Indra Sood vs Anbros Motors Pvt Ltd

THIS is complainants appeal filed against the impugned order of the District Consumer Disputes Redressal Forum -I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) refusing to restore the complaint case, which was dismissed in default on 16.4.2004.

A perusal of Zimini order shows that the complaint case was taken up for hearing on 16.4.2004, which was fixed by an earlier Zimini order dated 23.3.2004. For the complainants Mr. Gurinderjeet Singh, Advocate had put in appearance while the OPs of the complaint case were represented by the Counsel. Even Mr. Gurinderjeet Singh, Advocate had appeared as a proxy Counsel for the Counsel who had been engaged by the complainant and the complaint case was, on the request of the proxy Counsel, adjourned to 16.4.2004. The District Forum directed the complaint case to come up on 16.4.2004 for producing documents regarding advance booking of car by the complainant and consideration. The evidence had been taken on record and the case was fixed specifically for placing on record the aforesaid document. However, on 16.4.2004, the complainant did not put in appearance. The complaint was taken up in the absence of Counsel for OPs. The District Forum passed the following order: ''The case called out several times but neither the complainant nor anybody else on her behalf has turned up. So, this complaint is ordered to be filed for default of appearance. The file be consigned.''

The complainant appeared before the District Forum and applied for setting aside of the aforesaid order by treating the said order as an order dismissing the complaint for default. It is, however, relevant to note that the District Forum in the absence of the complainant did not dismiss the complaint case but ordered the complaint case to be filed. There is no such provision under the Consumer Protection Act, 1986 (for short hereinafter to be referred as C.P. Act) for filing of complaint case and consigning it to the record room as the complaint case is not at par with the execution case. The complaint case is to be dismissed for default of the complainant or decided on merit.

THE sole ground, which was taken in the affidavit of Mr. Karan Nehra, Advocate in Paragraph No. 2 of the affidavit, which was filed in support of the application seeking restoration of the complaint case was that he wrongly noted the date of hearing of the complaint case as 26.4.2004 instead of 16.4.2004. This mistake was clearly deposed to and relied on as a ground sufficient for restoration of the case. In Paragraph No. 3 of the affidavit of Mr. Karan Nehra, Advocate, it was deposed as under: ''3. That when the Counsel for the complainant went to appear on 26.4.2004, he came to know that the matter was taken up on 16.4.2004 and the matter was dismissed in default. That the mistake is bona fide and in good faith.''

THE contents of this paragraph were verified under verification clause on personal knowledge by the deponent i.e., Mr. Karan Nehra, Advocate. The complainant also filed a separate affidavit wherein these facts were reiterated in Paragraph Nos. 2 and 3. Notices of the application seeking restoration of the complaint case were issued to the respondents/OPs who appeared and filed a detailed reply and contested the restoration of the case in the light of decision of the Honble National Consumer Disputes Redressal Commission, New Delhi (for short hereinafter to be referred as National Commission) rendered in the case of General Manager, Telecom, Rajkot v. Jayanti Lal Hemchand Gandhi, III (1993) CPJ 273 (NC)=1993 (2) CON.LT 375. The Honble National Commission held in Paragraph No. 8 as under: ''8. We are of the opinion that under the Consumer Protection Act (for short the Act) there is no provision for restoration of a cause dismissed in default and, therefore, the petitioners application for restoration of the appeal dismissed in default was an exercise in futility.''

The Honble Supreme Court has in the case of New India Assurance Company Ltd. v. R. Srinivasan, I (2000) CPJ 19 (SC)=2000 (1) CON.LT 414 decided on 28.2.2000 held that every Court or judicial body or authority which has a duty to decide a lis between two parties, inherently possesses the power to dismiss the case in default; so also it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non -appearance of the complainant. It may be pointed out that this was also a case filed under the C.P. Act.

IN the light of the law laid down by the Honble Supreme Court in the case of New India Assurance Co. Ltd. (supra), the District Forum acting as a quasi -judicial body to adjudicate a lis pending before it, have the jurisdiction to dismiss the complaint case for default and so also to restore the same on good reason being shown. In the instant case, the sole point, which crops up is whether there was a good cause shown for setting aside the order dismissing the complaint for default of the appearance of the complaint.

AS mentioned earlier, the setting aside of the order of dismissal of the complaint and restoration of the complaint was sought on the ground that the proxy Counsel Mr. Karan Nehra, Advocate had wrongly noted the adjourned date of hearing as 26.4.2004 instead of 16.4.2004 and as such nobody appeared on behalf of the complainant on 16.4.2004. We are of the considered opinion that the cause shown by the complainant was sufficient and the District Forum ought to have accepted the same and restore the complaint case keeping in mind specially the aims and objects of the C.P. Act, which has been enacted to provide better protection to the consumers and by not taking rather a too technical view of the matter. So far as the lapse on the part of the complainant is concerned as the proxy Counsel wrongly noted the adjourned date of hearing, the respondent can be compensated in terms of costs.

RESUTANTLY , the appeal is allowed. The impugned order is set aside. The complaint case is restored to its original number subject to payment of Rs. 300 as costs. The complaint is remanded to the District Forum -I, U.T., Chandigarh, which shall be decided within a period of one month by the District Forum from the date of receipt of record. The parties are directed to appear before the District Forum -I, U.T., Chandigarh on 18.8.2005. Copies of this order be sent to the parties free of charge. Appeal allowed.