State Consumer Disputes Redressal Commission
M/S Modi Rubber Ltd. And Another vs Amar Nath And Another on 8 July, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION PUNJAB,
DAKSHIN MARG, SECTOR -37 A, CHANDIGARH
First Appeal No.174 of 2021
Date of Institution : 26.04.2021
Date of Decision : 08.07.2022
1. M/s Modi Rubber Limited, 4/7-C, DDA Shopping Centre, New
Friends Colony, New Delhi, through its Authorised Signatory, Shri
S.K. Bajpai, Head-Legal and Company Secretary.
2. M/s Modi Rubbers Limited, 918, G.T. Road, Jalandhar Authorised
Signatory, Shri S.K. Bajpai, Head-Legal and Company Secretary.
........Appellants/Opposite Parties No.2 &3
Versus
1. Amar Nath son of Shri Lehlo Ram, resident of 11/17, Sehgal Colony,
Ladowali Road, Jalandhar.
.....Respondent No.1/Complainant
2. P & GS Department, Life Insurance Corporation of India, Jeevan
Parkash, Parbhat Nagar, Meerut, UP, through its Senior Branch
Manager.
..... Respondent No.2/Opposite Party No.1
First Appeal under Section 41 of Consumer
Protection Act, 2019 against order dated
09.03.2021 passed by the District Consumer
Disputes Redressal Commission, Jalandhar.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mr. Rajinder Kumar Goyal, Member
Mrs. Urvashi Agnihotri, Member Present:-
For the appellants : Sh. J.S. Lalli, Advocate
For respondent No.1 : Sh. Atul Malhotra, Advocate
For respondent No.2 : None
2
First Appeal No.174 of 2021
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
JUSTICE DAYA CHAUDHARY, PRESIDENT:-
The appellants/opposite parties No.2 & 3 (in short OPs No.2 &
3) being aggrieved by the impugned exparte order dated 09.03.2021 passed by the District Consumer Disputes Redressal Commission, Jalandhar (hereinafter called as the "District Commission") in Consumer Complaint No.463 of 2017 whereby the complaint was partly allowed against them, have filed the present appeal under Section 41 of the Consumer Protection Act, 2019 (hereinafter referred as 'Act') by raising a number of grounds.
2. Before considering the arguments and submissions on the merits of the case, it would appropriate to state the relevant facts regarding filing of complaint and passing of order thereafter.
3. Respondent No.1/complainant filed the complaint under Section 12 of the Act, 1986 before the District Commission with the grievance/averments that he was working with the appellants/OPs No.2 and 3 i.e. M/s Modi Rubber Limited as Typist and was insured with OP No.1 through appellants/OPs No.2 and 3 vide Insurance Policy No.2669 on 01.04.1991. It has further been mentioned that as per the scheme, an amount of Rs.11,741.73 paisa was accumulated as on 31.03.1992 and he was legally entitled to receive said amount alongwith interest till date. He was entitled to get the pension benefits from OPs. It was further mentioned that till 31.03.2016, a sum of Rs.1,84,718/- was due towards appellants 3 First Appeal No.174 of 2021 and respondent No.2/OP No.1. A number of letters and reminders were sent to release said amount alongwith interest @24% per annum from the date of issuance of the certificate of insurance as on 09.02.1993 by the Insurance Company but still amount was not released. Thereafter, he issued a legal notice dated 02.09.2016 through counsel and also sent a number of reminders but still nothing was done by the OPs. It was informed by OP No.1 to the complainant vide letter dated 08.09.2016 that a sum of Rs.1,84,718/- as on dated 31.03.2016 was pending with it. Thereafter, the OPs flatly refused to make the payment of claim of the complainant. Stating to be a case of 'negligence' and 'deficiency in service' the complaint was filed with the prayer that the complainant was entitled for amount as mentioned in the complaint and the same be released alongwith interest. A compensation was also sought for causing mental tension, pain and agony as well as harassment caused to him.
4. Notice was issued to the OPs. Despite service appellants/OPs No.2 and 3 failed to appear before the District Commission and they were proceeded exparte.
5. OP No.1/respondent No.2 filed written reply and denied the averments made in the complaint stating in that M/s Modi Rubber Limited Group Superannuation Trust Fund was necessary party and without forwarding all the claim papers by said Trust to OP No.1-Insurance Company, no claim could be processed.
6. After considering the contents of complaint, written reply filed by OP No.1 and evidence/documents available on the file, the District Commission partly allowed the complaint and directions were issued to the OPs, which are as follow:-
4First Appeal No.174 of 2021
"11. In view of above said facts and circumstances, the present complaint is partly allowed and the OPs are directed to pay Rs.1,84,718/- alongwith interest @6% per annum from the date of issuing policy till date of payment. Further, the OPs are directed to pay Rs.10,000/- as compensation and litigation expenses."
