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Judgment
AGAINST the order dated 16.4.90, passed by the District Forum. Jaipur in Complaint Case No. 268 of 1989 the opposite party-appellant has filed this appeal under Sec. 15 of the Consumer Protection Act, 1986 ("the Act" herein). By the impugned order, the opposite-party-appellant was directed to pay to the complainant-respondent a sum of Rs. 19,800/- within 15 days from the date of the order, failing which the complainant was to recover interest on the above amount @ 12% p.a. from the date of the theft until realisation. The complainant obtained Trader Comprehensive Policy from the appellant from 15.2.85 to 14.2.86 covering the risk for Rs. 2.20 lacs. The number of the policy was 41301/57/01187. The complainant is said to have paid premium. On 12.2.85 theft took place in the shop of the complainant for which a first information report was lodged at the police station and the case was registered at No. 90/85. The complainant informed the opposite-party and an independent survey or Shri P.K. Bhatia was appointed. The police gave FR in the matter. Another theft is said to have taken place on 10.5.85. The First Information Report was lodged and the case was registered by the police. Again the police gave FR in the matter. In two thefts Rs. 19,800/- were stolen (Rs. 7,000/- were stolen on 23.2.85 and 12,800/- on 10.5.85). As the claim was not settled and the amount was not paid, the complainant-respondent submitted a complaint under Sec. 12 of the Act before the District Forum, Jaipur on 5.7.89 praying that compensation amounting to Rs. 48,490/- may be awarded to him. The details of the compensation have been given in para 7 of the complaint. With the complaint, the complainant filed photostat copies of the documents to support the averments made in the complaint. After registering the complaint, notice was issued to the opposite-party-appellant. On 27.7.89, learned Counsel for the opposite-party appeared and prayed for time to file the reply. The next date fixed was 28.8.89. On 28.8.89, time was again sought for filing the reply. Next dated fixed was 29.9.89. On that date, nobody was present on behalf of the opposite-party. It was recorded that the advocates have boycotted the Courts. Next date fixed for filing the reply was 28.10.89. Nobody appeared on behalf of the opposite-party on 28.10.89. It was recorded that complainant may file affidavit. On 28.11.89, nobody was present on behalf of the parties and, therefore the District Forum adjourned the complaint to 13.2.89 for filing the affidavit of the complainant on that day. The complaint was posed for order on 19.12.89. On 19.12.89, on behalf of the opposite-party-appellant, nobody was present. Having regard to the proceedings of the previous dates, the District Forum was of opinion that the opposite-party does not want to participate in the proceedings. The case was posted for orders on 22.12.89. Though the date fixed was 22.12.89, the proceedings were drawn on 22.1.90. Nobody was present on behalf of opposite-parties. It appears that an application under Sec. 34 of the Arbitration Act, 1940 dated 16.2.90 was filed. The complaint was adjourned on this application to 10.4.90. As nobody was present on behalf of the opposite-party on 10.4.90, the application under Sec. 34 of the Arbitration Act was dismissed. The complaint was posted for orders on 16.4.90, and the District Forum passed the order as stated above. The opposite-party has filed this appeal on 14.5.90. A stay application was filed with the appeal. Notice was issued to the complainant-respondent. He filed reply to the application supported by the affidavit. It appears from the proceedings of the appeal dated 11.7.90 that Cheque No. K 502663 dated 23.5.90 drawn on Allahabad Bank Jaipur in favour of the complainant-respondent for Rs. 31,945/- in regard to the amount awarded inclusive of interest for which the impugned order was passed was given to the complainant. Certain other directions were given on that day.
