DIVISIONAL ENGINEER TELEGRAPH, GAYA vs S.K.DALMIA

THE learned Counsel for the appellant as well as the respondent are present. THEy have been heard.

THIS appeal is directed against order dated 17.7.92 passed by the District Forum, Gaya in Complaint Case No. 52 of 1992 in which the appellant before this Commission was the O.P. and the respondent was the complainant. As the memo of appeal was presented before this Commission on 3.9.92, that is, after more than thirty days from the date of the impugned order an application along with an affidavit under Rule 8(4) of the Bihar Consumer Protection Rules has been filed explaining the circumstances under which the memo of appeal could not be presented within thirty days from the date of the impugned order as required by Section 15 of the Consumer Protection Act (hereinafter called the Act). We have perused the petition and the affidavit filed on behalf of the appellant and heard the learned Counsel for the parties. It is submitted on behalf of the appellant that the copy of the impugned order was sent by the District Forum on 24.7.92, which was received by the appellant on 25th July, 1992. But this appeal has been presented on 3.9.92, that is, more than a month after the date of the receiving the copy of the order. It was not presented even within a month of the getting knowledge of the order. It is submitted by the learned Counsel for the appellant that on receipt of the order by the department, time was taken in seeking legal opinion and sanction by the higher authorities to file the appeal and on these grounds prayer has been made for the condonation of the delay in filing this appeal. On the facts stated on behalf of the appellant we are not satisfied that there was sufficient ground for the appellant for not presenting the appeal before this Commission within the prescribed period mentioned under Section 15 of the Act.

Hence we find no merit in the application for condonation of the delay and it is refused. The appeal consequently stands dismissed.

BUT we have perused the order-sheets of the District Forum which it appears that on 1.5.92 the case was adjourned to 29.5.92 for hearing and on 29.5.92 the proceeding before the District Forum was conducted by the Chairman alone. On that day the case was adjourned to 19.6.92 and the opposite party was directed to produce same papers. On 19.6.92 it appears that those papers were produced by the opposite party and it was ordered by the Chairman who was alone conducting the proceeding on that date also that the papers be placed for perusal in presence of all the members of the Forum and for hearing by them and accordingly the case was adjourned to 17.7.92, the date on which the impugned order was passed. It does not appear from the order-sheet of the District Forum that the case was ever heard by any body else but for the Chairman. Of course the impugned order bears the signature of Chairman and Members, but it does not appear from the order-sheets that the case was ever heard by any of the remaining two members of the Forum. The amended Section 14(2) of the Act clearly requires that every proceeding under the Act has to be conducted by the Chairman and atleast one member. BUT in the instant case none of remaining two members appears to have been present at the time the proceeding was being conducted by the Chairman. So this mandatory provision was not complied with in the present case. Moreover, from the record of the District Forum it appears that the impugned order was passed by the District Forum only on the basis of the averments made in the complaint petition and the counter version put forth by the O.P. before the District Forum. Section 13(2) of the Act clearly speaks that the consumer disputes are to be settled on the basis of the evidence produced by the complainant and the opposite party where the opposite party denies or disputes the allegation contained in the complaint petition.

THUS it is apparent from the discussion made above that the District Forum acted in exercise of its jurisdiction illegally and with material irregularity. Under the circumstances the impugned order is hereby set aside u/Sec. 17(b) of the Act and the case is being remanded to the District Forum for disposal in accordance with the provisions of the Act keeping in view the above observations. The District Forum is directed to proceed with the disposal of the case expeditiously. The office is directed to send back the record of the case to the District Forum at the earliest. Appeal allowed.