State Consumer Disputes Redressal Commission
M/S R.K. & Company. vs Sh. Ashok Kumar. on 1 August, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 387/2016
Date of Presentation: 20.12.2016
Order Reserved On : 25.05.2017
Date of Order : 01.08.2017
......
M/s. R.K. & Company Opposite Police Station Ghumarwin
District Bilaspur H.P.
...... Appellant/Opposite Party
Versus
Ashok Kumar son of Shri Ganpat resident of Village Ladyani
Post Office Laheri Sarei Tehsil Ghumarwin District Bilaspur
H.P.
......Respondent /Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Mrs. Anjali Soni Verma Advocate.
For Respondent : Mr. Mohar Singh Advocate.
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 23.09.2016 passed by Learned District Forum in consumer complaint No.67/2014 title Ashok Kumar Versus M/s. R.K. & Company.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
M/s. R.K. Company versus Ashok Kumar (F.A. No.387/2016) Brief facts of Case:
2. Shri Ashok Kumar complainant filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant purchased Toshiba T.V. vide bill No.643 dated 12.04.2012 in consideration amount of Rs.8900/-(Eight thousand nine hundred). It is pleaded that after purchase of T.V. in the month of August 2012 T.V. did not work properly and complainant asked opposite party to replace the T.V. It is pleaded that opposite party has only repaired the T.V.
and did not replace T.V. with new one. It is further pleaded that after repair of T.V. in the month of August 2012 again T.V. did not work properly and complainant again approached the opposite party for removing the defect but opposite party did not remove defect from the T.V. It is pleaded that as per request of opposite party complainant brought the T.V. from the house of complainant to the shop of opposite party at Ghumarwin on dated 17.06.2013 but opposite party has failed to repair or replace the T.V. It is pleaded that complainant visited the shop of opposite party so many times but opposite party did not return the T.V. to the complainant. Complainant sought relief of compensation of Rs.50000/-(Fifty thousand) for mental harassment and complainant also sought relief of litigation costs and cost of T.V. to the tune of Rs.8900/-(Eight thousand nine hundred) with interest @ 9% per annum till the realization of amount.
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M/s. R.K. Company versus Ashok Kumar (F.A. No.387/2016)
3. Per contra version filed on behalf of opposite party pleaded therein that present complaint is not maintainable. It is pleaded that complainant has no cause of action and locus standi to file the present complaint and complainant is estopped by his own acts conducts omission and commissions. It is pleaded that complaint is bad for non-joinder of necessary party. It is pleaded that manufacturer of Toshiba T.V. is necessary party. It is further pleaded that opposite party has issued warranty up to 11.04.2013. It is pleaded that in fact complainant did not lodge the complaint in the month of August 2012 but lodged the complaint on 22.04.2014. It is pleaded that complaint was lodged after expiry of warranty period given by the company. It is pleaded that complainant did not visit the shop of opposite party in the month of August 2012. It is pleaded that complainant has no cause of action to file the complaint. Prayer for dismissal of complaint sought.
4. Learned District Forum ordered opposite party to replace the T.V. of complainant free of cost in working condition. Learned District Forum further ordered that if opposite party would not replace the T.V. of complainant free of cost then opposite party would refund Rs.8000/-(Eight thousand) to the complainant within 30 days after the receipt of copy of order failing which opposite party would pay interest @ 9% per annum from the date of filing of complaint. Learned District Forum also ordered opposite party to pay punitive compensation to the tune of Rs.3000/-(Three thousand). Learned District Forum also 3 M/s. R.K. Company versus Ashok Kumar (F.A. No.387/2016) ordered opposite party to pay litigation costs to the tune of Rs.2000/-(Two thousand) to the complainant. Feeling aggrieved against order passed by Learned District Forum opposite party M/s. R.K. Company filed present appeal before State Commission.
5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
6. Following points arises for determination in present appeal.
1. Whether affidavit filed by complainant in support of complaint i.e. pleading at the time of institution of complaint could be treated as evidence of complainant under section 13(4) of Consumer Protection Act 1986 for adjudication of controversial facts under consumer dispute under Consumer Protection Act 1986 and whether complaint i.e. pleading and evidence qua controversial facts are two different concepts under law.
2. Final order.
Findings upon point No.1 with reasons:
7. It is proved on record that learned District Forum after perusal of contents of complaint and after perusal of version filed by opposite party observed that opposite party denies and dispute the allegations contained in the complaint.
Thereafter learned District Forum ordered the complainant to adduce evidence for the purpose of adjudication of consumer dispute. It is also proved on record that thereafter learned advocate appearing on behalf of complainant had given statement before learned District Forum on dated 22.04.2016 4 M/s. R.K. Company versus Ashok Kumar (F.A. No.387/2016) that he tender in evidence documents Annexure-C1 & C2 including affidavit filed alongwith complaint at the time of institution of consumer complaint on behalf of complainant and closed the evidence. State Commission has carefully perused affidavit filed in support of complaint filed by complainant before learned District Forum at the time of institution of complaint. Affidavit annexure-C1 was filed before learned District Forum on 22.06.2014 at the time of institution of complaint alongwith complaint in support of complaint. There is recital in the affidavit that affidavit annexure C-I was filed in support of complaint i.e. pleadings.
