State Consumer Disputes Redressal Commission
1. Hardesh Goyal vs 1. M/S Cellcast Interactive India Pvt. ... on 12 February, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 342 of 2012 Date of Institution : 12.10.2012 Date of Decision : 12.02.2013 1. Hardesh Goyal s/o Late Sh. H.R. Goyal, r/o 126, HIG, Sector 48C, Chandgiarh-1600147, mobile 9814093865 2. Munish Goyal, s/o Late Sh. T.L. Goyal c/o H & Care Incorp., SCF 404 (First Floor), Manimajra, U.T., Chandigarh, Mobile 9216295095 Appellants/complainants V e r s u s 1. M/s Cellcast Interactive India Pvt. Ltd, through its MD, 4th Floor, Alfa Vista Tower 2, 1406/15, Chincholi Bunder, Behind Inorbit Mall, Malad (W), Mumbai-400064, Maharashtra 2. M/s MY TV Channel, through its MD, 1/2 Ramsa Tower, Adajan Patiya, Rander, Dhabkar Circle, Adajan Road, Surat. (Service dispensed with vide order dated 22.01.2013) 3. Telecom Regulatory Authority of India, through Transparency Officer, TRAI, Shri R.K. Mishra, Pr. Advisor (Admn. & RE) Mahanagar Doorsanchar Bhawan, Jawaharlal Nehru Marg, Old Minto Road, New Delhi-110002. (Service dispensed with vide order dated 22.01.2013) 4. Ministry of Information and Broadcasting, through its Secretary, R.No.655, A Wing, Shastri Bhawan, New Delhi. (Service dispensed with vide order dated 22.01.2013) 5. IDEA, having its main office at 5th Floor, Windsor, CST Road, Kalina, SantaCruz (E), Mumbai-400098, through its Chairman. 6. TATA Teleservices Ltd., having Registered Office, Jeevan Bharati Tower I, 10th Floor, 124, Connaught Circus, New Delhi-110001, through its Chairman. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Hardesh Goyal, appellant No.1, in person, and on behalf of appellant No.2.
Sh. Barjinder Kaushik, Advocate for respondent no.1.
Service of Respondents No. 2, 3and 4, dispensed with vide order dated 22.01.2013.
Sh. Vishal Gupta, Advocate for respondent no.5.
Sh. Mandeep Sharma, Advocate for respondent no.6.
PER JUSTICE SHAM SUNDER, (RETD.), PRESIDENT This appeal is directed against the order dated 12.09.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed the Consumer Complaint No.385 of 2012, for non-prosecution.
2. The facts, in brief, are that the complainants participated in the TV Programme Bolly Wood Bonanza organized by Opposite Parties No.1 and 2, through mobile services of Opposite Parties No. 5 and 6. Being allured by the projections of Opposite Parties No.1 and 2, regarding distribution of prizes of thousands/lacs of rupees, on answering the simple questions, like recognizing the popular film actors, shown on the T.V., after dialing 5664468, from the mobile phone, the complainants, on 31.03.2012, between 11.00 P.M. to 12.00 P.M., participated in the aforesaid show of Opposite Parties No.1 and 2, on TV. The picture photo which was to be recognized was of the film actress Kajol. However, the complainants, recognized her, and answered it, through their mobile phones, on the aforesaid number. The complainants lost Rs.12/-, within a minute, for answering the above correct answer, but the said answer was shown to be wrong, by Opposite Parties No.1 and 2 on the T.V. It was stated that, in this way, Opposite Parties No.1 and 2, in connivance with Opposite Parties No.5 and 6 (being the telephone service Providers), were not actually distributing the prizes aforesaid, but, on the other hand, befooling the genuine consumers, by showing the correct answers, given by them, as wrong answers, just to gain the money, received by them, via telephone calls, made to them, by the consumers, who participated in their aforesaid programme. It was further stated that Opposite Parties No.3 and 4, being the Competent Authorities, were responsible to keep a check, on Opposite Parties No.1 and 2, for the aforesaid unfair trade practice, but they failed to do so. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, 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 Opposite Parties No.1 and 2, to stop airing the aforesaid programmes on the TV Channels; Opposite Parties No.5 and 6, to intimate their customers, in advance, about the rate of calls, before executing any agreement with Opposite Parties No.1 and 2, with regard to programmes aforesaid; and pay compensation, in the sum of Rs. 50,000/-, for mental agony and physical harassment, caused to the complainants.
3. Opposite Parties No.5 and 6, only filed separate applications, for dismissal of the complaint. In the applications, by placing reliance on the provisions of Section 7-B of the Indian Telegraphic Act 1885, it was stated that all the services related to telephone, were subject to Telegraph Rules, and there being a special remedy, provided in Section 7-B of Indian Telegraph Act, regarding disputes with regard to the same, and, thus, the Jurisdiction of the District Fora was barred. It was further stated that, under these circumstances, the Consumer Complaint was not maintainable and was liable to be dismissed.
4. On 12.09.2012, when the case was fixed for reply to the applications of Opposite Parties No.5 and 6, none put in appearance, on behalf of the complainants, as a result whereof, the complaint was dismissed, for-non prosecution.
5. Feeling aggrieved, the instant appeal, was filed by the appellants/complainants.
6. Service of respondents No.2, 3 and 4, which were Opposite Parties No.2, 3 and 4, was dispensed with vide order dated 22.01.2013, as they were proceeded against exparte, in the District Forum.
