State Consumer Disputes Redressal Commission
Sh. Harjeet Singh. vs Sh. Arvind Kumar Gupta. & Anr. on 1 June, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 289/2016
Date of Presentation: 02.09.2016
Order Reserved On : 10.04.2017
Date of Order : 01.06.2017
......
Shri Harjeet Singh Parking Contractor Saproon Parking
near Gurudwara Sahib Saproon (Solan) H.P.
...... Appellant/Opposite Party No.1
Versus
1. Shri Arvind Kumar Gupta s/o Shri Madan Gopal
Resident of House No. 297 Chowk Bazar Subhathu
Tehsil and District Solan H.P.
......Respondent/Complainant
2. Executive Officer Municipal Council Solan
District Solan H.P.
......Respondent/Opposite Party No.2
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Manohar Lal Sharma Advocate.
For Respondent No.1: Ex-parte.
For Respondent No.2: Mr. M.S. Kapoor Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 1 Whether reporters of the local papers may be allowed to see the order? Yes. Harjeet Singh Versus Arvind Kumar Gupta & Anr. (F.A. No.289/2016) 12.04.2016 passed by Learned District Forum in consumer complaint No.118/2015 title Arvind Kumar Gupta Versus Harjeet Singh & Anr.
Brief facts of Case:
2. Complainant namely Arvind Kumar Gupta filed consumer complaint under section 12 of Consumer Protection Act 1986 against the opposite parties pleaded therein that he parked his car No. HP-03-4215 at Saproon Parking near Gurudwara Solan on dated 27.07.2015 under receipt No.1451 annexure 1. It is pleaded that vehicle was parked from 01:40PM to 6:20PM. It is pleaded that attendant at parking demanded Rs.100/-as parking charges. It is pleaded that on the protest of complainant Rs.40/-were charged. It is pleaded that when complainant asked the opposite party No.1 to show rate list prescribed by competent authority then opposite party No.1 laughed at him. It is pleaded that thereafter complainant received parking rates prescribed by Nagar Parishad. It is pleaded that as per information received by complainant rates for parking were fixed as Rs.20/- for 4 hours and Rs.30/- for 6 hours. It is pleaded that thereafter he filed complaint before Executive Officer Nagar Parishad Solan on dated 31.8.2015 annexure-3 but no action was taken by opposite party No.2. Complainant sought relief on account of overcharging, humiliation, mental agony including litigation charges as District Forum thinks fit.2
Harjeet Singh Versus Arvind Kumar Gupta & Anr. (F.A. No.289/2016)
3. Opposite party No.1 i.e. Parking Contractor was proceeded ex-parte by learned District Forum on dated 16.01.2016.
4. Version filed on behalf of opposite party No.2 pleaded therein that complaint is not maintainable and complainant has no cause of action. It is pleaded that after receiving the complaint on dated 31.08.2015 letter was issued to opposite party No.1 i.e. Concerned parking contractor and he failed to give any response. It is pleaded that reminder was also sent and matter is under consideration of opposite party No.2 i.e. Executive Officer Nagar Prishad Solan (H.P.).
5. Learned District Forum ordered opposite party No.1 namely Harjeet Singh Parking Contractor Saproon to refund Rs.10/- (Ten) to complainant alongwith interest @ 9% per annum from the date of complaint till payment. In addition learned District Forum also ordered opposite party No.1 i.e. parking contractor to pay Rs.1000/- (One thousand) as compensation for mental harassment. In addition learned District Forum further ordered opposite party No.1 i.e. parking contactor to pay amount of Rs.1000/- (One thousand) on account of litigation costs. In addition learned District Forum ordered that opposite party No.1 i.e. parking contractor would pay a sum of Rs.3000/- (Three thousand) on account of punitive damages.
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Harjeet Singh Versus Arvind Kumar Gupta & Anr. (F.A. No.289/2016)
6. Feeling aggrieved against order passed by Learned District Forum opposite party No.1 Shri Harjeet Singh Parking Contractor filed present appeal before State Commission. None appeared before State Commission on behalf of co- respondent No.1 i.e. Arvind Kumar complainant and co- respondent No.1 Arvind Kumar complainant was proceeded ex-parte vide order dated 16.03.2017.
7. We have heard learned advocates appearing on behalf of appellant and co-respondent No.2 and we have also perused entire record carefully.
8. Following points arises for determination in present appeal.
1. Whether learned District Forum committed material procedural irregularity by way of treating pleadings of parties i.e. complaint and version filed by the parties as evidence of the parties under section 13(4) of Consumer Protection Act 1986 for adjudication of consumer disputes and whether Shri Harjeet Singh Parking Contractor was not properly served in complaint before learned District Forum.
2. Final order.
Findings upon point No.1 with reasons:
9. After perusal of complaint and after perusal of version learned District Forum came to the conclusion that opposite party No.2 has disputed the allegations contained in 4 Harjeet Singh Versus Arvind Kumar Gupta & Anr. (F.A. No.289/2016) the complaint. Learned District Forum decided to obtain the evidence of the parties under section 13(4) of Consumer Protection Act 1986. Learned District Forum directed the parties to adduce evidence for adjudication of consumer dispute.
10. It is proved on record that on dated 17.02.2016 learned advocate who appeared on behalf of complainant stated before learned District Forum that his complaint and documents annexures C-1 to C-3 be treated as evidence on behalf of complainant and closed the evidence. Similarly it is also proved on record that on dated 11.03.2016 learned advocate who appeared on behalf of opposite party No.2 stated before learned District Forum that version filed by opposite party No.2 and documents annexures OP2-1 and OP2-2 be treated as evidence of opposite party No.2 and closed the evidence.
