National Consumer Disputes Redressal
Subhajit Sardar & Anr vs Chandra Dutta on 22 April, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 486 OF 2024 (Against the Order dated 02/03/2023 in Appeal No. A/243/2022 of the State Commission West Bengal) 1. SUBHAJIT SARDAR & ANR NASKARHAT,MADHYA PARA, RABINDRA PALLY, P.S. - KASBA KOLKATA WEST BENGAL 2. SAMIR SINGH 257, NASKARHAT, TAGORE PARK, BLOCK - I, P.S. KASBA, KOLKATA WEST BENGAL ...........Petitioner(s) Versus 1. CHANDRA DUTTA 275, NASKARHAT, P.S. - KASBA KOLKATA WEST BENGAL 2. TAPAS NASKAR NASKARHAT, MADHYA PARA, RABINDRA PALLY, P.S. KASBA, KOLKATA WEST BENGAL ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE KARUNA NAND BAJPAYEE,PRESIDING MEMBER
FOR THE PETITIONER : MR. ANAND PRAKASH, ADVOCATE
(IN PHYSICAL HEARING)
Dated : 22 April 2024 ORDER
1. This revision petition has been filed in challenge to the Order dated 02.03.2023 in Appeal No. 243 of 2022 of the State Commission West Bengal arising out of Order dated 30.12.2019 of the District Commission in Complaint no. 296 of 2019.
2. Learned counsel appearing for the petitioners furnishes his authorization to argue in the matter. Let the same be taken on record.
Heard the learned counsel appearing for the petitioners and have perused the record including inter alia the Order dated 30.12.2019 of the District Commission, the impugned Order dated 02.03.2023 of the State Commission, the application for condonation of delay in filing the petition and the memo. of petition.
3. The present petition has been filed with reported delay of 118 days. Learned counsel has drawn the attention of the Bench to the Order dated 18.08.2023 in SA No. 23 of 2023 which reads as follows:-
1. Learned counsel for the Petitioners seeks permission to withdraw its Second Appeal with liberty to file a Revision Petition on the same cause of action.
2. In the wake of the above submission made by the learned counsel for the Petitioners, the instant Second Appeal is dismissed as withdrawn with liberty to the learned counsel to take appropriate remedy as it may be so advised.
3. It may further be observed that while filing the Revision Petition if the Petitioners are so advised, the circumstances under which this Second Appeal is withdrawn shall be taken into consideration and it shall not come in the way of counting the period of limitation.
4. The Registry is requested to send a copy each of this Order to the parties in the Appeal and to their learned counsel as well as to the fora below within three days. The stenographer is requested to upload this Order on the website of this Commission within three days.
4. Submission is that in view of the observations made by this Commission in the afore-said Order there is no delay in filing the present petition and if there is any the same deserves to be condoned in the light of the specific observations made by the Commission.
5. In view of the observations as are apparent on the face of the record the delay, if any, stands condoned.
6. Learned counsel has been heard. At the very outset learned counsel has submitted that the appeal which was filed on the petitioners behalf in the State Commission has been dismissed on the point of limitation as it was presumed by the State Commission that the notice which was issued by the District Commission ought to be presumed as served. With that presumption in the backdrop the plea of the petitioners that it never received notice by the District Commission was not held tenable. It was pleaded on behalf of the petitioners / appellants that they had no knowledge about the proceedings of the District Commission and it was proceeded ex parte and it could acquire the knowledge of the Order of District Commission only when the execution proceedings were initiated and the warrants were issued. This plea was rejected by the State Commission on the basis of the presumption of service after the notice had been issued by the District Commission. Learned counsel has drawn the attention of the Bench to page 112 of the present petition which is the track consignment report relating to the notice that was issued on the petitioners by the District Commission. It has been shown that track report clearly mentions the fact that the item was returned with the remark "insufficient address". Submission is that even if it be believed that the address that was given was correct the fact remains that the postal department failed to trace the petitioners on the given address and rightly or wrongly the item remained undelivered because the officials of the postal department found the address as insufficient. Submission is that presumption of service can be validly made if there is no proof to the contrary. Record proves the fact that the item was returned with the remark "insufficient address". This proven fact cannot be replaced by way of raising any presumption which at any rate is only an inference by implication. Submission is that this track record which was very much available on record somehow has escaped the attention of the State Commission. Further submission is that in para 3 of the delay condonation application which was moved on behalf of the petitioners before the State Commission, the track consignment report submitted by the respondent was clearly referred to but somehow it remained unconsidered and this ommission eventually led to a fallacious inference of service, though there was none. Submission is that impugned Order suffers from an error apparent on the face of record.
7. Perused the track consignment report. It is not difficult to see that the track consignment report clearly mentions that the item had been returned with the remark 'insufficient address'. If that be so as is demonstrably manifest from the track report the impugned Order would stand vitiated by an error apparent on the face of record. The track consignment report has remained unconsidered and somehow appears to have escaped the attention of the State Commission.
8. At this stage when the Bench put a query to the learned counsel as to why it did not move a review application it has been submitted that if permission be granted it is ready to move a review application and is prepared to withdraw the petition.
With the aforesaid facts in the background it appears that an appropriate review application may be filed before the State Commission and the petitioners are permitted to do so whereby it may bring the attention of the State Commission to the facts as have been put forth before this Commission, specifically the track consignment report which shows that the item had been returned with the remark "insufficient address" and which obviously does not leave any occasion to raise any presumption about the service to the contrary. The petitioners are permitted to move appropriate review application before the State Commission within four weeks from today. If the same is moved within the afore-said period the State Commission shall issue notice to the other side and would proceed to decide the application after hearing both the sides.
Revision petition stands disposed of accordingly.
9. The Registry is requested to send a copy each of this Order to all parties in the petition and to the learned counsel for the petitioner. The stenographer is requested to upload this Order on the website of this Commission immediately.
..................................................J KARUNA NAND BAJPAYEE PRESIDING MEMBER