Sham Sunder (Retd.), President:
1. This appeal is directed against the order dated 18.12.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Party (now appellant), as under:-
œIn view of the above discussion, the present complaint is allowed and the opposite party is directed as under :-
(i) to pay the amount of Rs.7,02,139/- as assessed by the surveyor in his report (C-11)
(ii) to pay Rs.50,000/- as compensation for mental agony and harassment.
(iii) to pay Rs.7,000/- as litigation expenses
This order be complied with by the opposite party, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) and (ii) shall carry interest @18% per annum from the date of this order till actual payment, besides payment of litigation costs.?
2. The facts, in brief, are that the complainant retired as Deputy Director from Thapar Centre for Industrial Research and Development, Yamuna Nagar, on 31.03.2012. After retirement, he planned to settle in Bangalore. He availed of the services of the Opposite Party, for shifting his household goods, and a car. According to the complainant, the goods as also the car, were booked by the Opposite Party, on 29.04.2012, vide consignment notes No.35 and 36 respectively, for safe transportation to Bangalore. The total amount to be paid was Rs.59,000/-, out which the complainant paid a sum of Rs.47,000/- and the balance amount of Rs.12,000/- was to be paid at Bangalore, on delivery of the said goods and car. It was stated that, on the night intervening 02.05.2012/03.05.2012, the truck bearing registration number HR-67A-2479, carrying the goods of the complainant, caught fire, at Panipat, which was controlled after great efforts. F.I.R. No.332 dated 05.05.2012 Annexure C-8, was lodged with the Police at Police Station Panipat, Haryana. The complainant also supplied the list of items/goods, which were in the said truck, and stood destroyed in the fire, to the Opposite Party.
3. It was further stated that when the complainant read the consignment note to lodge the claim, he found that the Insurance Policy number was not mentioned therein. He requested the Opposite Party, to provide the name and address of the Insurance Company, as well as the Policy number, so that the claim could be lodged by him, but it failed to do so. It was further stated that, in those circumstances, the complainant availed of the services of a duly qualified Surveyor, and Loss Assessor, Sh. Surender K. Singla, who vide his report dated 28.05.2012, assessed the loss to the tune of Rs.7,02,139/-When the complainant asked the Opposite Party, to pay the amount aforesaid, as per the report of the Surveyor and Loss Assessor, towards loss of the goods, booked with it, as also compensation, it failed to do so. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to pay the amount of Rs.7,02,139/-, assessed by the Surveyor, and Loss Assessor, towards the loss of household goods, referred to above; compensation, to the tune of Rs.10 lacs, for loss of intellectual property, deficiency in service and adoption of unfair trade practice; and cost of litigation, to the tune of Rs.55,000/-.
4. Notice to the Opposite Party was sent, which was received with the report of refusal. The District Forum came to the conclusion, that refusal amounted to good service. Since, none appeared, on behalf of the Opposite Party, it was proceeded against exparte, by the District Forum, vide order dated 27.11.2012.
5. The complainant led evidence, in support of his case.
6. After hearing the Counsel for the complainant, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
8. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellant/Opposite Party, submitted that the appellant/Opposite Party, was never served. He further submitted that notice of the Consumer Complaint was sent for service of the Opposite Party, through Process Server, who made a report, to the effect that he went there, and they refused to accept the same (service). He further submitted that the Process Server did not mention, in the report, as to which person met him, on behalf of the Opposite Party, who allegedly refused to accept the service of notice. He further submitted that he did not obtain the signatures of any witness, in whose presence, the alleged refusal was made by some unknown person. He further submitted that even copies of the summons, complaint and other documents were not affixed on the conspicuous place of the premises of the Opposite Party, as per the provisions of Section 13 (4) of the Act. He further submitted that, according to Section 13(4) of the Act, the District Forum, had the same powers, as vested in the Civil Court, under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the matters, mentioned therein. He further submitted that since the Opposite Party was never served, nor any authorized person, on its behalf, refused to accept the service of notice, it was wrongly proceeded against exparte, by the District Forum, vide order dated 27.11.2012. He further submitted that significant points are involved, for decision in the lis, viz, as to whether, the claim was received by the complainant, in respect of the loss of goods, from the Insurance Company, as he admitted, in his statement dated 05.09.2013, before the Judicial Magistrate, with regard to the receipt of such claim; as to whether, it was on account of negligence, on the part of the driver of the truck, that loss to the goods in the vehicle, was caused; and what was the value of the goods, declared by the complainant, at the time of booking the same, with the Opposite Party. He further submitted that the order of the District Forum, be set aside and the case be remanded back, for fresh decision, on merits.
