State Consumer Disputes Redressal Commission
Simarandeep Kaur vs Johnnie Walker And Others on 2 March, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.97 of 2022
Date of institution : 11.02.2022
Date of decision : 02.03.2022
Simrandeep Kaur, Mobile No.9855127568, email simrandeep484@
gmail.com, aged 26 years D/o S. Manjit Singh, R/o Flat No.92,
Multitech Towers, Sector 91, Chaparchiri Khurd, District SAS Nagar
(Mohali).
.....Appellant/Complainant
Versus
1. Johnnie Walker, DIAGEO Beverage, through United Spirits Ltd.
UB Tower, 24, Vittal Mallya Road, Bengaluru.
2. Karan Enterprises, Liquor & Wine Shop, Sector 69, Opposite
Sector 70, Mohali-160062.
3. Food Safety & Standard Authority of India, FDA Bhawan, Near
Bal Bhawan, Kotla Road, New Delhi-110022, India.
(Complaint was not admitted against OP No.3/respondent No.3)
.....Respondents/Opposite Parties
First Appeal under Section 41 of the
Consumer Protection Act, 2019
against the order dated 19.10.2021
passed by the District Consumer
Disputes Redressal Commission, SAS
Nagar (Mohali).
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No First Appeal No.97 of 2022 2 Argued by:-
For the appellant : Sh. Bhawan Deep Jindal, Advocate ..................................................................................
JUSTICE DAYA CHAUDHARY, PRESIDENT This appeal has been filed by the appellant/complainant-
Simrandeep Kaur under Section 41 of the Consumer Protection Act, 2019 (in short "Act") to challenge the impugned order dated 19.10.2021 (Annexure A-1) passed by the District Consumer Disputes Redressal Commission, SAS Nagar (Mohali) (in short the "District Commission"), whereby consumer complaint No.2291 of 2019 filed by her has been dismissed for default.
2. Briefly, the facts of the case as made out in the present appeal are that the appellant/complainant filed a consumer complaint under the Act against respondents/OPs before the District Commission, SAS Nagar (Mohali) through her counsel namely Sh. Gajjan Singh Sadhrania, Advocate. Said complaint was admitted vide order dated 13.11.2019 and thereafter notice was issued for 15.01.2020. Counsel on behalf of OP No.1 filed his memo of appearance and fresh notice was issued to OP No.2. Thereafter, case was adjourned to 03.03.2020 for filing of reply. The case came up for hearing on 03.03.2020 and memo of appearance alongwith reply was filed by the counsel appearing on behalf of OP No.1, but no power of attorney was filed. It was mentioned in the order that notice could not be issued to OP No.2 due to shortage of postal stamps and fresh notice was issued to OP No.2 for 09.04.2020. On that date i.e. 09.04.2020, the District Commission was closed due to Covid-19 and First Appeal No.97 of 2022 3 the case was taken up for hearing on 17.06.2020 and again the fresh notice was issued for 28.09.2020. Even on that day court was not held and thereafter it was adjourned to 04.01.2021 and thereafter the case was adjourned for one reason or the other. Ultimately, the case came up for hearing on 19.10.2021 and it was dismissed for want of prosecution.
3. Said order dated 19.10.2021 has been challenged by the appellant/complainant by raising various grounds. Learned counsel for the appellant submits that the District Commission has not appreciated the facts and circumstances of the case in the right perspective and without applying the legal mind and without interpretation of the law on the issue involved, the impugned order has been passed. Learned counsel further submits that the case was listed for hearing on various dates, but it was adjourned on one ground or the other. Learned counsel also submits that the case was fixed for hearing for service of OP No.2, but instead of issuing summons, the complaint was dismissed for want of prosecution. It is also the argument of learned counsel for the appellant that the appellant/complainant was representing through counsel, who informed her that he was regularly attending the case, but the proceedings were not going on due to Covid-19 or one or the other reason, but not because of fault on the part of the appellant or her counsel. At the end, learned counsel submits that as per provisions of Section 38(3)(c) of the Act 2019, the duty is cast upon the District Commission to decide the complaint on merits even if complainant failed to appear on the date of hearing. Moreover, no prejudice would be caused to the respondents/OPs in First Appeal No.97 of 2022 4 case impugned order dated 19.10.2021 is set aside and complaint is restored for deciding the same on merits. Learned counsel has relied upon judgments of the case of the Hon'ble Supreme Court of India in "Bhagmal & others Vs. Kunwar Lal" AIR 2010-SC-2991 and "State of Punjab & another Vs. Shamlal Murari & another" AIR 1976-SC- 1177 in support of his arguments.
