaint is remanded back to the District Forum, with a direction to restore the same, to its original number, proceed further, from the stage, at which, it was dismissed in default of appearance of the complainants and decide the same on merits, in accordance with the provisions of law. However, the appellants/complainants are burdened with costs of Rs.2000/- ( two thousands), for causing delay, in the disposal of complaint. The payment of costs shall be a condition precedent.
17. The parties are directed to appear before District Forum (I) on 15.10.2012 at 10.30 A.M. for further proceedings.
18. The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date fixed.
19. Certified Copies of this order be sent to the parties, free of charge.
20. The file be consigned to the Record Room, after compliance.
Sd/-
Pronounced.
(Justice Sham Sunder)(Retd) October 1, 2012 President.
Sd/- (Neena Sandhu) Member Js STATE COMMISSION (Appeal No.269 of 2012) Present: Sh.Pankaj Chandgothia, Advocate for the appellants.
Sh.Vipul Dharmani, Advocate for respondents No.3.
Respondent No.1 ex parte.
Dated:
ORDER Vide our detailed order of the even date, recorded separately, the appeal has been accepted qua respondents No.1 & 3, and the order impugned has been set aside qua them. The case has been remanded back to the District Forum for fresh decision. The parties have been directed to appear before the District Forum on 15.10.2012 at 10.30A.M. for further proceedings.
(Neena Sandhu) (Justice Sham Sunder)(Retd) Member President