National Consumer Disputes Redressal Commission, New Delhi

Ajit Bharihoke, Presiding Member and Mrs Rekha Gupta, Member

Pawan Shukla – Petitioner

Versus

Mirkhana Engineering Pvt Ltd & Anr – Respondents

Revision Petition No. 287 & 288 of 2016                                                   Decided on 11.02.2016

(Against the Order dtd 16.09.2015 in Appeal No. 565 of 2010 of the State Commission, Delhi)

Consumer Protection Act, 1986 – Sections 15, 17, 19 and 21 – Automobile – Manufacturing defect – District Forum ignoring the fact that even before 30 days period of purported service of notice had expired, proceeded ex-parte and thereafter hurriedly decided consumer complaint after seeking ex-parte evidence from Complainant – Despite alleged service, none of OPs appeared on date of hearing – This circumstance raises strong doubt about service of notice – Proceedings before District Forum have been conducted in an unfair manner – No infirmity in order of State Commission remanding matter back and directing Complainant to deposit amount received by him in execution proceedings with District Forum. (Paras 10 to 12) – Revision Petition dismissed.

Important Point

Complaint cannot be disposed of in a hurried manner without waiting for the prescribed period of service of notice to expire.

Order

1.  By this order, we propose to dispose of above-noted Revision Petitions arising out of the impugned order of the State Commission, Delhi dated 16 September 2015 in first appeal Nos. 680/2010 and 565/2010 preferred by the respective OPs.

2.  Briefly stated, facts relevant for the disposal of the above-noted Revision Petitions are that the Petitioner/Complainant, Pawan Shukla filed a consumer complaint against the Respondents - Tata Motors Ltd and its authorized dealer - Mirkhana Engineering Pvt Ltd, alleging deficiency in service on the part of the OPs i.e. the OPs sold him a Tata Indigo car, which had inherent manufacturing defects.

3.  The District Forum, New Delhi after admission hearing on 15th April 2010 ordered as under: - 

“Present: Complainant. Heard, admitted and issued Dasti notice to OPs for 11.05.2010.”

4.  On 11 May, 2010, the OPs were proceeded ex-parte. The relevant order of the District Forum is reproduced as under:-

“Present: Complainant. OPs not present despite service. Complainant filed his affidavit stating that the notice was duly served on the OPs. Be awaited.

At the end of cause list, none appeared on behalf of the OPs. Case repeatedly called out. OPs are proceeded against ex-parte. Fix 1.6.2010 for ex-parte evidence of Complainant.”

5. Thereafter, on the basis of the ex-parte evidence filed by the Complainant, the District Forum allowed the complaint and directed the OPs as under: -

“This Forum orders as follows:

1.  OPs will refund the price of the car i.e. Rs. 5,95,504 to the Complainant.

2.  On account of mental agony and harassment, OPs will pay Rs. 2,00,000 to the Complainant as compensation.

3.  OPs will pay Rs. 10,000 to the Complainant towards the cost of litigation.”

6.  Being aggrieved by the order of the District Forum, the OPs filed separate appeals challenging the order of the District Forum on the ground that the District Forum has committed an illegality by deciding the complaint against the OPs without ensuring service of notice of complaint on the OPs in order to enable them to defend the complaint.

7.  The State Commission, Delhi vide impugned order allowed the said appeals and remanded the matter back to the District Forum to decide the matter afresh after giving opportunity to the Respondents/OPs to contest the allegations in the complaint. This has led to filing of the Revision Petition.

8.  Learned counsel for the Petitioner, at the outset, has contended that he has no grievance against the remand of the case back to the District Forum. His only grievance is against the part of the order directing the Respondent/Complainant to deposit the entire amount, which he has realized in execution proceedings before the District Forum.

9.  Learned counsel for the Respondent - Mirkhana Engineering Pvt Ltd has argued in support of the impugned order. It is contended that in the instant case, the Petitioner has got the amount realized in the execution proceedings in unfair manner despite the stay granted by the State Commission and the stay order having been produced before the District Forum along-with the bank draft, but the District Forum in utter disregard of the stay order released the amount.

10.  We have considered the rival contentions and perused the record. In the instant case, the unfairness is writ large for the reason that despite the fact that Section 13(1)(a) provides for 30 days period for filing of written statement after the date of receipt of notice, the period of notice given vide proceedings dated 15.4.2010 was less than 30 days. The District Forum ignoring the fact that 30 days period after the purported service of notice had not expired, proceeded ex-parte and thereafter hurriedly decided the consumer complaint after seeking ex-parte evidence from the Complainant. Not only this, no notice through an independent process like by post or reputed courier was sent and strangely on the very first date, notices were ordered to be served Dasti by the Complainant. From the record, it appears that as per affidavit of service filed by the Complainant both the OPs were served. It is strange that despite alleged service, none of the OPs appeared on the date of hearing. This circumstance raises a strong doubt about the service of notice. From the above, one can safely infer that the proceedings before the District Forum have been conducted in an unfair manner. Therefore, we do not find any infirmity in the order of the State Commission remanding the matter back and directing the Complainant to deposit the amount received by him in execution proceedings with the District Forum.

11.  In view of the discussion above, we do not find any infirmity in the impugned order, which may call for interference in exercise of Revisional Jurisdiction. Both the Revision Petitions are dismissed. Complainant is directed to deposit the amount received by him in execution with the District Forum within 30 days, failing which the OPs shall have a right to execute this amount and the Complainant shall have to pay 12% interest on the said amount from the date of this order till the deposit in the District Forum.

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