4. There is a delay of 70 days in filing of the appeal and the appellant/complainant has filed a miscellaneous application No.173 of 2022 for condoning the delay of 70 days. For the reasons recorded in the application, delay of 70 days in filing of the appeal is condoned and the miscellaneous application No.172 of 2022 is disposed of accordingly.
5. The impugned order dated 19.10.2021, whereby the complaint was dismissed, is reproduced as under:-
"We have perused our earlier zimni orders. It is on the file that the complainant has not appeared even once after 03.03.2020. The zimni orders of this Commission are duly uploaded on the internet. We feel that the complainant must be aware of the proceedings going on in this Commission. Moreover, there is nothing in the record whether the bottles were deposited by the complainant in this Commission or not. Case called several times during the day. None appeared for the complainant. It is 4.30 p.m. The complaint is dismissed for want of prosecution. File be consigned to record."
For consideration of the small issue involved in the impugned order, the zimni orders passed on each and every date are re-produced as under:
"13.11.2019 Present: Shri Kulwinder Singh proxy counsel for complainant.
"Coram is incomplete. Complainant purchased Johnnie Walker Whisky from OP No.2 on 15.05.2019, but receipt in that respect not issued despite demand. OP No.1 is manufacturer and OP No.3 is qualified certifying agency. On opening of one of bottle, fungus like substance was noticed. Fault , if any, in this respect remains of manufacturer or of supplier and not First Appeal No.97 of 2022 5 of the Governmental agency. OP No.3 is Governmental agency and there is no deficiency in service on part of OPNo.3 and as such complaint against OP No.3 does not deserve to be admitted. However, complaint against OP No.1 and 2 deserves to be admitted, due to providing of sub standard or whisky not fit for consumption. Complaint is within limitation. Same admitted subject to just exceptions. This Forum has pecuniary and territorial jurisdiction. Notice to OP No.1 and 2 be issued for 15.01.2020. Complaint against OP No.3 not admitted."
"15.01.2020 Present: Sh. Karan Single proxy counsel for the complainant.
Complaint against OP No.3 not admitted vide order dated 13.11.2019.
"Sh. Amit Kohar, advocate has filed memo of appearance on behalf of OP No.1, which does not bear advocate welfare stamp. Be affixed on the next date of hearing. Registered cover containing summons of OP No.2 received back without any report as per office report. Fresh summons to OP No.2 be issued at the address mentioned in the complaint for 03.03.2020 in terms of earlier order. POA, reply, self attested affidavit, self attested document and affixation of stamp be also filed for the date fixed."
"03.03.2020 Present :- Complainant in person.
Ms. Rupali counsel for OP No.1.
Complaint against OP No.3 not admitted vide order dated 13.11.2019.
Coram is incomplete. Reply alongwith memo of appearance and documents filed by counsel for OP No.1. As per office report, notice to OP No.2 could not be issued due to shortage of postal stamps. Fresh notice to OP No.2 be issued for 09.04.2020."
"17.06.2020 Present : None Complaint against OP no.3 not admitted vide order dated 13.11.2019.
File taken up today as on 09.04.2020, the Forum was closed due to lock down. None appeared for the party perhaps due to spread of COVID-19. As per office report, notice not issued due to shortage of postal stamps. Fresh notice to the OP No.2 be issued in terms of earlier order for 28.09.2020."
"04.01.2021 Present:- None for the complainant and OP No.1 Complaint against OP No.3 not admitted vide order dated 13.11.2019.
File taken up today as on 28.09.2020 work was suspended due to COVID. Coram is incomplete as the Member is on leave and another member has resigned. Put up for 26.02.2021 for further proceedings."
"26.02.2021 Present :- None for the complainant and OP No.1 Complaint against OP No.3 not admitted vide order dated 13.11.2019 Ld. President is away to Ropar for performing his duties there. Put up for 03.05.2021 for further proceedings."First Appeal No.97 of 2022 6
"03.05.2021 Present :- None for the complainant.
Coram is incomplete. Be listed for 04.06.2021 for further proceedings."
"27.08.2021 Present :- None for the complainant.
File taken up today as the same could not be taken up on 04.06.2021 due to shifting of building. Ld. President is away to Ropar for performing his duties there. Put up for 19.10.2021 for further proceedings."
