Trilochan Singh vs JAGDISH CHANDRA KHATRI

THIS appeal is directed against the judgment and order dated 17.3.2001 passed by District Consumer Forum, Pratapgarh in Complaint Case No. 274 of 2000. The facts of the case as stated are that the complainant Jagdish Chandra Khatri purchased a Bajaj Scooter Chetak in the year 1996 from the opposite party M/s. Mehar Automobile, Sultanpur. THIS scooter No. UP 72-A 2009 was registered with the Transport Authority. In the first week of October, 2000, the scooter due to the manufacturing defect was broken into two parts and nephew of the complainant who was driving the scooter was badly injured in the accident. There was an agreement between the two parties that in case there was any manufacturing defect in the scooter, the opposite party was liable to replace the scooter or pay to the complainant the cost of the same. The complainant, therefore, lodged a claim before the District Forum for seeking direction to the opposite party that the scooter in question be replaced or the cost paid for it be refunded to him. A compensation of Rs.5,000/- was also claimed.

THE opposite party inspite of the notice did not appear before the District Forum and the complaint proceeded ex parte. The complainant led evidence before the District Forum and after hearing the complainant the case was decreed by the District Forum directing the opposite party to replace the scooter and in the alternative to refund the price of the same. The District Forum directed compliance of the order within a period of 15 days failing which 18% interest was also payable.

The opposite party moved an application before the forum to recall the judgment and order dated 17.3.2001 referred to above stating therein that the notice sent by the forum did reach the opposite party and was sent on wrong address. The opposite party had, in fact, been carrying on the business at different place at Sultanpur and therefore the registered notice was not received and ex parte order has been passed by the Forum without affording an opportunity. The District Forum considered this application for recall of the judgment and order passed by it and rejected the same on the ground that the judgment and order have been passed on merit and the Forum has no jurisdiction to entertain the recall application. This order of the District Forum was passed on 17.7.2001.

AGGRIEVED of the judgment and order dated 17.3.2001 and the order passed by District Forum on 17.7.2001 the opposite party has come in this appeal. We have heard the learned Counsel for two parties and have also perused the documents placed on the appeal file. The appellant has also moved an application for condonation of delay in filing the appeal. The grounds advanced in the affidavit filed on behalf of the appellant are that the appeal could not be filed within the time due to the reason that the complainant gave wrong address of the opposite party. When the complainant purchased the vehicle four years back the appellant had opened his shop on trial basis and the shop was closed as there was business loss and the address given by the complainant was of this shop situated at Pratapgarh where the opposite party has closed his business and therefore the opposite party had no knowledge of the complaint. The execution notice was sent at the address of Sultanpur and it was only then that the appellant became aware of the orders passed by the District Forum.

WE have also perused the judgment and order in which the District Forum has observed that a registered letter was sent to the opposite party but the opposite party failed to appear before the Forum and the case, therefore, proceeded ex parte. It has not been stated in the judgment and order whether the registered notice sent was returned unserved or not. In view of the facts as stated in the affidavit filed on behalf of the appellant and the records available on the appeal file we find that proper service was not effected on the opposite party and, therefore, the ground advanced for condonation of delay appear to be justified. Therefore, the delay in filing the appeal which was filed on 17.8.2001 is condoned. The learned Counsel for the appellant has argued that in the complaint case before the Forum the complainant had given the address of the opposite party where his earlier shop was situated and that was two years ago when it was closed. The complainant had purchased the scooter in August, 1996, and the complaint was filed on 9.10.2000 and, therefore the complaint is not maintainable which has been filed after four years of the purchase of the scooter. The warranty given to the complainant was effective for a period of one year only.

ON the other hand the learned Counsel for the respondent has argued that a registered notice was served on the opposite party at Pratapgarh and it did not deliberately contest the case before the District Forum and, therefore, the District Forum rightly rejected the restoration application on 17.7.2001.

A perusal of the record placed on the appeal file will go to show that the opposite party was not given adequate opportunity to present its case before the District Forum. On behalf of the appellant the affidavit has been filed to the effect that it had closed its shop at the address given in the complaint and notice has not been sent at the address where the opposite party had its present shop. A perusal of the judgment and order also goes to show that the registered notice sent to the opposite party had come back unserved. We, therefore, find that the opposite party has not been given opportunity of being heard before the District Forum and the case is liable to be remanded for de novo trial before the District Consumer Forum. The appeal is, therefore, liable to be allowed. ORDER The appeal is allowed. The judgment and order dated 17.3.2001 passed by District Consumer Forum, Pratapgarh are set aside. The case is remanded to the District Forum for de novo trial. The District Forum will provide opportunities for hearing both the parties who will present themselves before the District Forum on 12.8.2002. The Forum will then proceed to try the complaint as per provisions of the Consumer Protection Act. In the circumstances of the case there will be no order as to cost. Let a copy of this order be also sent to the District Forum concerned for information and necessary action. Let copy as per rules be made available to the parties. Appeal allowed.