State Consumer Disputes Redressal Commission
The Director , Wwics,Punjab. vs Swarup Kumar Mukherjee, Hyderabad. on 10 December, 2013
BEFORE THE
A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD
F.A.No.479/2013 against C.C.No.59/2011, Dist.
Forum, Ranga Reddy Dist.
Between:
1.The Director , WWICS,
Head Office,
A-2, Industrial Area,
Phase-VI,
Mohali , Punjab.
2.Satish Barwal, Legal Dept., WWICS.,
Head Office,
A-2, Industrial Area,
Phase-VI,
Mohali Punjab,
3.Branch Manager,
WWICS Mumbai
Branch,
A-503, 5th
Floor, Shubham Centre-1,
Chakala,
Andheri (East),
Mumbai. Appellants/
Opp.parties
And
Swarup Kumar Mukherjee,
R/o.202, Mirzas Emerald Castle,
Alind Colony, Sudershan Nagar,
Lingampally, Hyderabad. Respondent/
Complainant
Counsel for the Appellants :
M/s.Hari & Associates
Counsel for the
Respondent : M/s.
N.Gopal
QUORUM:SRI R.LAKSHMI NARASIMHA RAO,HONBLE INCHARGE PRSIDENT,
AND
SRI S.BHUJANGA RAO, HONBLE
MEMBER.
TUESDAY, THE TENTH DAY OF DECEMBER, TWO THOUSAND THIRTEEN .
Oral Order: (Per Sri S.Bhujanga Rao, Honble Member) *** This appeal is directed against the order dt.13.04.2013 of the District Forum Ranga Reddy Dist. made in C.C.No.59/2011, which is filed by the respondent/complainant, seeking direction to the opposite parties 1 and 3 to refund to the complainant, a sum of Rs.1,15,000/- the amount obtained by them from the complainant, to award cost of money borrowed from the Bank i.e. Rs.23,000/-, to award compensation of Rs.1 lakh towards the mental agony caused to the complainant and to award costs of Rs.10,000/- to the complainant.
The brief case of the complainant as set out in the complaint is as follows:
The complainant enrolled with the WWICS, Mumbai branch for receiving the services relating to immigration to Canada after he was assessed by the opposite party as eligible. The complainant paid an amount of Rs.1,15,000/- on 11.04.2010. On receiving all the required fees, documents, information and cooperation from the complainant, an internal file no.FNS # 60000 was opened by the opposite party. Thereafter, the opposite party has breached in meeting the opposite party obligation in rendering professional services, agreed under the contract. The opposite party had not attempted to file immigration case on behalf of the complainant. The complainant has not violated any of the obligations as agreed in the contract. Therefore, although complete professional fees was obtained by the opposite parties, they have breached the contracted services under professional services and therefore they are legally bound to make good loss. The complainant declined to accept any of the extraneous proposals made by the opposite party and claimed his money back. As the opposite party failed to submit his application, for immigration to Canada, the opposite party refunded the amount of draft, but refused to pay the fees and charges obtained by opposite party for the immigration services. Rejection of the complainants claim for refund on the ground that due to non submission of the documents by the complainant, he became in eligible for crossing the age limit, although he was eligible at the time of making application, is malicious and breaches the opposite partys own statement made in mails. Thus, the opposite partys attempt to decline his claim stems from opp.partys own failure to provide him services, error of assessment and criminal breach of contract. Vexed with the attitude of the opposite party, the complainant got issued a legal notice dt.30.11.2010 asking for refund of money paid by him. When the complainant approached the head office of the opposite party, they requested him to submit application for refund once again, accordingly, the complainant submitted another application. But the opposite party approved only Rs.45,000/- instead of full and final claim. Hence the complaint.
Notices sent to the opposite parties 1 and
2 were returned with an endorsement left/returned to the sender. Therefore, the complainant made paper publication for appearance of the opposite parties 1 and 2 on 04.10.2012, on that day also opposite parties 1 and 2 did not appear before the District Forum and as such, the District Forum set them exparte on 08.11.2012.
During the course of enquiry, in order to prove his case, the complainant filed his evidence affidavit and got marked Exs.A1 to A16.
Upon hearing the counsel for the complainant and on consideration of the material on record, the District Forum allowed the complaint in part directing the opposite parties to pay the entire money of Rs.1,15,000/- to the complainant along with bank interest of Rs.23,000/- as claimed by the complainant. The opp.parties are also directed to pay Rs.1 lakh to the complainant Aggrieved by the said order, the opposite parties preferred the above appeal contending that the appellants 1 & 2 could not notice the alleged paper publication issued on 04.10.2012, as such they were set expart, on account of non appearance. That Mr.Prasad B.Parulekar who has been named as the 3rd opp.party has left the services of the opposite party no.1 company, as such, the same was not brought to the notice of the appellants 1 and 2 . The District Forum cannot interfere in contractual rights and liabilities of the parties. The appellants/opposite parties finally prayed to set aside the impugned order.
We heard the counsel for both the parties and perused the entire material placed on record.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
Admittedly, the impugned order is an exparte order passed against the opposite parties by the District Forum. As seen from the impugned order and the record in C.C.No.59/2011, notices were issued to the appellants/opposite parties herein, in the complaint and the notices sent to opposite parties 1 and 2 were not returned and notice sent to opposite party no.3 was returned with postal endorsement left/returned to the sender. Thereafter, on the application filed by the complainant, the District Forum ordered substitute service to the opposite parties 1 and 2, by way of publication in Janatha Daily Newspaper, for appearance of opp.parties 1 and 2 on 08.11.2012. On 08.11.2012, the District Forum allowed the petition in I.A.No.199/2012 stating that the publication was given. Nothing is on record to show that publication was issued in Janatha Daily New Paper for the appearance of opposite parties 1 and 2 on 08.11.2012. However, on 08.11.2012, the District Forum called the opposite parties 1 and 2 absent and set them exparte. The opposite party no.3 engaged counsel, but they did not file their written version, though ample opportunity is given. Hence the opposite party no.3 was also set exparte on 05.12.2012.
In view of the above facts and circumstances, we have no hesitation to hold that there was no proper service of notice on opposite parties 1 and 2 in the complaint. Therefore, the exparte order dt.08.11.2012 and the main order passed in the complaint on 30.04.2013 i.e. the impugned order are not sustainable under law, as no opportunity was given to the opposite parties 1 and 2 to contest their case in the complaint and the impugned order is liable to be set aside against the opposite parties 1 and
2. Having regard to the facts and circumstances of the case and contentions of both the parties, we are inclined to set aside the impugned order, not only against the opposite parties 1 and 2, but also against opposite party no.3, with an intention to give an opportunity to opposite parties 1 and 2 and another opportunity to opposite party no.3 to contest the complaint and prove their case.
In the result, the appeal is allowed.
The impugned order of the District Forum is set aside. The District Forum is directed to restore the complaint to file and conduct enquiry afresh, giving opportunity to the appellants/opposite parties to file their written version and opportunity to both the parties to adduce their respective evidence, afresh and dispose of the complaint as early as possible, preferably within three months.
Both the parties are directed to appear before the District Forum on 06.01.2014 without insisting for notice, for their appearance. In view of the facts and circumstances of the case, there shall be no order as to costs.
INCHARGE PRESIDENT MEMBER Pm* Dt. 10.12.2013