6. On perusal of said zimni orders, it is apparent that the complaint was admitted against OPs No.1 and 2 vide order dated 13.11.2019 and notices issued to OPs No.1 and 2 for 15.01.2020. On 15.01.2020 Mr. Amit Kohar, Advocate filed his memo of appearance on behalf of OP No.1 and fresh notice was issued to OP No.2. Thereafter, the case was adjourned to 03.03.2020 for filing reply, power of attorney, self attested affidavit, self attested documents and affixation of stamp (Annexure A-4). On 03.03.2020, Ms. Rupali counsel on behalf of OP No.1 filed reply alongwith documents and memo of appearance and it was adjourned to 09.04.2020 for issuance of notice to OP No.2. It is pertinent to mention here that the case was not taken up on 09.04.2020, as the District Commission was closed due to Covid-19. The file was taken up on 17.06.2020 and on that day also neither the parties were informed nor their counsel about the said date, as is clear from perusal of said zimni order dated 17.06.2020. On 17.06.2020, the case was adjourned to 28.09.2020 but the file was not taken up on that day, as the work was suspended due to Covid-19 and it was taken up on 04.01.2021. Even on 04.01.2021 also the quorum was not complete and parties were also not informed about the said date, as it is clear from said order dated 04.01.2021. The case was First Appeal No.97 of 2022 7 adjourned to 26.02.2021. On that day also the President of the District Commission was away to Ropar and it was adjourned to 03.05.2021. On 03.05.2021 as the quorum was incomplete it was adjourned to 04.06.2021. Even on 04.06.2021 also the case was not taken up due to shifting of building of the District Commission. File was taken up on 27.08.2021. On that date i.e. 27.08.2021, the President of the District Commission was away to Ropar and the case was adjourned to 19.10.2021 for further proceedings.
7. On perusal of above said zimni orders, it is apparent that neither the parties nor their counsel were informed about the dates, on which the case was not listed for hearing due to one reason or the other either by telephonically or through notices. It was the duty of the District Commission to inform about the said dates when the case was taken up at their back, as they had no knowledge about the same. It appears that the District Commission has not carefully perused the previous zimni orders while recording the finding in order dated 19.10.2021, which is contrary to the facts.
8. On perusal of each and every order, it is apparent that no such directions were ever issued by the District Commission to the appellant/complainant for depositing the bottle in question. By presuming that the orders are on the internet and complainant might be aware of the proceedings going before the District Commission appears to be absurd. It is also pertinent to mention here that only OP No.1 was served and even service of OP No.2 was not complete. Meaning thereby the impugned order has been passed without any application of mind.
First Appeal No.97 of 2022 8
9. Moreover no prejudice is going to be caused to the OPs, as it is a settled proposition of law as held in number of judgments that a party who claims to have a substantial right which requires adjudication by a Court of Law, should not be denied the opportunity of hearing on hyper-technical grounds. At the most it can be the lapse on the part of the counsel who did not appear due to non taking up of the case on the fixed dates, as discussed above. As such, there is no fault on the part of the appellant/complainant. The District Commission has passed the impugned order without seeing the previous zimni orders.
10. The Hon'ble Supreme Court of India in judgment of case "Vareed Jacob Vs. Sosamma Geevarghese and others"2004(6)- SCC-378, has held that "if the suit is dismissed for default without any reference to the ancillary orders passed earlier, then the interim orders shall revive as and when the suit is restored." In view of the above judgment of the Apex Court, there is no difficulty to hold that when the suit is dismissed for default without any reference to the ancillary orders passed earlier, the interim orders shall revive as and when the case is restored.
11. It is also settled principle of law that the complaint should be decided on merits instead of raising technical objections. The procedure is in the handmaid of justice, which is meant for advancement of the interest of the Consumer and same is meant to advance its cause and not to obstruct the same. The procedural rule, therefore has to be liberally construed and court must not be taken into consideration the strict interpretation whereby technicality may tend to First Appeal No.97 of 2022 9 triumph over justice, as has been held in case of Shamlal Murari (Supra).
12. In view of facts and detailed discussion as above and on perusal of impugned order, there is merit in the contentions raised by the learned counsel for the appellant/complainant and the impugned order dated 19.10.2021 passed by the District Commission is liable to be set aside. Accordingly, finding merit in the appeal the same is allowed and the impugned order dated 19.10.2021 passed by the District Commission is hereby set aside and the case is remanded back to the District Commission with a direction to restore the consumer complaint on its original number and status and to secure the presence of the parties and allow them to pursue their case, in person or through counsel. The appellant is directed to appear before the District Commission on 19.04.2022.
(JUSTICE DAYA CHAUDHARY)
PRESIDENT
(URVASHI AGNIHOTRI)
March 02, 2022 MEMBER
MM