8. Opposite party filed affidavit of Shri Rajinder Kumar proprietor of M/s. R.K. & Company Ghumarwin annexure-R1 placed on record. There is recital in affidavit annexure-R1 that complainant had purchased TV vide bill No.643 on dated 12.04.2012. There is further recital in affidavit that deponent had given one year warranty upto 11.04.2013. There is further recital in affidavit that complainant did not file any complaint relating to defect in T.V. during the warranty period. There is recital in affidavit that complaint was filed in the month of April 2014. It is also observed by State Commission that there is overwriting over date mentioned in affidavit annexure-R-I filed by Rajinder Kumar relating to filing of complaint before opposite party and overwriting is not signed by Rajinder Kumar. There is further recital in affidavit that warranty period of complainant stood expired. There is recital in affidavit that deponent would 5 M/s. R.K. Company versus Ashok Kumar (F.A. No.387/2016) repair TV after receiving the repair charges which were assessed as Rs.7000/-(Seven thousand). There is further recital in affidavit that complainant refused to pay repair charges of TV.
9. It is held that in consumer dispute evidence qua consumer dispute can be adduced as per mode mentioned under section 13(4) of Consumer Protection Act 1986. Section 13(4) of Consumer Protection Act 1986 is quoted in toto:-
(4) For the purposes of this section, the District Forum shall have the same powers as are vested in a civil court under Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:--
(i) Summoning and enforcing the attendance of any defendant or witness and examining the witness on oath.
(ii) Discovery and production of any document or other material object producible as evidence.
(iii) Reception of evidence on affidavits.
(iv) Requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source.
(v) Issuing of any commission for the examination of any witness.
(vi) Any other matter which may be prescribed.
10. It is proved on record that complainant has relied upon affidavit filed in support of complaint at the time of institution of complaint and it is proved on record that complainant did not adduce any evidence by way of affidavits as per mode mentioned under section 13(4) of Consumer Protection Act 1986 after the date when learned District Forum ordered complainant to adduce evidence qua consumer dispute relating to controversial facts.
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M/s. R.K. Company versus Ashok Kumar (F.A. No.387/2016)
11. State Commission is of the opinion that affidavit filed in support of complaint on dated 20.06.2014 at the time of institution of complaint is only affidavit in support of contents of complaint i.e. pleading and could not be treated as evidence relating to disputed facts inter se parties as defined under section 13(4) of Consumer Protection Act 1986.
12. Complaint is defined under section 2(c) of Consumer Protection Act 1986 which means allegation in writing made by complainant. State Commission is of the opinion that affidavit filed in support of complaint i.e. pleading is an affidavit filed only in support of allegation in writing made by complainant in the complaint qua pleading only. There is no provision under section 13(4) of Consumer Protection Act 1986 that affidavit filed in support of contents of complaint i.e. pleading at the time of institution of complaint would be treated as evidence of the complainant under section 13(4) of Consumer Protection Act 1986 relating to adjudication of consumer disputes qua controversial facts. Consumer dispute has been defined under section 2(e) of Consumer Protection Act 1986. It is held that pleadings and evidence qua controversial fats are entirely two different concepts under law. It is held that evidence qua controversial facts could be adduced only as per modes mentioned under section 13(4) of Consumer Protection Act 1986 only. State Commission is of the opinion that learned District Forum has committed material irregularity by way of admitting affidavit filed in support of complaint i.e. pleading as evidence of 7 M/s. R.K. Company versus Ashok Kumar (F.A. No.387/2016) controversial facts in consumer dispute. State Commission is of the opinion that learned District Forum was under legal obligation to obtain evidence strictly as per mode mentioned under section 13(4) of Consumer Protection Act 1986 relating to proof of controversial facts. It is held that learned District Forum has committed material irregularity by way of admitting the affidavit filed in support of pleading as evidence of controversial facts in consumer dispute. State Commission is of the opinion that it is not expedient in the ends of justice to dispose of appeal properly and effectively unless material irregularity is not rectified. State Commission is of the opinion that rectification of material irregularity is essential in the ends of justice and on the principle of natural justice. In view of above stated facts point No.1 is answered accordingly. Point No.2: Final Order
13. In view of findings upon point No.1 above appeal is allowed. Order of learned District Forum dated 23.09.2016 is set aside and complaint is remanded back to learned District Forum with order to receive the evidence of the complainant strictly as per mode mentioned under section 13(4) of Consumer Protection Act 1986 by way of affidavits relating to controversial facts for adjudication of consumer dispute. It is further ordered that opposite party will also be at liberty to file rebuttal evidence by way of affidavits as per mode mentioned under section 13(4) of Consumer Protection Act 1986. Learned District Forum will dispose of complaint within two months after the receipt of file. 8
M/s. R.K. Company versus Ashok Kumar (F.A. No.387/2016) Parties are left to bear their own litigation costs before State Commission. Parties are directed to appear before learned District Forum Una camp at Ghumarwin on date 24.08.2017. 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 Meena Verma Member 01.08.2017.
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