Mrs. Neena Sandhu, Member:
1. This is an appeal filed by the O.P. against order dated 19.11.2007 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 782 of 2007.
2. Briefly stated the facts of the case are that the complainant had entered into an agreement with the O.P. to give Anti-Termite Treatment for the protection of his house from termite. The complainant had paid Rs. 5,000 for the above said treatment and assured the complainant that after treatment, the work would be entirely safe for five years. In pursuance of the said agreement, the O.P. completed the process of Anti-Termite Treatment in the house of the complainant and undertook that in case termite reappear before March, 2008 the O.P. would repeat the said process/treatment of the affected portion in the said premises without further payment of any amount as per letter dated 18.4.2003. It was alleged by the complainant that the termites appeared and reappeared time and again in the house of the complainant and the complainant made many requests on telephone as well as visited the premises of the O.P. for providing treatment to termites but the O.P. did not care at all. Due to this act of the OP, the wooden frames in the house of the complainant had been badly damaged by the termites and the O.P. failed to use the proper and effective medicines for the treatment of termites. The O.P. had given the treatment three four times but it had no effect and the O.P. was failed to provide satisfactory service to the complainant and as such deficient services were given to the complainant. The complainant served a legal notice dated 16.11.2006 to the O.P. but the O.P. did not care to do the needful. The abovesaid act of O.P. amounts to deficiency in service and hence, the complaint was filed.
3. Notice served upon O.P. but despite notice, nobody appeared on its behalf. Hence, O.P. was proceeded against ex parte.
4. The complainant led his evidence in support of his contentions.
5. The learned District Forum accepted the complaint and awarded a lump sum compensation of Rs. 1,00,000 to the complainant towards damages (for loss of wood work, replacement of damaged wood work and for mental agony) along with costs of litigation of Rs. 2,100. The said order was directed to be complied within 30 days from the date of receipt of copy of this order failing which they would be liable to pay the same with interest @ 12% p.a. from the date of this order, till realization.
6. Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the OP. Mr. Krishan Singla, Advocate has appeared on behalf of appellant and Mr. S.P. Thukral, Advocate has appeared on behalf of respondent.
7. In appeal, it is alleged that the respondent has not approached the Forum with clean hands rather has suppressed some material facts and has misled the learned District Forum. The complainant has wrongly stated in the complaint that he has paid Rs. 5,000 for anti-termite treatment to the appellant but the true fact is that the appellant had paid Rs. 2,500 only for the treatment. As per the latest judgment by Honble Apex Court in G.M., Haryana Roadways v. Jai Bhagwan, III (2008) SLT 446=2008 (2) RCR (Civ.) 869, that suppression of material facts by the litigant deserves the dismissal of the suit with heavy cost. It is submitted by the appellant that the respondent with a mala fide intention just to get an ex parte order from the learned District Forum has intentionally not disclosed the name of the Managing Director/Director of the company. The respondent intentionally has filed his complaint against the Prop/Partner of the company through some one Sh. Sharma. The respondent has well known that it is company and not a partnership or proprietorship concern and there is no one Sharma in the company who holds the office of MD/Director. The learned District Forum has ignored all these facts and ordered an ex parte order. The appellant has not received any kind of notice from the learned District Forum. The appellant whenever received any complaint from the respondent has repeated the job of anti-termite treatment within five years. The respondent has concealed this fact that any repeat job has been done by the appellant. The respondent has alleged in his complaint that due to termite his wooden frames has damaged but to this effect there is no expert opinion. The learned District Forum has not appreciated the law laid down by Honble Apex Court in Bharti Knitting v. DHL, II (1996) CPJ 25 (SC)=1996 (4) SCC 704, that agreement clauses bind both the parties and the parties cannot go beyond the agreement clauses. The learned District Forum is wrongly swayed by the erroneous assertion made by the respondent that the anti-termite treatment was not effective and due to this, the respondent has met with a heavy loss. Hence, it is prayed that the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside.