7. Aggrieved by said order, the appellants/OPs No.2 and 3 have filed the present appeal by raising a number of grounds.
8. Learned counsel for the appellants submits that the appellants engaged a counsel and all relevant documents were also sent alongwith copy of power of attorney through speed post which were also received by him on 20.03.2018 as per track consignment report. Learned counsel also submits that the appellants were in touch with their counsel and also reminded to supply other relevant information whatever was required. Counsel also assured to pursue the case but still the complaint was decided vide order dated 09.03.2021 at the back of counsel or even the appellants. Learned counsel further submits that the appellants will suffer irreparable loss in case the impugned exparte order is not set aside and decided on merits. The case is good on merits as the complainant was having no existing right to claim benefits of superannuation scheme and his claim was not maintainable before the District Commission. The dispute between the parties was not falling within the jurisdiction of the Consumer Court. The complainant had also earlier filed a case against his termination before the Hon'ble Punjab & Haryana High Court in CWP No.15611 of 1999 which is still pending. The complainant was terminated from service vide order dated 28.09.1993 as his services were no longer required by the appellants Company. Said termination order was also 5 First Appeal No.174 of 2021 subject matter of challenge before the Presiding Officer, Labour Court, Jalandhar and it was decided on 03.09.1998 against which said Civil Writ Petition was filed. At the end, learned counsel submits that all these detailed facts and documents were required to be produced before the District Commission but could not be produced as sufficient time was not granted after service as the counsel engaged by the appellants could not appear before the District Commission. The appellants should not suffer because of action/in action on the part of counsel.
9. None appeared for respondent No.1/complainant and respondent No.2/OP No.1 despite service before this Commission.
10. Heard the arguments of learned counsel for the appellants. We have also carefully perused the impugned order and all the documents available on the file.
11. Facts regarding filing of complaint, passing of exparte order against the appellants and respondent No.2/OP No.1 and partly allowing the complaint filed by the complainant are not in dispute. It is also admitted fact that OP No.1 informed the complainant vide letter dated 08.09.2016 that a sum of Rs.1,84,718/- as on dated 31.03.2016 was pending with him and as per version of OP No.1 that without forwarding all the claim papers by M/s Modi Rubber Limited to OP No.1-Insurance Company, OP No.1 was unable to process the claim. Meaning thereby admittedly appellants/OPs No.2 & 3 did not forward the claim papers to OP No.1- Insurance Company. It is also relevant to mention here that respondent No.2/OP No.1 has not filed any appeal against the impugned order dated 09.03.2021 passed by the District Commission whereby OPs were directed to pay Rs.1,84,718/- alongwith interest @6% per annum from the date of 6 First Appeal No.174 of 2021 issuing the policy till date of payment. Meaning thereby that respondent No.2/OP No.1-Insurance Company accepted the order passed by the District Commission.
12. The appellants/OPs No.2 and 3 have challenged the said order by raising arguments that the appellants/OPs No.2 and 3 had engaged counsel namely Mr. Arvind Randev, Advocate, Jalandhar to pursue his case before the District Commission. Documents alongwith Vakalatnama were also sent to him vide letter dated 15.03.2018, through speed post, which was received by him on 20.03.2018. Thereafter the appellants reminded the said Advocate to provide update information of the case and he promised to provide the same but neither he informed nor appeared before the Court. The appellants/OPs No.2 and 3 were proceeded exparte on 09.03.2021 by the District Commission due to negligence of the said counsel. This contention of the appellants remained unrebutted on the record, as none appeared on behalf of respondent No.1 and respondent No.2 to rebut the same.
13. It is a settled proposition of law that party should not suffer because of fault of the counsel as has been held by the Hon'ble Supreme Court in judgments of cases "Rafiq & Another vs. Munshilal & Another" AIR 1981 SC 140 and "Smt. Lachi & others vs. Director of Land Records & Otheres" AIR 1984 SC 41. The Hon'ble Supreme Court in above cases observed as under:
"What is the fault of the party who having done everything in his power expected of him, would suffer because of the default of his advocate.... The problem that agitates us is whether it is proper that a party should suffer for the inaction, deliberate omission, or misdemeanour of his agent.... We cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted."7 First Appeal No.174 of 2021
14. "Smt. Sahib Kaur Vs. Sukhbir Singh & others" Civil Revision No.1700 of 2004, decided on 25.05.2016 (Punjab & Haryana High Court) and the relevant para No.8 of the judgment is reproduced as under:-
"8. In the circumstances, even if the ex parte order was not set aside, the petitioner ought to have at least been allowed to join the proceedings at the stage at which they were. In any case, in the peculiar facts and circumstances of the case and particularly the fact that the learned trial Court considered the delay in filing the application seeking setting aside the ex parte proceedings to be belated, it is considered just and expedient that the ex parte order should be set aside so as to enable the petitioner to file her written statement and contest the suit of the plaintiff on merits."
