LAJ ELECTRONICS vs BISHNU MAYA PANTH

THIS appeal is directed against the order dated 6.11.2000 passed in Complaint Case No. 206 of 2000 Mrs. Bishnu Maya Panth v. Laj Electronics, by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [for short hereinafter referred to as the District Forum-II]. The respondent Mrs. Bishnu Maya Panth w/o Shri B.K. Panth r/o Kothi No. 6, Sector 4-A, Chandigarh filed a complaint case before the District Forum-II which came up for hearing before the District Forum-II. The respondent/complainant alleged, inter alia, that she purchased a second hand 21" Colour T.V. on 18.6.1988 from the appellant - M/s. Laj Electronics, S.C.F. No. 34, Sector 7-C, Chandigarh for a sum of Rs. 7,500/- against a duly executed receipt issued to the complainant/respondent. The aforesaid second hand Colour T.V. set did not function properly and gave occasional troubles to the respondent/complainant who brought up this matter to the notice of the appellant - M/s. Laj Electronics and asked the appellant to replace the second hand T.V. with a new T.V. and to adjust a sum of Rs. 7,500/- already paid to the appellant for purchasing the second hand T.V. The said offer of the complainant was accepted by the appellant who agreed to replace the second hand T.V. with a new Akai Model 14" Colour T.V. and asked the complainant to pay a further sum of Rs. 1,000/- for the services in repairing the second hand T.V. which were given to the appellant on 10.9.1998. It was averred that the appellant had sold the new Akai 14" T.V. to the respondent for a sum of Rs. 10,500/-. The complainant was, however, not satisfied with the new T.V. set as its speaker was found to be defective and the new T.V. set was also not functioning properly. The defects in the new T.V. set were also brought to the notice of the opposite party/appellant who failed to repair the same and thereafter, the same was got repaired after a complaint had been sent to the Company manufacturing the T.V. set. The complainant learnt on 17.9.1998 that the appellant/opposite party had charged excess amount for the new T.V. set as the prevailing market rate of the Akai 14" Colour T.V. was only Rs. 8,000/-. Thus a sum of Rs. 2,500/- was charged in excess and a sum of Rs. 1,000/- was charged for repairing a second hand T.V. On these averments, the complaint was filed seeking the refund of excess amount of Rs. 3,500/- with interest @ 18% amounting to Rs. 786/-. A sum of Rs. 2,000/- was claimed as damages caused and a sum of Rs. 1,000/- was claimed as costs of legal notice. A total sum of Rs. 7,286/- was claimed from the opposite party/appellant.

SINCE the opposite party - M/s. Laj Electronics did not appear in response to the issuance of the notice of the complaint case, the District Forum-II drew a presumption in favour of service of the notice which was not received back undelivered and proceeded ex-parte against the opposite party/appellant. Ex-parte evidence was led by the respondent/complainant. The complaint was decided ex-parte vide order dated 6.11.2000. The opposite party was directed to refund an excess amount of Rs. 2,500/- together with costs of Rs. 550/- with interest @ 12% per annum from the date of complaint i.e. 17.4.2000 till refund. A copy of this order was communicated to the opposite party M/s. Laj Electronics who has filed this appeal. Notice of appeal was issued to the complainant/respondent who put in appearance through Mr. J.N. Narang, Advocate. The record of the complaint case was summoned. We have heard the learned Counsel for the appellant as well as learned Counsel for the respondent and have carefully perused the record of the complaint case and have also gone through the order under appeal.

The learned Counsel for the appellant has contended that the District Forum-II committed an error in law in raising a presumption in favour of service against the appellant and wrongly proceeded ex-parte against him. The appellant was thus denied a reasonable opportunity of hearing and he could not contest the complaint case before the District Forum-II. The learned Counsel for the respondent on the other hand defended the order passed by the District Forum-II and contended that the District Forum-II has rightly drawn a presumption in favour of service of the notice which was not received back undelivered.

UPON perusal of the file of the complaint case, we find that copy of the notice issued to the appellant has been placed on record which bears the stamp of the District Forum-II and some endorsement number together with the date. However, it is not clear from the copy of the notice on record as to by which mode the notice had been sent to the appellant. As a matter of fact, the modes of service which are printed in the notice are as under : "Registered A.D./U.P.C./By Hand/Dastt" It is significant to note that the mode which was adopted for sending the notice has not been tick-marked and other modes which were not resorted, too were not scored of. Apart from it, there is no postal receipt or certificate of posting placed on record of the complaint file. Not only this, there is no endorsement of the office on the record of the complaint case as to by which mode the notice had been issued to the appellant. Under these circumstances, it is difficult to appreciate the circumstances under which the District Forum-II drew presumption in favour of service vide order dated 11.9.2000 which reads as under : "Counsel for the complainant. None for the opposite party. Notice issued to opposite party has not been received back undelivered. It is presumed to have reached it. Being absent, it is proceeded against ex-parte. For ex-parte evidence, adj. to 24.10.2K. Sd/- Sd/- Sd/- 11.9.2K Member President Member" The report of the office which is dated 8.9.2000 and is appended to the Zimini order issued, is as under : "Sir. Notice not received back."

THE mere fact that the notice issued to the opposite party has not been received back undelivered is by itself, under law, not sufficient to raise a presumption particularly when it is un-clear as to whether the notice was sent by Registered A.D. Post or under Certificate of Posting i.e. U.P.C. THEre is positive assertion made by the appellant that he did not receive the notice from the District Forum-II regarding the complaint case. Since the appellant has denied the receipt of the notice of the complaint case, the presumption, if any, which has been raised by the District Forum stood rebutted and there is now a disputed question about the service of the notice being affected on the appellant. We have already referred to the record of the complaint case. We do not find any material on record on the basis of which it could be precisely and decidedly held as to mode of sending of the notice for service on the appellant. THE presumption regarding the service of notice which could be raised in the event of the notice issued under Registered A.D. Post or for that matter under Certificate of Posting could not be raised in the circumstances mentioned above. We are, therefore, of the considered opinion that the District Forum-II was not legally justified in raising a presumption in favour of service vide order dated 11.9.2000, against the appellant. Since the appellant was not served with the notice of the complaint case, the appellant was prevented from putting appearance before the District Forum-II to defend his case. The appeal thus succeeds and is allowed. The order passed by the District Forum-II is set aside. The complaint case is remanded to the District Forum-II, U.T., Chandigarh for disposal according to law after allowing the reasonable opportunity to the appellant to file his reply to the complaint case and of leading evidence in the case. Similar opportunity shall also be allowed to the respondent/complainant to lead evidence in the case. The District Forum-II shall make all endeavours to decide the complaint case within a period of two months from the date of receipt of the record of the case. Parties are directed to appear before the District Forum-II, U.T., Chandigarh on 16.3.2001. Appeal allowed.