State Consumer Disputes Redressal Commission
Vinod Kumar vs The National Consumer Awareness Group ... on 24 May, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 88 of 2013 Date of Institution : 27.02.2013 Date of Decision : 24.05.2013 Vinod Kumar son of Shri Parmanand, Resident of House No.436, Harmilap Nagar, Baltana (District Mohali). Appellant/complainant V e r s u s 1. The National Consumer Awareness Group Society (Regd.), through its Chairman Lt. Col. P.J.S. Mehta, having its office at SCO-528, IInd Floor, Sector 70, Mohali (Pb.). 2. Sh. Jasbir Singh Sahi, General Secretary, The National Consumer Awareness Group Society (Regd.), SCO-528, (2nd Floor), Sector 70, Mohali (Pb.). ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh.Neeraj Sharma, Advocate for the appellant.
Respondents exparte.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 23.01.2013, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed Consumer Complaint No.812 of 2012, in default of appearance of the complainant (now appellant).
2. The facts, in brief, are that, in the year 2005, the Opposite Parties, came forward, in the general public, with a proposal to establish a house building unit, in some part of land at Mohali (Punjab). The complainant, with a view to purchase a residential flat-3BHK, category B, applied to the Opposite Parties, and paid a sum of Rs.1,50,000/-, on account of the cost of land, to be purchased, by them (Opposite Parties), through cheque no.091340 dated 20.08.2005, vide receipt no.401 dated 28.08.2005. Membership fee, to the tune of Rs.1,000/-, was also paid by the complainant, to the Opposite Parties, whereafter, he was accorded membership certificate no.289 dated 28.08.2005. It was stated that, it was assured by the Opposite Parties, that the land, on which the flats were to be built, had been finalized. It was further stated that the Opposite Parties, intimated the complainant, that the payment plan, towards the price of the said flat, would be construction linked, the schedule of which was to be provided, at the time of execution of Agreement. It was further stated that, thereafter, the complainant made a number of visits, to the Opposite Parties, to know about the status of project, and, when he would get the physical possession of flat, but they lingered on the matter, on one pretext or the other. It was further stated that the Opposite Parties, in the meeting, held with the members of the Society, in the month of June, 2009, assured that the construction of housing units, would be started soon, but they failed to do so, even after the expiry of seven years, from the date of making payment aforesaid. Left with no other option, the complainant, sought refund of the amount, deposited by him, but the Opposite Parties, flatly refused to do so. It was further stated that the Opposite Parties, fleeced the innocent customers, and collected huge money, by making false assurances, with regard to providing housing units/flats, but did not provide the same. It was further stated that the aforesaid acts of the Opposite Parties, 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.
3. The complaint was admitted, for the first time, by the District Forum, vide order dated 17.12.2012 and notice was ordered to be issued to the Opposite Parties, for 23.01.2013. On 23.01.2013, despite calling the complaint several times, none entered appearance, on behalf of the complainant, as a result whereof, the same (complaint) was dismissed, in default of his appearance, at 3.20 P.M., by the District Forum.
4. Feeling aggrieved, the instant appeal, was filed by the appellant/complainant.
5. Despite service, through affixation, neither any authorized representative, on behalf of respondent no.1, nor respondent no.2, or his authorized representative, put in appearance, till 2.55 P.M., in this Commission, as a result whereof, they were proceeded against exparte, on 13.05.2013.