10. On the other hand, the Counsel for the respondent/complainant, submitted that the notice was sent through the Process Server, who went to the premises of the Opposite Party, and some authorized person, on its behalf, had refused to accept the same, and, as such, the District Forum was right, in proceeding exparte against it. He further submitted that it could not be imagined that the Opposite Party did not come to know of the proceedings pending against it, till the appeal was filed by it. He further submitted that, no significant questions are involved, in the case, for decision by the District Forum, and, as such, the Opposite Party cannot be granted any opportunity to file written version, lead evidence, by way of affidavit(s), after setting aside the order impugned, and remanding back the case to it (District Forum). He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
11. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties and the evidence, on record, we are of the considered opinion, that the appeal is liable to be accepted, for the reasons to be recorded hereinafter. The question arises, as to whether, due service of the Opposite Party, was effected, or any authorized person, on its behalf, refused to accept the service of notice, sent to it, through the Process Server, or not. Perusal of the record shows that the notice for service of the Opposite Party, was sent for 27.11.2012, through the Process Server. The said Process Server, made a report to the effect that he went to shop No.168/3, P.W.T., Manimajra, Chandigarh, for the service of summons, but they refused to accept the same. He further stated, in his report, that he asked for the name of the person, who refused to accept the notice, but he refused to disclose the same. This report of the Process Server, in our considered opinion, is completely wrong. In case, a person met him, on behalf of the Opposite Party, then he should have written his name, in the report. He could verify the name of the person, who allegedly refused to accept the summons, on behalf of the Opposite Party. He was required to obtain the signatures of some neighbourer, in whose presence, such refusal was allegedly made by an authorized person, on behalf of the Opposite Party. Not only this, since the same powers vested, in the District Forum, under Section 13(4) of the Act, as are vested in a Civil Court, under the Code of Civil Procedure, 1908 (5 of 1908 ), while summoning and enforcing the attendance of any defendant or witness and examining the witness on oath, it was required of the Process Server, to affix copies of the notice, and the documents, on the conspicuous place of the premises of the Opposite Party, where it was allegedly working for gain. The Process Server, however, did not do so. Under these circumstances, in our considered opinion, the District Forum was wrong, in coming to the conclusion, that the Opposite Party, refused to accept the service. The District Forum was also wrong, in coming to the conclusion that, in this manner, refusal amounted to good service. Since, neither any person, on behalf of the Opposite Party refused to accept the service of notice, nor it was served, nor on account of the alleged refusal, the copies of summons, as also the complaint and documents were affixed on the conspicuous place of the premises, where the Opposite Party was working for gain, the District Forum was wrong, in coming to the conclusion, that there was due service. By proceeding against exparte against the Opposite Party illegally, it was condemned unheard. Under these circumstances, the order impugned is liable to be set aside, and the case deserves to be remanded back to the District Forum, for fresh decision, on merits.
12. Not only this, significant and important points raised at the time of arguments, in the appeal, require determination. The first point that requires determination, is, as to whether, the complainant/ respondent obtained reimbursement of the claim, from the Insurance Company, if so, to what extent, with regard to the loss of goods, in question, as, at the time of arguments, the Counsel for the appellant, produced certified copy of the statement dated 05.09.2013 of the complainant, which was made before the Judicial Magistrate, wherein, he admitted that he had received the claim amount, to the tune of Rs.7 lacs, from the Insurance Company. The second significant question, which requires determination, in the lis, is, as to whether, it was on account of the negligence of the driver of the truck that loss to the goods, in the vehicle, was caused or not. The third significant question, which requires determination, is, as to what was the declared value of the goods, booked with the Opposite Party, by the complainant/respondent, at the time of booking the same. Such points can only be properly decided, if the Opposite Party is allowed to file written reply, and evidence, by way of affidavit(s). It is also the settled principle of law, that every lis should normally be decided, on merits, than by resorting to hyper-technicalities. In the instant case, as held above, the Opposite Party was proceeded against exparte, wrongly, and, as such, opportunity should be granted to it, to file the written version, and lead evidence, by way of affidavit(s).
13. For the reasons recorded above, the appeal is accepted, with no order as to costs. The impugned order is set aside. The case is remanded back to the District Forum, for fresh decision, on merits, in accordance with law, after affording a reasonable opportunity to the Opposite Party, for filing vakalatnama, written reply, alongwith evidence, by way of affidavit(s), and hearing the arguments of the parties.
14. The parties are directed to appear, before District Forum (II) on 17.04.2014 at 10.30 A.M., for further proceedings.
15. The District Forum record, alongwith a certified copy of the order, be sent back to it, immediately, so as to reach there, well before the date and time fixed i.e. 17.04.2014 at 10.30 A.M. Certified Copies of this order, be sent to the parties, free of charge.
16. The file be consigned to Record Room, after completion.