Back
2010(1) CPR 101
CHHATTISGARH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, RAIPUR
S.C. Vyas, President ; Veena Misra and V.K. Patil, Members
Yogendra Pratap Singh –Appellant
versus
Mukesh Kumar Sahu –Respondent
Appeal No. 237 of 2009
Decided on 15.9.2009
Counsel for the Parties:
For the Appellant:Ms. Khileshwari Shandilya, Advocate.
For the Respondent:Shri N.K. Ogre, Advocate.
IMPORTANT POINT
Without an actual service or a demand service. The party concerned cannot be set
ex parte.
Headnote:(i) Consumer Protection Act, 1986— Sections 12 and 15/17(b)—Delayed and wrong delivery of the CD—Complainant claimed ‘compensation’—Section 13—Opposite party set at ex parte—Application for setting aside of ex parte order disallowed—Section 14—District Forum dismissed the complaint being barred by Section 24(a)—Appeal against Forum’s orders—Held: Complaint was filed within time Forum’s summoning notice was not served upon the opposite party—Impugned orders cannot be sustained—Appeal is allowed—The complaint is remanded back to District Forum for fresh trial and decision on merits. (Paras 1, 2 and 3 and 6 to 9)
Result: Appeal allowed.
S. C. Vyas, President—Complaint Case No.120/08 of the appellant herein, has been dismissed by the District Consumer Disputes Redressal Forum, Rajnandgaon (hereinafter called “District Forum” for short), vide order dated 23.4.09, on the ground of limitation. It has been held that the complaint is barred by limitation under provisions of Section 24 (a) of the Consumer Protection Act, 1986, as the same has been filed after two years from the date of cause of action.
2. Briefly stated the case of the appellant hereinbefore the District Forum was that the respondent was given contract for photography, video-graphy of different ceremonies of marriage, engagement, tilak etc., held in the family of the complainant. The allegation is that after the ceremony photographs, Video CDs were not provided to the complainant for a long time. Lastly a CD was provided, which was also not of his ceremony and functions held in the family of the appellant herein. Thus, compensation was claimed and the cause of action has been shown as arisen on 30.4.08, when the CD was provided.
3. Respondent appeared before the District Forum at late stage and prayed for setting aside the ex parte proceedings and for grant of time for filing written version, when that prayer was not allowed, then synopsis of written argument was filed by the respondent.
4. We have heard arguments of both parties and perused the record of the District Forum.
5. We find that as per the case of the respondent, the respondent himself had never refused to accept the registered post containing notice of District Forum. The endorsement on the envelope shows that there was refusal on the part of the respondent, but it has been stated by the respondent that he was out of station, those days and some employee might have refused to accept the post, but not the respondent. It has also been asserted that the endorsement of the postman might be wrong and might be at the instances of the complainant. It has been submitted in the application moved before the District Forum that as and when the respondent got information regarding the complaint he moved to the District Forum and appeared before it, and has shown interest to take part in the proceedings and prayed that he be permitted to file written version and also documents. Such application was dismissed by the District Forum on two grounds firstly, that the District Forum does not enjoy any power to set aside the ex parte proceedings and it has also been held that opportunity for filing written version can also not be granted.
6. After hearing arguments of both parties and perusing the record and the endorsement of the postman and also the application moved by the respondent before the District Forum, supported by his affidavit, we are convinced that the respondent was not available at the given address, on the date when the endorsement was put on the envelope by the postman and therefore, the same cannot be treated a proper service on the respondent, as he never refused to accept the notice.
7. So far as the appellant is concerned, we find that he has given affidavit in support of the complaint, wherein it has been stated that from the date of ceremony of engagement, tilak as well as marriage, he was requesting the respondent for providing the photographs and the CDs of video-graphy, but evasive replies were given, then ultimately he went to the residence of the respondent on 30.4.08, then a CD was provided. In absence of any controversion of this statement by OP, whatever the appellant has stated, normally should have been believed by the District Forum and the limitation should have been computed accordingly.
8. Therefore, we find that the District Forum was wrong in computing the period of limitation, though there was no evidence to controvert the statement of the complainant. The District Forum was also wrong in not believing the statement of the respondent/OP, who was saying that he was not available at his residence on the days