6. We have heard the Counsel for the appellant/complainant, and have gone through the record of the case, carefully.
7. The Counsel for the appellant/complainant, submitted that, since, on 23.01.2013, Sh. Amandeep Bindra (the main Counsel) in the complaint case, got stuck, in the cases, fixed before the District Courts, at Panchkula, he (main Counsel), requested him (Shri Neeraj Sharma, Counsel in the present appeal), to put in appearance, on his behalf, in the District Forum, on the date fixed i.e. 23.01.2013. He further submitted that he (Shri Neeraj Sharma, Advocate), accordingly, reached the District Forum, whereupon, it was transpired that the complaint case was passed over. He further submitted that, at around 1.00 P.M., he (Neeraj Sharma, Advocate), became unwell and left the District Forum, for medical checkup. He further submitted that, the Doctor advised him rest, and he straightway went back to his house. He further submitted that, on 24.01.2013, when the main Counsel (Sh. Amandeep Bindra), visited the District Forum, he came to know, that the complaint case had already been dismissed, for want of prosecution, on 23.01.2013. He further submitted that the District Forum, however, did not grant even a single opportunity to the complainant, and, it straightway, dismissed the complaint, in default of his appearance. He further submitted that the absence of the complainant or his Counsel, on 23.01.2013, was neither intentional, nor deliberate, but for the reasons, aforesaid. It was further stated that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to the appellant/complainant, as, in that event, he would be condemned unheard. It was further stated that, thus, the order of the District Forum, being illegal, is liable to be set aside.
8. After giving our thoughtful consideration, to the contentions, referred to above, and, on going through the record, we are of the considered opinion, that the appeal deserves to be accepted, for the reasons, to be recorded hereinafter. As stated above, the complaint was, for the first time, admitted by the District Forum, vide order dated 17.12.2012 and notice was ordered to be issued to the Opposite Parties, for 23.01.2013. Perusal of the record of the District Forum, reveals that, summons sent to the office address of Opposite Party No.1, for its service, was received back, for want of correct address, whereas, the residential premises of Lt. Col. P.J.S. Mehta, Chairman of Opposite Party No.1, as also the office of Sh. Jasbir Singh Sahi, General Secretary/Opposite Party No.2, were found to be locked, by the Process Server. The complaint was, thus, at the initial stage, on 23.01.2013, when no effective proceedings were required to be conducted, as it had only been adjourned to that date, for the service of the Opposite Parties, which, however, could not be effected, for the reasons, referred to above. Since, on 23.01.2013, no effective proceedings were required to be conducted, in the complaint, the District Forum could adjourn the same (complaint), to some other date, for the purpose, but it apparently resorted to shortcut method by dismissing the same, in default of appearance of the complainant (now appellant), at the initial stage only.
9. No doubt, there was negligence, on the part of the main Counsel for the complainant, as it was required of him, to reach the District Forum, when the complaint was called, on the date fixed, i.e. on 23.01.2013, and, if he was got stuck, in the cases, fixed before the District Courts, at Panchkula, it was required of him, to make sure, that the Proxy Counsel, whom he had requested to appear, before the District Forum, with a request to keep the case pending, till he came back, must have put in appearance positively, but he failed to do so. Since, he 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. Every lis should normally be decided, on merits, than by resorting to hyper-technicalities. When hyper-technicalities, and 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. Therefore, in our considered opinion, an opportunity should be afforded to the appellant/complainant, to pursue the complaint, so that the same 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.
10. On account of the inadvertence or negligence of the complainant or his Counsel, the delay in the disposal of the complaint, on merits, was caused. 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(ies), 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(ies). The complaint was instituted on 11.12.2012. A period of three months, has already lapsed. For causing delay, in the disposal of complaint, on merits, the appellant/ complainant, is required to be burdened with costs.
11. For the reasons recorded above, the appeal is accepted. The order impugned is set aside. The complaint is remanded back to the District Forum, with a direction to restore the same, to its original number, proceed further, from the stage, at which, it was dismissed in default of appearance of the complainant, and decide the same, on merits, in accordance with the provisions of the Act. However, the appellant/ complainant is burdened with costs of Rs.3000/-, for causing delay, in the disposal of complaint, on merits. The costs be deposited with the Consumer Legal Aid Account No.32892854721, State Bank of India, Sector 7, Madhya Marg, Chandigarh, in favour of the Secretary, State Consumer Disputes Redressal Commission, U.T., Chandigarh.
12. The Parties are directed to appear, before the District Forum (I) on 31.05.2013 (Friday), at 10.30 A.M., for further proceedings.
13. The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date and time fixed i.e. 31.05.2013 (Friday), at 10.30 A.M.
14. Certified copies of this order, be sent to the parties, free of charge.
15. The appeal file be consigned to the Record Room, after due completion.
Pronounced.
May 24, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg