(As per Sri Syed Abdullah, Honble Member)
This appeal is arising out of the order passed in CC 268/2007 by the District Forum I, Visakhapatnam in dismissing he complaint for default of the complainant on the date of hearing. The order is assailed as erroneous on the ground that the complainant was not given any opportunity and that it is opposed to the principles of natural justice.
The appellant/complainant filed claim for Rs. 34,000/- and damages of Rs.25,000/- against the respondent/opposite party alleging that he had deposited Rs.30,000/-as an agent and that the complainant is entitled for commission as per the agreement and that the opposite party had not returned the said deposit, as such, the act or omission amounts to deficiency in service.
The respondent/opposite party filed its version stating that the complainant as its agent had allowed to book explosive goods for transportation and during the transit, Kasibugga Police, Srikakulam District came to know of illegal activity, has seized the vehicle and filed criminal case against the transporter, as a result of which, the opposite party had suffered monetary loss and mental agony. The other consignments of the third parties could not be delivered in time and hence the opposite party was compelled to pay compensation to them. So the appellant/complainant is liable to reimburse the loss suffered. A sum of Rs.30,000/- was deducted from out of Rs.73,000/- since he failed to reimburse the loss. The complaint is not maintainable and this Forum has no territorial jurisdiction.
After filing of the evidence affidavit by the opposite parties, it was posted for next steps i.e. for marking documents and the date was given as 14.08.2007 and on the said date since both parties were not ready/represented, re-posted to 13.09.2007. On 13.09.2007, Ex. A-1 to A3 were marked but there was no representation by the opposite parties for marking its documents. Again it was re-posted to 20.09.2007, on which date, the opposite party was absent. So the case was adjourned on payment of costs of Rs.100/- to be paid by the opposite party and posted to 03.10.2007 and on that date costs of Rs.100/- was paid by the opposite party and on that date the complainant reported ready but the opposite party was not ready so at the request of the counsel for the opposite party the case was adjourned to 23.10.2007. on 23.10.2007 the opposite party has not filed any document , hence, again it was adjourned to 01.11.2007 on which date there was no representation for the complainant. So the case was adjourned to 19.11.2007. imposing costs of Rs.200/-. From 19.11.2007, again, it was re-posted to 20.11.2007 on which date costs of Rs.200/- was deposited by the complainant but there was no representation on the side of the opposite party so it was adjourned to 10.12.2007 as a last chance. That on 10.12.2007 since the complainant was called absent and no representation was made during and after call work, the complaint was dismissed for default.
In the appeal grounds, the appellant has raised the contention that the District Forum should have passed orders on merits in stead of dismissing the complaint in default since the affidavit evidence and documents were already filed on his side. Apart from it, it should have been considered that the complainant was very much present in the previous adjournments and he had paid costs of Rs.200/- imposed on him and for his absence on one particular date of hearing the complaint was dismissed. No opportunity was given to him to put forth his contentions. The impugned order is sought to be set aside.
Point for consideration is, whether the impugned order of dismissal of the complaint for default is sustainable ?
Ex facie no orders were passed on merits. No doubt, sub-section (c0 of Sec. 13 lays down that where the complainant fails to appear on the date of hearing before the District Forum, it may either dismiss the complaint for default or decide it on merits. In fact, the presence of the complainant was not required on 10.12.2007, since he had already filed affidavit evidence and the documents which were marked, i.e., Ex. A-1 to A-3 and the respondent/opposite party have not filed any documents on its side in support of its version. Docket Orders right from 14.08.2007 shows that there are no latches on the part of the complainant in prosecuting his case. The complainant was represented by an advocate and in case his advocate was absent on 10.12.2007, the District Forum after hearing the contentions of the respondent/opposite party would have posted the case on the next day or some other convenient date to give an opportunity to the complainant or to represent the matter. After seeing A-Dairy the advocate for the complainant could have get ready by the next date of hearing. On the face of record, it can be said that the complaint was dismissed without giving an opportunity to the complainant which is opposed to the principles of natural justice. So dismissal of the complaint for default is not sustainable and it is liable to be set aside. For the aforesaid reasons, the appeal is liable to be allowed setting aside the order of the dismissal of the complaint for default. No opinion is expressed about the merits of the case while disposing of the appeal
In the result, the appeal is allowed setting aside the order dated 10.12.2007 by remanding the matter to the District Forum I, Visakhapatnam for disposal on merits. The District Forum is directed to take the case on file and issue notice to both parties fixing the date of hearing and to dispose of the case within two months from the date of the receipt of the order.