State Consumer Disputes Redressal Commission
S.S. Enterprises vs Dr. Kamlesh Agrawal & Ors. on 15 February, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Appeal No.160/2011
Instituted on 07.03.2011
S.S. Enterprises,
Pro. Shankar Khubchandani,
S/o: Shri Bhagwan Das Khubchandani,
R/o: M.G.Road, Raipur,
Tah. & Dist. RAIPUR (C.G.) ... Appellant.
Vs.
1.Dr. Kamlesh Agrawal, S/o: Shri G.D.Agrawal,
R/o: Ravi Nagar,
Tah. & Dist. RAIPUR (C.G.)
2. Shankar Senetory,
Through: Proprietor, M.G. Road,
Tah. & Dist. RAIPUR (C.G.)
3. Remko Marketing Co. 19, Lakshman Vihar, Phase-2,
Doulabad Road,
GUDGAON (HARIANA) ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSELS FOR THE PARTIES: -
Shri Amit Bajpai, for appellant.
Shri R.K. Bhawnani, for respondent no.1. Respondent no.2, proceeded ex-pate. Shri Manoj Thakur, for respondent no.3.
ORAL ORDER Dated: 15/02/2012 PER: - HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT This appeal is directed against order dated 29.09.2010 of District Consumer Disputes Redressal Forum, Raipur (hereinafter called "District Forum" for short) in complaint case No.145/2010, whereby the complaint of respondent no.1, Dr. Kamleshwar Agrawal was allowed against the appellant herein as well as respondent no.1, who // 2 // was also shown as OP no.1 before the District Forum and OP no.1 was directed to pay Rs.70,000/- along with interest @ 9% p.a. from the date of filing of complaint and also to pay further compensation of Rs.7,000/- for mental agony and cost of litigation Rs.700/- to the complainant.
2. The short question involved for disposal in this appeal is that whether OP no.1 and appellant herein, are one and same firm and whether notice was duly served upon the appellant and even then it failed to appear before District Forum.
3. From the record of the District Forum it appears that in the complaint filed by respondent no.1 / complainant, OP no.1 has been described as Shankar Sanitary, Through- its owner, M.G. Road, Raipur. Another address of the same firm has been shown as S.S. Sanitary, Through- Proprietor, M.G. Road, Raipur along with S.S. Sanitary, the word 'Enterprises' has also been added by handwriting. The record of the District Forum further shows that notice was sent to Shankar Sanitary as well as S.S. Enterprises and the notice, which was sent to S.S. Enterprises, was received back with endorsement of the process server to the effect that the addressee has refused to accept the notice. It has been contended by counsel for the appellant before us that the appellant is having separate entity, than the other firm namely, // 3 // Shankar Sanitary and it has got no connection with that firm. It has further been contended that no notice was ever tendered or was ever refused by the appellant. It has also been submitted by counsel for the appellant that under the provisions of Sales Tax Act, the firm S.S. Enterprises has been registered and no firm in the name of Shankar Sanitary has been registered along with S.S. Enterprises. In this regard, a document has been filed before us at the appellate stage purporting to be photocopy of registration certificate under the provisions of Sales Tax Rules, 1957.
4. We have considered the aforesaid documents and arguments advanced by all parties.
5. The case of the complainant, Dr. Kamleshwar Agrawal, before the District Forum was that he purchased a steam bath tub at the cost of Rs.70,000/- from OP no.1 and OP no.1 has been described having two addresses on the same road and even second address was having two names also i.e. Shankar Senatory and S.S. Enterprises. It was not clarified by the complainant as to whether the steam bath was purchased from S.S. Enterprises or Shankar Sanitary, therefore, a debatable question was there before District Forum to decide and for that purpose, reasonable opportunity, was required to be given to the appellant also to appear and to defend in the complaint. It appears that // 4 // no notice was served upon the appellant by any registered post, merely driver of the complainant went along with process server to the shop and then made endorsement that the notice was tendered to the persons, who were present in the shop and those persons have refused to accept it. Name of those persons have also not been mentioned. Thus, it is doubtful that notice was tendered to the Proprietor of S.S. Enterprises, particularly, when the appellant is saying before us that no such notice was ever tendered and refused by it.
6. In any case there appears a debatable dispute between the parties and in the interest of justice, one opportunity for taking defence needs to be provided to the appellant.
7. Therefore, the appeal is allowed and the impugned award so far as it relates to the appellant is concerned, is hereby set aside and the case of the appellant is sent back to the District Forum with a direction to provide the appellant an opportunity of hearing which includes opportunity for filing written version and documents, affidavits etc. in support thereof and then the matter be decided afresh on merits by the District Forum. Parties are directed to appear before the District forum on 12.03.2012.
(Justice S.C.Vyas) (V.K. Patil)
President Member
/02/2012 /02/2012