7. We have heard Hardesh Goyal, appellant No.1, in person, and on behalf of appellant No.2, Counsel for respondents no.1, 5 and 6, and have gone through the record of the case, carefully.
8. Sh. Hardesh Goyal, appellant No.1, submitted that the complaint was adjourned to various dates, for filing reply and evidence, by the Opposite Parties. He further submitted that due to non-filing of reply and evidence, Opposite Parties no.2, 3 and 4, were proceeded against exparte, by 30.08.2012. He further submitted that on 30.08.2012, he was present, in the District Forum, but none appeared, on behalf of the Opposite Parties, and, he was asked to come again, in the afternoon or the next day, for noting down the next date of hearing. He further submitted that, in the meanwhile, he got a severe right eye problem, in an accident, and was totally bedridden and could not appear on 12.09.2012, before the District Forum, and it dismissed the complaint, for non-prosecution. He further submitted that the absence of the complainants, on the date fixed, was neither intentional, nor deliberate, but for the reasons, aforesaid. He further submitted that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to the appellants/complainants, as in that event, they would be condemned unheard. It was further submitted that, thus, the order of the District Forum, being illegal, is liable to be set aside.
9. On the other hand, the Counsel for respondents No.1, 5 and 6, submitted that the absence of the complainants or their Counsel, on the date fixed i.e. 12.09.2012, was intentional and deliberate, as no documentary evidence, was produced by them, for their non- appearance on that date . They further submitted that, thus, the order of the District Forum, being legal and valid, is liable to be upheld.
10. After giving our thoughtful consideration, to the contentions, advanced by appellant no.1, the Counsel for respondents no.1, 5 and 6, and, on going through the record, we are of the considered opinion, that the appeal deserves to be accepted, and the case is liable to be remanded back, for deciding the same, in accordance with law, for the reasons, to be recorded hereinafter. As stated above, the complaint was, in the first instance, put up before the District Forum, on 19.07.2012, and notice was issued to the Opposite Parties, for 13.08.2012. It is evident from the record, that, on 13.08.2012, Counsel for Opposite Parties No.1, 5 and 6, put in appearance, and filed their vakalatnama, whereas, Opposite Party no.3, was proceeded against exparte, as none appeared on its behalf, despite service. No report of service of Opposite Parties No.2 and 4, was received by 13.08.2012. Thereafter, the case was adjourned to 30.08.2012, for filing of reply and evidence on behalf of Opposite Parties No.1, 5 and 6, as also for awaiting the service of Opposite Parties No. 2 and 4. On 30.08.2012, none put in appearance, on behalf of Opposite Parties No.2 and 4, as a result whereof, they were proceeded against exparte. Reply and evidence was not filed by Opposite Parties No.1, 5 and 6, whereas, an application for dismissal of the complaint, was moved by Opposite Party No.6. The complaint was adjourned to 12.09.2012, for filing reply by the complainants, to the application of Opposite Party No.6, as also for reply and evidence of Opposite Party No.5. On 12.09.2012, none put in appearance, on behalf of the complainants, as a result whereof, the complaint was dismissed, for-non prosecution. However, on the same day i.e. on 12.09.2012, Opposite Party No.5, also moved an application, for dismissal of the complaint, on the same grounds, as were taken up by Opposite Party No.6, in its application, filed on 30.08.2012. It means that by 12.09.2012, reply and evidence, was not filed by Opposite Parties, No.1, 5 and 6, whereas Opposite Parties No.2, 3 and 4 were already proceeded against exparte. Only reply to the applications, aforesaid, moved by Opposite Parties No.5 and 6, was required to be filed by the complainants. Thus, the complaint was, at the initial stage, when the complainants, or their Counsel, did not put in appearance, and it was dismissed for non prosecution.
11. It is settled principle of law, that every lis should normally be decided, on merits, than by resorting to hyper- technicalities. When the 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. Since, the complaint was fixed for 12.09.2012, reply and evidence, which was not filed by Opposite Parties, No.1, 5 and 6, and only reply to the applications aforesaid, was to be filed by the complainants, the District Forum could adjourn the complaint, for the purpose, to some other date, but it apparently resorted to shortcut method, by dismissing the same, for non-prosecution. No doubt, there was also negligence, on the part of complainants. In our considered opinion, an opportunity should be afforded to the complainants, to prosecute the complaint, so that the same could be decided, on merits, and the rights of the Parties are finally determined by one Forum, one way or the other. In this view of the matter, the order impugned is liable to be set aside, and the case deserves to be remanded back, for further proceeding, in accordance with the provisions of the Act.
12. On account of the inadvertence or negligence of the complainants, 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 appearance of the Opposite Parties, 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 appearance of the Opposite Parties. The complaint had been admitted on 02.07.2012. A period of more than three months has already lapsed much earlier. For causing delay, in the disposal of the complaint, on merits, the appellants/complainants are required to be burdened with costs.
13. 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 for non- prosecution, and decide the same, in accordance with the provisions of the Act. The appellants/complainants are burdened with costs of Rs.2,000/-, for causing delay, in the disposal of complaint on merits. The payment of costs, aforesaid, to Opposite Parties No.1, 5 and 6, shall be a condition precedent.
14. The Parties are directed to appear, before District Forum (I) on 21.02.2013, at 10.30 A.M., for further proceedings.
15. 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.
16. Certified Copies of this order, be sent to the parties, free of charge.
17. The appeal file be consigned to the Record Room, after due completion.
Pronounced.
12.02.2013 Sd/-
(Justice Sham Sunder)(Retd) President Sd/- (Neena Sandhu) Member Rg