8. We have heard the learned Counsel for the parties and perused the record.
9. We have perused the file and heard the arguments of the learned Counsel for the parties, we feel that this appeal is not maintainable on the ground of limitation. This case is hopelessly time barred as there is delay of 605 days in filing the present appeal. Regarding this the O.P. has filed an application for condonation of delay without supporting any affidavit. Moreover, the reason given in the application for condonation of delay is not at all satisfactory, rather it is vague and no cogent evidence has been placed on file by the O.P. for the said delay in filing the appeal. On perusal of the file it has been noticed by us that the notice was duly served to the O.P. by the learned District Forum, regarding which a signed receipt of the courier through which the summons were sent is also placed on the file. Hence, the plea of O.P. that the O.P. was not aware of the fact that some complaint has been filed against him and the learned District Forum has wrongly passed ex parte decision against the O.P. is not acceptable. Since the O.P. was duly served by the learned District Forum but despite service, nobody appeared on its behalf, it is sheer negligence on the part of O.P. In our opinion the appeal filed by the O.P. with a delay of 605 days is barred by limitation, therefore, appeal filed by O.P. is liable to be dismissed solely on the ground of limitation.
10. Even on merits the appeal is liable to be dismissed because the medicine/chemical used for anti-termite treatment was not of a desired quality. Due to this reason, the termites reappeared, regarding this reappearance of the termite, the complainant duly informed the O.P. However the O.P. had done anti-termite treatment for 3-4 times but it had no effect whatsoever over the growing termites which resulted damage to the wood work in the house of complainant. The complainant has also placed on file the report of the valuer who assessed the loss for the replacement of the wood work for Rs. 54,425 (Annexure P-2). From these facts and discussions, we are of the view that admittedly the O.P. had failed to provide satisfactory service to the complainant and the case of the complainant is fully covered by the Consumer Protection Act, 1986 under Section 2(oo) âspurious goods and servicesâ mean such goods and services which are claimed to be genuine but they are actually not so. In the present case, the medicine/chemical used by the O.P. for the anti-termite treatment in the house of the complainant was defective and due to this reason, the termites reappeared again and again and damaged the wood work of the house of the complainant. We are of the considered opinion that the medicine/chemical used by the O.P. for anti-termite treatment is spurious one, therefore, there is definitely deficiency in service on the part of O.P. and the O.P. is liable to pay compensation to the complainant for the reasons that the O.P. has used the spurious goods while providing the services (anti-termite treatment) to the complainant.
11. The objection taken by the O.P. in appeal regarding the payment of Rs. 2,500 instead of Rs. 5,000 is rebutted by the learned Counsel for the complainant and contended that in fact the complainant had paid a sum of Rs. 5,000 as a consideration for the anti-termite treatment then why and how the O.P. has placed a receipt of Rs. 2,500 along with the memorandum of appeal. After taking into consideration the arguments put forth by the learned Counsel for both the parties regarding this objection we are of the view that in the absence of any rebuttal/document/evidence produced by the appellant the contention of the complainant was liable to be believed that he had paid a sum of Rs. 5,000 as a consideration for the services hired from O.P. However, in the present case, in our opinion it is immaterial whether the complainant has paid Rs. 2,500 or Rs. 5,000, the main issue for consideration before us is whether the O.P. is deficient in providing the services to the complainant. Secondly how much amount the complainant had paid for the replacement of damaged wood and how much the complainant had suffered mentally and physically due to this act of O.P. Here we have come to the conclusion that there is a deficiency in service on the part of O.P. because the chemical/medicine used for anti-termite treatment by the O.P. is not of a desired quality and due to the ineffectiveness of the medicine used for the anti-termite treatment, the termites reappeared again and again and for this reason, the wood work of the house of the complainant was badly damaged. While doing the anti-termite treatment had the O.P. used the desired quality of medicine/chemical then definitely the termites could not have reappeared again and again. Hence, due to this act of the O.P. the complainant was required to be replaced the whole damaged wood work of his house. Due to which, the complainant has suffered a lot of physical and mental agony. Therefore, the complainant is rightly compensated for this act of the O.P.
12. In view of the foregoing discussion, we do not find any ambiguity in the order passed by the learned District Forum. The order passed by the learned District Forum is just, fair and proper, hence no interference is called for. The appeal filed by the O.P. is hereby dismissed on the ground of limitation as well as on merit and the order passed by the learned District Forum is upheld. The parties are left to bear their own costs.
13. Copies of this order be sent to the parties, free of charge.