SUB-DIVISIONAL OFFICER vs HUKMI CHAND LOHIYA

APPEALS No. 375/91 and 376/91 a rise out of an order dated 30.8.91 passed by the District Forum, Churu by which opposite parties were directed to pay Rs. 1,000/- as compensation to the complainant. As common questions are involved, they were heard together and we consider it proper to dispose them by a common order.

FACTS leading to this appeal have been mentioned in detail by the District Forum, Churu and as such, we do not consider it necessary to give a detailed resume of facts leading to these appeals. We may succinctly notice the facts. The complainant filed a complaint under Sec. 12 of the Consumer Protection Act, 1986 ("the Act" herein) against opposite parties on 4.5.90 praying for the grant of the following reliefs: 1. that the telephone instrument may be got changed. 2. that the compensation to the tune of Rs. 20,000/- on account of business loss may be awarded. that a direction for the refund of the charges recovered by the Telephone Deptt. may be issued from Aug. 89 until instrument is changed. that the expenses and fare etc. may be ordered to be paid to the complainant by the Deptt., and that a direction may also be issued by the Telephone Deptt. that if the telephone is out of order, the defect should be rectified immediately. The complainant is the proprietor of Krishna Thread Works which is situate near White Tower in the main market at Churu. Telephone No. 602 was sanctioned to him in 1984. Subsequently this number was changed to 482. In the year 1990 the complainant was allotted telephone at this residence. Its number being 843. It has been alleged by the complainant that he has been paying the bills of both the telephones regularly. On 2.8.89 Telephone No. 602 (changed number 482) went out of order and according to the complainant from that day it has been while dialling giving wrong numbers. Application for rectification of the fault was submitted. According to the complainant the fault was not rectified. Various applications were submitted raising the grievances about the non-working of the telephone. On 15.9.89, 29.9.89, 19.10.89 letters were sent and thereafter reminders were given on 21.10.89, 27.10.89, 14.3.90, 4.4.90, 26.4.90 and 28.4.90. As the telephone was not set right, the complainant has alleged that he suffered loss of his business. He has stated that from 2.8.89 to 2.5.90 there was loss of Rs. 27,000/-. A sum of Rs. 2,697/- inclusive of the Advocate''s fee was claimed as expenses.

The opposite parties resisted the complaint by filling the version of the case. It was stated that on receipt of the complaint of the telephone, the complainant was personally contacted and the telephone was set right. It was denied that the telephone remained out of order for five days. On checking of the telephone, it was detected that it was in working condition. Claim for compensation was denied. A plea was taken that on receipt of the complaint the Telephone Inspector, Telephone Officer and Sub-divisional Officer themselves got the number of the complainant''s telephone tested and steps were taken for rectification of the faults. According to them, default on any occasion did not last more than 54 hours. Separate versions of the case were filed on behalf of the other opposite parties also. A plea was taken that if the complainant has any grievance the matter should have been referred to arbitrator under Sec. 7-B of the Indian Telegraph Act, 1885. The complainant submitted the details of the expenses on 20.4.91.

ON behalf of opposite parties affidavit of B.B. Pathak, Sub-Divisional Officer, Chuni, Mr. C.L. Prajapat Jr. Telecom Officer, Churu, Shri Liyakat Ali Telephone Inspector, Churu, Shri Navranglal Sharma Lineman and Shri Lalchand Lineman were submitted. Photostat copies of the letters sent by the complainant to the opposite parties were also placed on record. The complainant submitted his affidavit dated 29.8.90and the affidavits of Ramesh Kumar dated 29.8.90, Mangturam dated 29.8.90, Mahesh Kumar dated 29.8.90, Satyanarayan dated 29.8.90, cuttings of the newspapers and photostat copies of the letters and the statement showing the local calls and trunk calls made. The District Forum heard the arguments on 26.4.91 and passed the impugned order on 30.8.91. Against that both the parties have filed the appeals. Appeal No. 375/91 has been filed by the opposite parties praying that the complaint ought to have been dismissed by the District Forum. Appeal No. 376/91 has been filed by the complainant praying for the enhancement of the compensation.

WE have carefully gone through the record and the order under appeals. After perusing the proceedings of the District Forum dated 26.8.91 (wrongly mentioned as 26.4.91 in the order sheet) and the order under appeal dated 30.8.91 we have come to the conclusion that the order under appeal has to be set aside and the complaint has to be sent back to the District Forum, Churu for fresh decision in accordance with law. A perusal of the proceeding dated 26.8.91 wrongly mentioned as 26.4.91 (as the date fixed on 24.8.91 was 26.8.91) shows that the complainant himself and Counsel for the opposite parties were present. The President of the District Forum and Satyabhama heard the arguments and thereafter posted the case for orders on 29.8.91. Discussions took place among the two members and the President on 30.8.91 and thereafter the order dated 30.8.91 awarding compensation to the tune of Rs. 1,000/- was passed. The President of the District Forum is Shri Jagdish Lal District and Sessions Judge whereas two members are Shri Ghisaram and Satyabhama. Arguments as stated above on 26.8.91 were heard by the President and Satyabhama whereas order under appeal was passed by the President and two members. It is clear that Shri Ghisaram who became a member of the Bench which passed the order under appeal did not hear the arguments on 26.8.91. It is settled that a Redressal Forum established under the Act is a quasi-judicial agency and the functions that are to be discharged by it under the Act are judicial functions. It was open under Sec. 14(2) of the Act to the President Shri Jagdishlal and Satyabhama to pass the order under appeal as they have heard the arguments but it appears from the order dated 30.8.91 as well as the proceedings dated 30.8.91 that Ghisaram member who has not heard the arguments became a signatory to the order which is against the fundamental canons of the judicial practice and procedure. No order should be passed against the party by a person who has not heard them. Where arguments are heard or an opportunity of hearing has been afforded. The order has to be set aside and the complaint has to be remanded to the District Forum, Churu with a direction to decide it afresh after notice to the parties and after hearing them and to decide it afresh in accordance with law keeping in view the observations made hereinabove and Sec. 14(2) and (2-A) of the Act. The District Forum, Churu shall take the complaint to its original number. Appeal Nos. 375/ 91 and 376/91 are allowed and the order dated 30.8.91 is set aside and a direction is given to the District Forum, Churu to decide it afresh as indicated above. Appeals No. 375/91 and 376/91 are allowed and the case is remanded. No costs. Appeals allowed. Case remanded.