S.K. Gupta, J.
1. We have heard Mr. D.S. Thakur, learned counsel for the appellant as well as Mr. Nirmal Kotwal, learned counsel for the respondent, at length.
2. This is an appeal from an order dated 17-1-2002 of the J&K; State Consumer Protection Commission (hereinafter referred to as 'the State Commission'). By the aforesaid order, the State Commission has awarded a sum of Rs. 2,87,497.50 with 18% interest from the date of depositing the amount with the respondent (appellant), Rs. 40,000/- as compensation for causing harassment and mental agony and Rs. 10,000/ on account of cost of litigation, payable by the appellant held responsible and liable for deficiency of service.
3. The facts of the case in brief may be noticed, UNO car was booked by the complainant with the appellant-manufacturer. An application form duly filled in alongwith draft of Rs. 21,000/- came to be forwarded by the complainant to the manufacturer M/s Premier Automobiles Limited, Mumbai. Delivery choice of Chandigarh Centre as per terms, conditions and instructions annexed to the application for booking UNO car was also given by the complainant. The appellant M/s Premier Automobiles Ltd., however, intimated the complainant about the maturity of the booking of UNO car on 31-1-1998 and asked to get in touch with their dealer, M/s Amardeep Automobiles Ltd. alongwith the receipt-cum-priority for completing the necessary formalities relating to the delivery of the car. The complainant was also asked to make the payment to the dealer which included in the completion of the formalities towards the delivery of the car. Acting on this communication, the complainant sent an amount of Rs. 2,87,497.50 in favour of M/s Amardeep Automobiles, Chandigarh (Dealer). It is stated that the car was never delivered to the complainant despite the payment of the entire amount for the purchase of the car.
4. After hearing the parties, the State Commission considering the rival contentions of the parties and going through the record found both the manufacturer and the dealer responsible for the deficiency in service and made an award by the impugned order, which became subject matter of challenge in this appeal.
5. Mr. D.S. Thakur, learned counsel appearing for the appellant, assailed the legality and propriety of the order propounded by the State Commission on variety of grounds. According to Mr. Thakur, there was no specific averment in the complaint that M/s Amardeep Automobiles was the agent of M/s Premier Automobiles Ltd. He further submitted that the plea put across by the complainant that M/s Amardeep Automobiles was the authorised dealer and agent on behalf of the manufacturer, is without any material evidence placed on record. According to Mr. Thakur, M/s Amardeep Automobiles was not an agent/dealer of the manufacturer and the appellant could not be held responsible or liable for deficiency in service rendered to the complainant as M/s Amardeep Automobiles has never been authorised dealer. That in the absence of pleadings, no evidence could be received and looked into by the State Commission in the strict application of the law of pleadings in the case.
6. It is apt to point out that neither any objection nor any evidence/affidavit in rebuttal has been filed by the appellant before the Commission. It is well settled that where the averments made in the complaint are un-re-butted, the presumption is that averments are true and correct. As regards the applicability of the Code of Civil Procedure to the Proceedings under the Consumer Protection Act, Section 11 of the Consumer Protection Act, 1986 (hereinafter for short 'the Act') shows that powers which are available to a Civil Court under CPC have also been made available to the District Forum in respect of matters enumerated in Section 11(4). If the intention of the legislature was to apply the other provisions of the Civil Procedure also to the proceedings under, the said Act, it would have clearly provided in the Act that such provisions will also be applicable to the proceedings before the District Forum or the State Commission or, for that matter, before the National Commission. Therefore, the Courts cannot extend the provisions of the Code of Civil Procedure in respect of the matters other than specified and indicated explicitly in Section 11(4) to the proceedings under the Consumer Protection Act. The same view was taken by the Apex Court in New India Assurance Co. Ltd. v. R. Srinivasan, (2000) 3 SCC 242. Sub-section (3) of Section 11 of the Act makes it pellucid that the only procedure to be followed by the Divisional Forum or the State Commission is the procedure laid down in Sub-sections (1) and (2) of Section 11 of the Act and if that procedure is followed in any proceedings, such proceedings shall not be called in question in any Court on the ground that the principles of natural justice have not been complied with. A plenary reading of Sub-sections (1) and (2) of Section 11 of the Act further makes it clear that the Divisional Forum and the State Commission have to decide the consumer disputes on the basis of evidence brought to its notice by the complainant and the opposite party where the opposite party denies or disputes the allegations contained in the complaint, or on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent its case within the time given by the Forum. The mere preponderance of probabilities may constitute adequate basis of the decision in proceedings before the Consumer Forum. It, however, suggests that the fact can be said to be proved when the Court either believes that it exists or considers its existence so probable that a prudent man ought to act upon the supposition that it exists, under the circumstances of a particular case. It is on the balance of probabilities that the belief regarding the existence of a fact may be founded. The Forums constituted under the Act for redressal of the grievances of the consumers are not fettered by the technical rules of evidence contained in the Indian Evidence Act. The Redressal Forums constituted under the Act, have got the same powers as are vested in a Civil Court only in respect of certain matters, namely, summoning and enforcing the attendance of any defendant and witness and examining the witness on oath; discovery and production of any document or other material object producible as evidence; reception of evidence on affidavits, requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source; issuance of any commission for the examination of any witness; or any other matter which may be prescribed. These Forums, in fact, are not governed by technicalities of law. The proceedings before the Forums are deemed to be judicial only for the purpose and to the extent indicated in Sub-section (5) of Section 11 of the Act.
