State Consumer Disputes Redressal Commission
Piaggio Vehicles Private Limited, vs 1. Mohinder Kaur, on 10 October, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Revision Petition No. : 25 of 2013 Date of Institution : 24.09.2013 Date of Decision : 10/10/2013 Piaggio Vehicles Private Limited, through its Managing Director, 02, PHOENIX, Bund Garden Road, Pune-411001 and others ..Revision-Petitioner/Opposite Party No.1 V e r s u s 1. Mohinder Kaur, w/o Sh. Sohan Singh Sood, resident of House No.2600, Phase-6, SAS Nagar, Mohali. ..Respondent no.1/Complainant Proforma Respondents 2. Marketing Manager, 4th Floor, Kumar Orion Opp. St.Mira`s College, Koregaon Park Road, Pune-411001, Maharashtra, India. (Service dispensed with vide order dated 26.09.2013). .. Respondent no.2/Opposite Party No.2 3. Managing Director, Heritage Auto Sales, Authorized Dealer Piaggo Vehicles Pvt. Ltd., SCO 144-145, Sector 43-B, Himalayan Mark, Chandigarh-160017. (Service dispensed with vide order dated 26.09.2013). .. Respondent no.3/Opposite Party No.3 BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. Vivek Sethi, Advocate for the Revision Petitioner.
Sh. A.K. Batra, Advocate for respondent no.1.
Service of respondents no.2 and 3, dispensed with vide order dated 26.09.2013.
PER JUSTICE SHAM SUNDER, (RETD.), PRESIDENT This Revision Petition is directed against the order dated 19.08.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, Opposite Party No.1 (now Revision-Petitioner), was proceeded against exparte.
2. The facts, in brief, are that the complainant, in order to purchase a scooter make PIAGGIO, Vespa, `model 2013, approached Opposite Party No.3 (now respondent no.3). It was stated that Opposite Party No.3 sold the scooter, make PIAGGIO, Vespa, bearing Chassis No.MET0000AAPMO25805, Engine no. M449M3025849, to the complainant, on the assurance, that the same was manufactured in the year 2013. A sum of Rs.63,933/-, was paid by the complainant, to Opposite Party No.3, towards cost of the said scooter. The said scooter was got insured by Opposite Party No.3, from ICICI Lombard Insurance Company, and, on the Policy issued by it (ICICI Lombard Insurance Company), its model/year of manufacturing, was also mentioned as 2013. Thereafter, in order to get registered the said vehicle, with the Registering Authority, the complainant approached Opposite Party No.4, whereupon, he was shocked to know, that the scooter sold to him, by Opposite Parties No.1 to 3, was manufactured, in the year 2012, and not in 2013. It was further stated that when the complainant approached Opposite Party No.3, and inquired about the year of manufacturing of the said scooter, he replied vaguely that, as the invoice, in respect of the sale of the same (scooter) was issued on 25.01.2013, the same was to be treated as manufactured in the year 2013. It was further stated that Opposite Party No.3, in connivance with Opposite Parties No.1 and 2, sold the scooter, of the model, which the complainant never intended to purchase. It was further stated that a legal notice was served upon Opposite Parties No.1 to 3, for redressal of the grievance of the complainant, but to no avail. It was further stated that the aforesaid acts of Opposite Parties No.1 to 3, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties (infact Opposite Parties No.1 to 3), to refund the amount of Rs.63,933/-, i.e. the cost of the scooter, alongwith interest @18% P.A., from the date of payment, till realization, and to take back the scooter, in question; Rs.2,385/-, incurred by him, on account of registration of the same (scooter); pay compensation, to the tune of Rs.1 lac, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.22,000/-.
3. Opposite Party No.4, in his written version, stated that he had no role to play, with regard to the sale of scooter, in question, to the complainant. It was further stated that the role of Opposite Party No.4, was only to prepare the Registration Certificate of the scooter, in question, as per its make and model, mentioned on the Sale Certificate/Invoice, as also Insurance Policy. It was further stated that the complainant did not suffer any loss, mental agony or physical harassment, on account of any act of omission and commission of Opposite Party No.4. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite PartyNo.4, nor he indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. Despite service, none put in appearance, on behalf of Opposite Parties No.2 and 3, as a result whereof, they were proceeded against exparte, by the District Forum.