11. It is held that complaint and version filed by the parties are pleadings of the parties and could not be treated as evidence under section 13 (4) of Consumer Protection Act 1986 for adjudication of consumer disputes inter se parties under Consumer Protection Act 1986. It is held that pleadings of parties and evidence of parties relating to disputed facts are entirely two different concepts under law.
12. Complaint is defined under section 2(c) of Consumer Protection Act 1986 as allegation in writing made 5 Harjeet Singh Versus Arvind Kumar Gupta & Anr. (F.A. No.289/2016) by complainant. It is held that complaint is allegation in writing made by complainant and could not be treated as evidence of complainant under section 13(4) of Consumer Protection Act 1986 for adjudication of consumer disputes.
13. As per section 13(2)(b) of the Consumer Protection Act 1986 where opposite party on receipt of copy of complaint denies or disputes the allegations contained in complaint, District Forum would proceed to settle the consumer disputes on the basis of evidence brought to its notice by complainant and opposite party.
14. It is held that evidence can be adduced by the parties strictly as per section 13(4) of Consumer Protection Act 1986 for deciding consumer disputes. Section 13(4) of Consumer Protection Act 1986 is quoted in toto:-
(4) For the purposes of this section, the District Forum shall have the same powers as are vested in a civil court under Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:--
(i) Summoning and enforcing the attendance of any defendant or witness and examining the witness on oath.
(ii) Discovery and production of any document or other material object producible as evidence.
(iii) Reception of evidence on affidavits.
(iv) Requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source.
(v) Issuing of any commission for the examination of any witness.
(vi) Any other matter which may be prescribed.6
Harjeet Singh Versus Arvind Kumar Gupta & Anr. (F.A. No.289/2016)
15. It is held that learned District Forum has committed material procedural irregularity by way of treating complaint and version of parties as evidence of the parties under section 13(4) of Consumer Protection Act 1986 for adjudicating consumer disputes of parties. It is held that it is not expedient in the ends of justice to dispose of appeal on merits unless material procedural irregularity is not rectified.
16. We have also perused the mode of service effected upon opposite party No.1 Harjeet Singh Parking Contractor. It is observed by State Commission that Shri Harjeet Singh was served by way of dasti summon. We have also carefully perused report upon dasti summon dated 15.01.2016. As per record dasti summon upon opposite party No.1 was effected by complainant personally without assistance of process server of District Forum. It is held that service of dasti summon should be effected through assistance of process server of District Forum. In the absence of affidavit of process server in support of summon report it is not expedient in the ends of justice to rely upon the report of service personally effected by complainant upon opposite party No.1. Even it is proved on record that summon was not given to Harjeet Singh Parking Contractor personally but summon was received by Swaran Mehta at parking site. It is also observed by State Commission that complainant himself has submitted service report upon summon relating to service of opposite party 7 Harjeet Singh Versus Arvind Kumar Gupta & Anr. (F.A. No.289/2016) No.1. We have with naked eye perused signatures of serving person and it is observed by State Commission that signatures of complainant and serving person of summon tally each other.
17. It is held that that complainant was not legally competent to serve notice himself personally upon opposite party No.1 under Consumer Protection Act 1986 without assistance of process server.
18. As per law notice of dasti summon should be served through process server of District Forum only. As per Consumer Protection Act 1986 service of notice upon opposite party should be effected as per section 28A(2) of Consumer Protection Act 1986. Operative part of section 28A(2) of Consumer Protection Act 1986 is quoted below:
(1) All notices required by this Act to be served shall be served in the manner hereinafter mentioned in sub-section (2) The service of notices may be made by delivering or transmitting a copy thereof by registered post acknowledgement due addressed to opposite party against whom complaint is made or to the complainant by speed post or by such courier service as are approved by the District Forum, the State Commission or the National Commission, as the case may be, or by any other means of transmission of document (including FAX message) .
19. It is held that word service of notice may be made by delivering means delivering of notice through process server of learned District Forum and does not mean delivery 8 Harjeet Singh Versus Arvind Kumar Gupta & Anr. (F.A. No.289/2016) of notice by complainant himself personally. It is held that complainant is interested person and service matter of opposite party cannot be given to interested person exclusively excluding role of process server of District Forum totally. In view of above stated facts it is held that learned District Forum had committed material procedural irregularity by way of proceeding ex-parte against opposite party No.1 Harjeet Singh simply on the report of complainant himself. Point No.1 is answered accordingly. Point No.2: Final Order
20. In view of findings upon point No.1 above appeal is allowed and order of learned District Forum dated 12.04.2016 is set aside. Order dated 16.01.2016 whereby opposite party No.1 was proceeded ex-parte is also set aside. Complaint is remanded back to the learned District Forum. Learned District Forum will receive version of opposite party No.1 and thereafter will receive evidence of parties relating to controversial facts strictly as per section 13(4)(iii) of Consumer Protection Act 1986 by way of affidavits. After receiving the evidence of the parties by way of affidavits learned District Forum will decide the complaint afresh strictly in accordance with law. Learned District Forum will dispose of complaint expeditiously within two months after receipt of file. Be listed before learned District Forum camp at 9 Harjeet Singh Versus Arvind Kumar Gupta & Anr. (F.A. No.289/2016) Solan H.P. Statement of learned advocate appeared on behalf of complainant dated 17.02.2016 and statement of advocate appeared on behalf of opposite party No.2 dated 11.03.2016 will form part and parcel of order. Service report of opposite party No.1 filed by complainant personally dated 15.01.2016 will also form part and parcel of order. Observations will not effect merits of the case in any manner. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 01.06.2017.
GUPTA} 10