ARGUMENTS in the appeal were heard and concluded on 13.9.90. On 14.4.90, the appeal was ordered to be mentioned on 15.9.90. On 15.9.90, Mr. Atul Luhadia, learned counsel for the appellant and Mr. G.C. Garg, learned Counsel for the complainant-respondent appeared and made additional submissions. Learned Counsel for the appellant has submitted an application dated 13.9.90 after the additional submissions were over stating, inter alia, that in case the Commission remands the case to the District Forum for retrial the amount paid co the complainant may remain with the complainant subject to the order of the District Forum and subject to the condition that the complainant should be made liable to pay interest for the period this amount remains with the complainant. The only point argued by Mr. Atul Luhadia, learned Counsel for the appellant before us is that fair and reasonable opportunity was not afforded to the opposite party to contest the complaint. Our attention was drawn to the fact that affidavit was filed on behalf of the complainant on 13.12.89 but its copy was neither sent nor supplied to the opposite party. No opportunity to file the counter affidavit was given. The complaint relates to deficiency in service rendered by the opposite party. The procedure for trial of the complaint has been laid down in Sec. 13(2) of the Act. The copy of the complaint was referred to the opposite party directing it to give version of the case after service of the notice. At the request of the opposite party, various dates were given for filing the version of the case. The opposite party failed to avail of the opportunities granted for filing the version of the case. It failed to appear on the various dates fixed. As the version of the case was not filed by the opposite party within the time given by the District Forum, the District Forum has no alternative but to resort to Sec. 13(2)(b)(ii) of the Act. The complainant had filed affidavit and the documents. Opposite party failed to make any action to represent the case. In these circumstances, the District Forum was left with no option but to decide the complaint. Having considered the proceedings of the complaint, we find it difficult to hold that fair and reasonable opportunity was not given to the opposite party to contest the complaint. It needs to be mentioned here that though the opposite party has not filed version of the case, the application under Sec. 34 of the Arbitration Act was presented on 16.2.90 and that the complaint was posted on 10.4.90. Even on 10.4.90, no appearance was put on behalf of the opposite party and, therefore, the District Forum dismissed the application. Learned counsel for the appellant gave explanation that on 10.4.90 and 16.4.90, advocates at Jaipur had boycotted that Courts and, therefore, he was prevented from appearing before the District Forum. No useful purpose will be served by making a probe in the matter for, the learned Counsel for the opposite party could atleast make arrangements for appearance on behalf of the opposite party by an agent or representative by deputing some officer or official of the Insurance Company. Learned Counsel appearing for the complainantrespondent Mr. Tarachand Jain strongly refuted the contention that this was the cause for non-appearance of the learned Counsel on the dates when the advocates of Jaipur city had boycotted the Courts. One thing is clear from the impugned order and that is that Shri Tarachand Jain Advocate was present on behalf of the complainant-respondent on that day. The statement of fact in the order is challenged as erroneous by the learned Counsel for the appellant. Mr. Luhadia, asserted with considerable force that this is a wrong statement for, nobody appeared before the District Forum during the two alleged dates. It is well settled by the judgment of the highest Court of the country that when a statement of fact is mentioned in a judgment it is taken as correct unless both the litigants agree to say that it is erroneous or that the Court itself says that it has wrongly been recorded. Remedy in such circumstances of the aggrieved party is to resort to review before that Court which has mentioned the statement of fact. Reference in this connection may be made to A.I.R. 1984 S.C. 377. The contention cannot be accepted. In addition, it may be mentioned that in support of the contention that Mr. Tarachand Jain, Advocate was not present before the District Forum on 16.4.90, nothing has been said in the memo of appeal what to say that affidavit in support of that has not been filed. For all these reasons, we are of considered opinion that there is no justification for the learned Counsel for the appellant to contend that the impugned order is bad for no reasonable and fair opportunity was given to the opposite party. The District Forum has followed the procedure laid down under Sec. 13(2) of the Act and the order is not vitiated on the ground canvassed before us. We have carefully read the order under appeal and scrutinised the reasons given by the complainant. No valid exception can be taken to the findings recorded by the District Forum. We affirm the order dated 16.4.90 passed by the District Forum. The result is that there is no force in this appeal and it is hereby dismissed. In the circumstances of the case, parties are left to bear their own costs of the appeal. Appeal dismissed.