5. On 19.08.2013, when the complaint was fixed for filing reply and evidence by Opposite Party No.1, none put in appearance, on its (Opposite Party No.1), behalf, as a result whereof, it was proceeded against exparte.
6. Feeling aggrieved, the instant Revision Petition, was filed by the Revision-Petitioner/Opposite Party No.1, against the order 19.08.2013.
7. Service of proforma respondents No. 2 and 3, who were Opposite Parties No.2 and 3, was dispensed with vide order dated 26.09.2013, by this Commission, as they were proceeded against exparte, in the District Forum.
8. We have heard the Counsel for the Revision-Petitioner, respondent no.1, and have gone through the record of the case, carefully.
9. Sh. Vivek Sethi, Counsel for the Revision-Petitioner/Opposite Party No.1, who was also Counsel, in the main complaint, submitted that, no doubt, on 25.07.2013, when none put in appearance, on behalf of Opposite Party No.1, in the District Forum, the complaint case was adjourned to 29.07.2013, for filing reply and evidence on its (Opposite Party No.1) behalf, and, again when none put in appearance, on its behalf on the said date, it (complaint case) was adjourned to 19.08.2013, for the purpose, yet, inadvertently, his (Sh. Vivek Sethi, Counsel), Clerk, noted down the wrong date, as 29.08.2013, instead of the actual date i.e. 19.08.2013, as a result whereof, he (Sh. Vivek Sethi, Counsel for Opposite Party No.1), could not put in appearance, in the said Forum, on that date, at the time, when the case was called. He further submitted that the said fact was discovered on 04.09.2013, i.e. the next date of hearing, in the complaint case, when he appeared in the District Forum. He further submitted that the absence of Opposite Party No.1 or its Counsel, on the date fixed, was neither intentional, nor deliberate, but for the reasons, aforesaid. It was further submitted that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to the Revision-Petitioner/Opposite Party No.1, as, in that event, it would be condemned unheard. He further submitted that, thus, the order of the District Forum, in proceeding exparte against Opposite Party No.1, being illegal, is liable to be set aside.
10. On the other hand, the Counsel for respondent no.1/complainant, submitted that the absence of the Counsel for the Revision-Petitioner/Opposite Party No.1, on 19.08.2013, in the District Forum, was intentional and deliberate. He further submitted that three to four dates were granted to Opposite Party No.1/Revision-Petitioner, for filing written version, alongwith evidence, by way of affidavit, but it failed to do so. He further submitted that, no cogent and convincing material was produced, on record, by the Counsel for the Revision- Petitioner (Counsel in the complaint also), to prove, as to what prevented him, from coming present, in the District Forum, on 19.08.2013. He further submitted that the order of the District Forum, in proceeding exparte against Opposite Party No.1, being legal and valid, is liable to be upheld.
11. The perusal of record of the District Forum reveals that the complaint was admitted, vide order dated 25.04.2013 and notice was ordered to be issued to the Opposite Parties, for 10.06.2013, by it (District Forum). On 10.06.2013, Sh. Devinder Singh Soundh, Proxy Counsel, appeared, and filed vakalatnama, on behalf of Opposite Party No.1. Reply on behalf of Opposite Party No.4, and photocopy of Form No.21, Sale Certificate, in respect of the scooter, in question, were filed. As none put in appearance on behalf of Opposite Party No.2, despite service, he was proceeded against exparte, on the said date (10.06.2013). Summons sent to Opposite Party No.3, was received back un-served. Reply and evidence were not filed by Opposite Party No.1, on the said date (10.06.2013). Accordingly the complaint case was adjourned to 25.07.2013, for filing of reply and evidence, on behalf of Opposite Party No.1, as also, fresh summons were ordered to be issued for the service of Opposite Party No.3, through Registered A.D. Cover. On 25.07.2013, again, reply and evidence were not filed by Opposite Party No.1. The complaint case was adjourned to 29.07.2013, for filing reply and evidence, on behalf of Opposite Party No.1, as also for appearance of Opposite Party No.3. On 29.07.2013, again, none put in appearance on behalf of Opposite Party No.1, as also, on behalf of Opposite Party No.3, as a result whereof, he (Opposite Party No.3) was proceeded against exparte, and final opportunity was given to Opposite Party No.1, to file its reply and evidence, by 19.08.2013. However, on 19.08.2013, none appeared on behalf of Opposite Party No.1, as a result whereof, the order impugned was passed, by the District Forum, proceeding exparte against it (Opposite Party No.1).
