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Judgment
THIS appeal is directed against the order of the District Forum, Balasore in C.D. Case No. 6 of 1995. The opposite parties 1 and 2 in the said case are the appellants in this appeal. The respondent No. 1 in this appeal, as complainant, filed the aforesaid case alleging deficiency in service as well as alleging unfair trade practice on the part of the present appellant. His case is that on 30.11.94, he travelled in a bus belonging to appellant No. 1, opposite party No. 1, in which the appellant No. 2 was the conductor. He was made to pay Rs. 3/towards the bus fare for his journey from Balasore to Rasalpur and a ticket was issued to him indicating the date of journey, bus fare paid and the starting point and destination of the journey. According to the complainant, the distance between the two places which he was to cover by the bus is 16 kilometers the appropriate fare of which would be Rs. 2.88p. which being rounded up comes to Rs. 2.90 p. Taking of Rs. 0.10 p. in excess from him is illegal. Before the District Forum he has further alleged that when he complained about the excess fare, the present appellants abused him and did not take any action.
THE present appellants as opposite parties 1 and 2 respectively filed a version denying all the allegations made in the complaint petition. According to them, the complainant never travelled in the bus in question on the alleged date. It has also been denied that the present appellant No. 2 was the conductor of the bus. THEy stated that one Narendra Nath Ojha is the permanent conductor of the bus in question and the entire story on the basis of which the complainant has prayed for relief before the District Forum is false and fabricated. THEy further stated that the complainant is a person who was often travelling from Balasore to Rasalpur and requested for concessional rebate for his frequent journeys. THE said request having been fumed down by the present appellant No. 1, he bore a grudge and in order to satisfy his grudge has filed this false case having collected a ticket from some other source. It was also pleaded by the opposite parties that the ticket produced by the complainant is not used in their bus. Though separate versions were filed by the present appellants, the stand taken by them is almost identical. The District Forum believed the complainant''s case that he had travelled in the bus on the day in question and had paid Rs. 3/instead of Rs. 2.90 p. which according to the Forum was the appropriate fare. It, therefore, came to a conclusion that the present appellants are guilty of unfair trade practice and awarded a compensation of Rs. 200/fixing the liability against the present appellants jointly and severally. Hence this appeal.
The appellants have challenged the correctness of the award mainly on two grounds. The first ground taken in the memorandum of appeal is that the District Forum did not proceed under Order 9, Rule 8 of the Civil Procedure Code by dismissing the case for default on 10.1.96, the date on which the case was posted and on which date the complainant was absent. The second ground is that the District Forum accepted the evidence from the complainant on 11.1.96 behind the back of the present appellants though the case was neither posted to that date nor the District Forum gave opportunity to the present appellants for rebuttal of the evidence produced before the Forum on 11.1.96.
WE have thoroughly examined the records of the District Forum and heard both parties. It is not the correct proposition of law that in the absence of the complainant, the consumer dispute should have been dismissed for default. The complainant in the case before the District Forum has expressed his grievances in the complaint/ petition and had filed a xerox copy of the bus ticket which according to him is an evidence of unfair trade practice. Assuming that the complainant did not appear on the date of hearing, it is open to the Forum to dispose of the matter before it on the materials available on record. On such consideration it may be that the District Forum may grant redressal to the consumer or may refuse to grant any relief depending on what materials had been placed for consideration by either of the parties. In the present case, the District Forum in its order dated 10.1.96 recorded that the complainant is absent but the present appellants who were present were heard and the case was posted to 19.1.96 for judgment. On 10.1.96 the District Forum did not commit any irregularity or injustice in concluding the hearing of the case and posting the case to a future date for judgment. The second point urged by the appellants appears to be of some substance. As a matter of fact, the case was neither posted to 11.1.96 for any purpose whatsoever far less for receiving any further documents from the complainant. Thereafter, when the complainant produced the original bus ticket on 11.1.96 before the District Forum as recorded in the order-sheet of that date, it was certainly behind the back of the present appellants and in violation of the principle of natural justice. The District Forum should not have received any evidence whatsoever on a date to which the case was not posted or at least without giving notice thereof to the other party. We find from the impugned order that the District Forum has also taken exception against the conduct of the present appellants and has practically drawn adverse inference against them because they did not produce the original Ticket Book from which the Forum could have found as to whether the ticket in question was issued from the said Ticket Book in respect of the bus. It has also commented upon the non-filing of the Registers if any maintained by the present appellants to find out who was the conductor of the bus on the date in question. We find from the order sheet that no order was previously passed by the District Forum calling upon the present appellants for filing of any documents and, therefore, the observations, inspite of the requirement by the District Forum, the appellants did not file any such document is not acceptable. In normal course of events we would have thought of remitting the matter to the District Forum for consideration of the case afresh. But we also wanted to examine as to whether the matter could be disposed of ignoring the document said to have been produced by the complainant on 11.1.96.