15. The power of the Court to set aside ex parte order can be by imposing costs by which the Court can put the party on certain terms as spelled out from the expression "upon such terms as the Court directs as to costs or otherwise". The Hon'ble Supreme Court of India in judgment of case "G.P. Srivastava Vs. Shri R.K. Raizada & others" Special Leave Petition (Civil)17942-43 of 1999, decided on 03.03.2000 has held as under:-
"Even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex-parte decree set aside on such other terms and conditions as were deemed proper by the Trial Court. On account of the unrealistic and technical approach adopted by the courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the appellant- defendant is allowed opportunity to prove his case within a reasonable time. Under the circumstances, the appeal is allowed by setting aside the order of the High Court and of the Trial Court. The ex- parte Judgment and decree passed against the appellant is set aside on payment of costs of Rs.5,000/- to the other side. The Trial Court is directed to afford the appellant opportunity to prove his case and expedite the disposal of the suit preferably within a period of six months from the date of receipt of the copy of this order."8 First Appeal No.174 of 2021
16. The Hon'ble Supreme Court in judgment of case "N. Mohan Vs. R. Madhu", Civil Appeal No.8898 of 2019, decided on 21.11.2019 held as under:-
13. Considering the scope of Order IX Rule 13 CPC and the statutory right to appeal under Section 96(2) CPC, after referring to Bhanu Kumar Jain, in Bhivchandra Shankar More, this Court held as under:- "11. It is to be pointed out that the scope of Order 9 Rule 13 CPC and Section 96(2) CPC are entirely different. In an application filed under Order 9 Rule 13 CPC, the Court has to see whether the summons were duly served or not or whether the defendant was prevented by any "sufficient cause" from appearing when the suit was called for hearing. If the Court is satisfied that the defendant was not duly served or that he was prevented for "sufficient cause", the court may set aside the ex parte decree and restore the suit to its original position. In terms of Section 96(2) CPC, the appeal lies from an original decree passed ex parte. In the regular appeal filed under Section 96(2) CPC, the appellate court has wide jurisdiction to go into the merits of the decree. The scope of enquiry under two provisions is entirely different. Merely because the defendant pursued the remedy under Order 9 Rule 13 CPC, it does not prohibit the defendant from filing the appeal if his application under Order 9 Rule 13 CPC is dismissed." 12. The right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground that the application filed by him under Order IX Rule 13 CPC has been dismissed. In Bhanu Kumar Jain v. Archana Kumar and Another (2005) 1 SCC 787, the Supreme Court considered the question whether the first appeal was maintainable despite the fact that an application under Order IX Rule 13 CPC was filed and dismissed. Observing that the right of appeal is a statutory right and that the litigant cannot be deprived of such right, in paras (36) and (38), it was held as under:- 36. ... A right to question the correctness of the decree in a first appeal is a statutory right. Such a right shall not be curtailed nor 9 shall any embargo be fixed thereupon unless the statute expressly or by necessary implication says so. (See Deepal Girishbhai Soni v. United India Insurance Co. Ltd. (2004) 5 SCC 385 and Chandravathi P.K. v. C.K. Saji (2004) 3 SCC 734.) .............."9 First Appeal No.174 of 2021
17. In view ratio of law laid down by the Hon'ble Supreme Court in above noted judgments and also in the interest of justice and by considering the facts of the case, the appellants/OPs No.2 & 3 deserve to be granted one opportunity to contest the case subject to payment of cost. Moreover no prejudice would be caused to respondent No.1/complainant in case the appellants are allowed to join the proceedings before the District Commission subject to payment of cost of Rs.20,000/- payable to respondent No.1/complainant.
18. In view of above detailed discussion, we deem it appropriate to remand the case to the District Commission to decide the case afresh after hearing the appellants/OPs No.2 and 3 by giving them an opportunity to file written reply and documents.
Accordingly, the appeal is allowed and the order dated 09.03.2021 passed by the District Commission is set aside against the appellants/OPs No.2 and 3 but subject to costs of Rs.20,000/- payable to respondent No.1/complainant. The District Commission is also directed to allow the appellants/OPs No.2 and 3 to file written statements alongwith documents/evidence and to the complainant to file replication and documents, if any, in support of their contentions. We remand the case to the District Commission for deciding afresh, as referred above. The appellants/OPs No.2 and 3 and respondent No.1/complainant are directed to appear before the District Commission on 09.08.2022.
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19. The appellants had deposited an amount of Rs.25,000/- at the time of filing of the appeal with this Commission and further deposited an amount of Rs.1,71,245/- and Rs.67,359/- on 29.07.2021. Said amounts, alongwith interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. Out of which, Rs.20,000/- will be payable to the complainant and remaining amount will be payable to the appellants/OPs No.2 and 3. The appellants and Respondent No.1/complainant may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law.
20. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases and due to pandemic of Covid-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (URVASHI AGNIHOTRI) MEMBER July 08, 2022 (MM)