12. It is settled principle of law, that every lis should normally be decided, on merits, than by resorting to hyper- technicalities. When hyper-technicalities, and the substantial justice, are pitted against each other, then the latter shall prevail, over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. In State of Punjab and another vs. Shamlal Murari & Anr., AIR 1976 SC 1177, the principle of law, laid down, was to the effect, that procedure, is, in the ultimate handmaid of justice, and not its mistress and is meant to advance its cause, and not to obstruct the same. The procedural Rule, therefore, has to be liberally construed, and care must be taken, that so strict interpretation be not placed thereon, whereby, technicality may tend to triumph over justice. It has to be kept in mind, that an overly strict construction of procedural provisions, may result in the stifling of material evidence, of a party, even if, for adequate reasons, which may be beyond its control. We must always remember that procedural law, is not an obstruction, but an aid to justice. Procedural prescriptions are the hand-maid, and not the mistress, a lubricant, not a resistant, in the administration of justice. If the breach can be corrected, without injury to the just disposal of a case, regulatory requirement should not be enthroned into a dominant desideratum. The Courts and the quasi-Judicial Tribunals, have been set up, with the sole purpose of dispensing justice, and not to wreck the end result, on technicalities.
13. No doubt, there was negligence, on the part of the Counsel for Opposite Party No.1, as he did not confirm the correct date (19.08.2013), which was given, in the complaint, by the District Forum, for the purpose aforesaid, and, blindly relied upon the wrong date, allegedly noted by his Clerk. Since, the Counsel did not take the requisite measures, referred to above, negligence was attributable to him. It is settled principle of law, that for the negligence or inadvertence of the Counsel, the party should not suffer. In our considered opinion, an opportunity should be afforded to Opposite Party No.1, for filing written version and evidence, so that the complaint could be decided, on merits, and the rights of the Parties are determined by one Forum finally one way or the other. In this view of the matter, the order impugned is liable to be set aside. No doubt, for, whatsoever, the reason may be, by not filing the written version, alongwith evidence, by way of affidavit, Opposite Party No.1/Revision Petitioner, certainly caused delay, in the disposal of the complaint, on merits.
14. According to Section 13 (3A) of the Act, every complaint is required to be decided, within three months, from the date of service of the Opposite Party(s), except the one, in which the goods are required to be sent to the Laboratory for examination. In that event, the complaint is required to be decided, within a period of 5 months, from the date of service of the Opposite Party(s). The complaint was filed, in the District Forum, on 15.04.2013. A period of three months has already lapsed, much earlier. The Revision Petitioner, is, thus, required to be burdened with costs, to meet the ends of justice.
15. No other point, was urged, by the Counsel for the Revision-Petitioner and respondent no.1.
16. For the reasons recorded above, the Revision- Petition is accepted. The order dated 19.08.2013, rendered by the District Forum, is set aside, subject to payment of costs of Rs.5,000/-, by the Revision Petitioner/Opposite Party No.1, to the complainant/ respondent no.1. The District Forum shall grant only one date to Opposite Party No.1, for filing written reply, alongwith evidence, by way of affidavit, and, thereafter, decide the complaint, on merits, in accordance with the provisions of law. The payment of costs to the complainant/respondent no.1, shall be a condition precedent. In other words, the payment of costs, shall be made, before filing written reply, alongwith evidence, by way of affidavit(s).
17. The parties are directed to appear, before District Forum (II) on 23.10.2013, at 10.30 A.M., for further proceedings.
18. The District Forum record, alongwith a certified copy of the order, be sent back, to it, immediately, so as to reach there, well before the date and time fixed i.e. 23.10.2013, at 10.30 A.M.
19. Certified Copies of this order, be sent to the parties, free of charge.
20. The Revision Petition file be consigned to the Record Room, after due completion.
Pronounced.
10/10/2013 Sd/-
(JUSTICE SHAM SUNDER)(RETD) PRESIDENT Sd/- (DEV RAJ) MEMBER Rg