THIS case in our opinion involves a very insignificant amount but has far reaching consequence as it involves the money realised from several passengers for a particular distance covered by the passengers. In our opinion it was not at all relevant to find out who was the conductor of the bus on the appointed day. The question really depends upon as to whether the ticket the xerox copy of which was produced by the complainant pertains to the bus of appellant No. 1. The xerox copy of the ticket in question mentions the number of the bus, the date of the journey, the distance covered thereunder and the bus fare realised from the passenger. It is not disputed that the bus, the registration number of which is written on the ticket, belongs to appellant No. 1. Though in the written version filed by the appellant No. 1 it was vaguely suggested that the ticket has not been issued in respect of his bus, at the same time it has also been alleged in the show cause that the complainant has collected the ticket from some other source having not travelled in the bus himself. It is also well-known in law that a litigant in possession of the best evidence is duty bound to produce the same in Court when any question relating to the same arises for consideration. If the party who is in possession of a document which would either prove his case or disproves the case of the other side, does not produce the same, it is also open to the adjudicating authority to draw adverse inference against him which means that it is available to be presumed that had the same been produced it would have gone against the person in possession thereof. Therefore, ignoring the document that was produced by the complainant on 11.1.96 which is the original of the xerox copy of the ticket and even taking it as a fact that the Forum did not call upon the present appellants to produce any document whatsoever, it would still be available for consideration as to whether the complainant can be found to be entitled to any relief on the facts placed on record. The xerox copy of the ticket which was produced before the District Forum does not appear to have been seriously disputed. Though in the written version filed by the present appellant No. 1 it was stated that the said ticket does not appear to pertain to the bus belonging to him, he did not dispute the signature of the conductor appearing therein nor produced the Ticket Book from which tickets were issued on that date to prove his plea and to disprove that of the complainant. In such circumstances, we are led to believe that the xerox copy of the ticket is a genuine document. The complainant evidently produced the same before the District Forum and as such he had travelled in the bus and had obtained the said ticket. Though the opposite parties deny the said allegation in the written version filed by them, there is no basis for such denial inasmuch as the bus owners do not keep any record as to the name of the persons who travelled in their bus. In order to get over the situation, the appellant No. 1 made out a story during the hearing that he himself was travelling in the bus on the date in question. But the said story was rightly disbelieved by the District Forum as it appeared to be a subsequent development and afterthought. If this be the position that the complainant had travelled from Balasore to Rasalpur paying Rs. 3/instead of Rs. 2.90p., then excess fare of Rs. 0.10 p. has been taken from him by the appellants. It is immaterial as to who was the conductor inasmuch as he is an employee of the owner of the bus and the owner will be bound by the actions and omissions of his employee. In the aforesaid circumstances, we do not find any substance for interference with the impugned order. It is no doubt correct as has been found by us earlier that there has been violation of the principle of natural justice, but we have tried to examine the matter without what was received by the District Forum on 11.1.96 and there is no difference in the conclusion arrived at by the District Forum. In the result, we do not find any merit in this appeal and hence dismissed. Appeal dismissed.