State Consumer Disputes Redressal Commission
Dell International Services India ... vs Hemaab Dogra on 26 August, 2019
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
First Appeal No. 160 of 2019
Date of institution : 25.03.2019
Date of decision : 26.08.2019
DELL INTERNATIONAL SERVICES INDIA PVT. LTD.,
DIVYASHREE GREENS, NO.12/1, 12/2A, 13/1A, VARTHURHOBLI,
CHALLAGHATTA VILLAGE, INNER RING ROAD,BANGALORE-560
071 THROUGH ITS AUTHORISED SIGNATORY.
.......Appellant- Opposite Party No.2
Versus
1. HEMAAB DOGRA S/O SHRI RAJESH DOGRA, R/O 13, TARA
ENCLAVE, CIRCULAR ROAD, AMRITSAR.
....Respondent No.1-Complainant
2. AHD COMMUNICATIONS, IST FLOOR, OPP. BUS STAND,
AMRITSAR THROUGH ITS PROP./PARTNER/PRINCIPAL
OFFICER.
....Respondent No.2-Opposite Party No.3
First Appeal against the order dated
30.10.2018 of the District Consumer
Disputes Redressal Forum, Amritsar.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
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 Present:-
For the appellant : Shri Sukaam Gupta, Advocate. For respondent No.1: Shri Sukhandeep Singh, Advocate. For respondent No.2: Ex parte.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The instant appeal has been preferred by opposite party No.2 against the order dated 30.10.2018 passed by District Consumer Disputes Redressal Forum, Amritsar (in short, "District Forum"), First Appeal No.160 of 2019 2 whereby the complaint filed by respondent no.1/complainant has been allowed ex parte.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
3. Brief facts for the disposal of the present appeal are to the effect that Hemaab Dogra, complainant, purchased one Laptop from opposite party No.1, vide Invoice No.10173452826 dated 20.6.2017 for US$ 1690.05, which was originally billed in the name of his uncle. The said laptop was manufactured by appellant/opposite party No.2 and opposite party No.3 is the Service Centre of the said product. The said product became non-functional and started giving problem specifically slow processing and heat up and also started indicating no power in September 2017. The complainant allegedly approached opposite party No.2 several times and requested for rectification of the defects but could not succeed. Opposite party No.2 had even changed some of the parts with a purpose to rectify the said defects in the said laptop but the problem always remained the same. Virtually the laptop became dysfunctional. Till the date of filing of the complaint the problem of overheating, power issue and sound in the laptop have not been solved, though it was purchased in a recent past and the problem had started within three months of its purchase. Virtually the said laptop has become useless for the complainant. Feeling aggrieved against the same and alleging mental tension, harassment etc. the complaint was filed before the District Forum claiming the following reliefs:- First Appeal No.160 of 2019 3
i) opposite parties be directed to set right the laptop of the complainant to his satisfaction or in the alternative to replace it with the new laptop of the same make and model or upgrade model of the same make or in the alternative to refund the amount of US$1690.05 or in equivalent Indian currency along with interest @ 12% per annum from 20.6.2017 till realization;
ii) opposite parties be also directed to pay compensation to the tune of `2 lakh along with litigation expenses to the tune of `25,000/-.
4. Opposite parties Nos.2 and 3 did not appear despite service and were proceeded against ex parte.
5. Opposite party No.1 was given up and was deleted from the array of parties, vide order dated 23.10.2018.
6. The complainant produced his ex parte evidence in support of his averments before the District Forum, which after going through the same and hearing learned counsel on his behalf, allowed the complaint, vide impugned order. Hence, this appeal has been preferred mainly on the ground that ex parte order has been passed without effecting any service upon the appellant/opposite party No.2 and, as such, it has been deprived of its valuable right.
7. We have heard learned counsel for the appellant as well as respondent No.1 and have carefully gone through the records of the case.
8. Admittedly the impugned order has been passed ex parte. A perusal of the record of the District Forum reveals that a letter was First Appeal No.160 of 2019 4 sent at the address given in the complaint. In fact the purchase was made from USA. Only office of DELL International Services India Private Limited, which is situated at Bangalore was made party. The said office did not appear as no details were available with the said office. Be that as it may but the fact remains that ex parte order was passed without any proper procedure nor the original party has been impleaded as opposite party in the complaint from which the complainant purchased the said laptop. Even the office address as mentioned in the Invoice/Bill has also not been given in the complaint. Otherwise also the case should not be decided on technicalities. Minimum principles of natural justice are required to be followed so that appropriate defence can be raised by the parties. It is settled principle of law, as laid down by the Hon'ble Supreme Court in "Bhagmal & Ors. v. Kunwar Lal",AIR 2010-SC-2991, that a party, which claims to have substantial right, which require adjudication by a Court of law, should not be denied the opportunity of hearing, by not setting aside the order on hyper-technical grounds.
9. In another case "Bhagwan Swaroop vs. Mool Chand" (1983) 2 SCC 132, Hon'ble Supreme Court held that court's approach should be oriented with a view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in court. A code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties.
10. In another case i.e. "Zee Learn Ltd. v. Keshava Murthy D.M." 2017 (1) CPR 658 (NC), the opposite party was ex parte First Appeal No.160 of 2019 5 before the District Forum and the Hon'ble National Commission directed the District Forum to decide the complaint after taking written statement of the opposite party on record and considering all the pleas raised by the parties.
11. The sum and substance is that a party who claims to have substantial right, which requires adjudication by the Court of law/Tribunal, should not be denied of the said opportunity by sticking on to hyper-technical objections. It is settled principle of law that cases should be decided on merit and not merely on technical grounds. Rules of procedure are handmade of justice and to do substantial justice.
12. In view of the peculiar facts and circumstances of the case, we do not want to go into further merits of the case. We set aside the impugned order passed by the District Forum since the opposite parties were not properly served and remand the case to the District Forum subject to payment of `25,000/- as costs by the appellant, out of which `20,000/- would be deposited in the Consumer Legal Aid Account of this Commission and `5,000/- would be paid to the complainant. The parties through their counsel are directed to appear before the District Forum on 23.9.2019. The appellant/opposite party No.2 shall file its reply as well as evidence/documents on or before the date fixed.
13. Record of the District Forum be returned immediately.
14. The appellant/opposite party No.2 had deposited a sum of `25,000/- at the time of filing of the appeal, out of which after deducting the sum of `20,000/- as cost, it be deposited in the First Appeal No.160 of 2019 6 Consumer Legal Aid Account of this Commission. The remaining amount of `5,000/-, as cost along with interest accrued on the total amount of `25,000/-, if any, be remitted to the District Forum. The District Forum shall further remit the sum of `5,000/- to the complainant and the amount of interest, if any, to appellant/opposite party No.2.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER August 26, 2019 Bansal