7. From what is indicated above, it is indisputably gatherable that Section 11 of the Consumer Protection Act is the procedural Section, which prescribed in detail the procedure for the trial and disposal of the complaint by the Redressal Forums. 'Procedure' means rule of true procedure, which is either prescribed by law or is well established by the principles of natural justice. The expression 'procedure' means the mode in which successive steps in litigation are taken. In other words, the 'procedure code', must be read in accordance with the natural meaning of its words. The provisions of the Consumer Protection Act, 1986, thus, have to be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit oriented legislation. The primary duty of the Court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and it is not contrary to attempted objective of the enactment. It is to be remembered that the very purpose for which the statute has been enacted is to provide a cheap and speedy remedy to the aggrieved consumer by way of an alternative to the time consuming and expensive process of civil litigation. A complaint with respect to the deficiency of the service rendered by the opposite party would be tried in accordance with the procedure laid down under Section 11 of the Consumer Protection Act. Apart from that, in view of Section 10 of the Consumer Protection Act, a complaint may be filed by any consumer. The definition of 'Consumer' giving the Act a wide meaning is 'any person who hires or avails any service for consideration is a consumer.' The word 'service' as defined in the Act includes service of any kind in wide spectrum. The word 'includes' does not limit the operational paramounts of the Act. The term 'Service' has a variety of meanings. It may mean any benefit or any act and includes the provisions of facilities in promoting interest or happiness. It may be contractual, professional, public, domestic, legal, statutory, etc. Each of these are wide ranging activities in day to day life. The test is whether the nature of the duty and function performed by it is service or even facility. We are, therefore, do not find any merit in the contention raised by Mr. Thakur, learned counsel for the appellant.
8. It is not in dispute that the complainant had sent the application form duly filled up alongwith a draft of Rs. 21,000/- to the manufacturer at Mumbai with whom UNO car was booked. The booking form alongwith draft amount of Rs. 21,000/- was accepted by the manufacturer. On the top of the booking form it as explicitly indicated 'Application for booking of UNO Car (subject to terms, conditions and instructions for booking). The terms, conditions and instructions of booking of 'UNO car' formed a part of the application and were to be retained by the applicant as is indicated therein. Clause 17 of the terms, conditions and instructions for booking UNO car, which pertains to the delivery, clearly envisages that the maturity of priority would be released by the manufacturer which would entitle the applicant/complainant to complete delivery formalities and make balance payment to the dealer mentioned in the offer intimation letter. The car will be billed to the applicant either directly by the manufacturer or by its authorised dealer in terms of Clause 18; whereas Clause 19 pertains to the right reserved by the Company to deliver the car to the applicant from any other city in case it is unable to deliver from the city of applicant's choice. The material on record further shows that the complainant was intimated by the Appellant-Company to get in touch with M/s Amardeep Automobiles, 32, Industrial Area-1 Chandigarh, their dealer, for completing the necessary formalities relating to the delivery of the car. The complainant was further cautioned that a delay in contacting the dealer for making payment and completing the other formalities, may affect his priority for delivery of the car as also availability of colour of choice. This communication from the Appellant-Company to the complainant is dated 31-1-1998. The complainant sent a draft of Rs. 2,87,950/- in favour of M/s Amardeep Automobiles, Dealer at Chandigarh towards payment of balance amount for the delivery of the car as advised by the manufacturer. M/s Amardeep Motors Limited, Dealer of the Appellant-Company, vide its communication dated 17-2-1999 informed the complainant about the receipt of the amount for the purchase of the car and its transfer to their principals M/s Premier Automobiles. The text of the letter has also been reproduced in verbiage in the impugned judgment of the State Commission. All these facts elicited from the material on record when taken in its cumulative, make it abundantly clear that the car was booked by the complainant by sending a draft of Rs. 21,000/-alongwith application form duly filled up to the manufacturer, M/s Premier Automobiles Ltd. The receipt of the booking amount and application form has not been disputed by the Appellant-Company. The complainant has placed on record sufficient material, in our view, to prove privity of contract existed between the complainant and the Company with whom he booked the car. The complainant after obtaining an application form had directly booked the car with the Company by depositing booking amount of Rs. 21,000/. The complainant came in contact with dealer M/s Amardeep Motor Limited only after the receipt of communication/letter dated 31-01-1998 from M/s Premier Automobiles Limited intimating the complainant to contact their dealer, M/s Amardeep Automobiles Limited, for making the payment and for completing other formalities for taking delivery of the car. The complainant came in touch with the dealer only on the asking of the manufacturer and made payment of the balance amount for the delivery of the car and completed formalities on their instructions. The dealer, M/s Amardeep Automobiles Ltd., also informed the complainant vide letter dated 17-2-1999 that the amount for the purchase of the car received from the complainant has been duly transferred to principals, M/s Premier Automobiles Limited. In the absence of any evidence in rebuttal, oral or documentary, placed on record by the appellant, their plea of lack of privity of contract and M/s Amardeep Automobiles Ltd. being not their authorised dealer, is held to be a specious plea when the appellant had received the money. Further plea raised by the appellant that their relationship with M/s Amardeep Automobiles Ltd. is that of principal to principal and not that of principal to dealer/agent, does not stand substantiated from the material on record whereas the evidence available on record clearly and unambiguously points to the relationship with the appellant and M/s Amardeep Automobiles Ltd. to that of principal and authorised dealer. The Judgments referred by Mr. D.S. Thakur, learned counsel for the appellant, are not applicable in this case being clearly distinguishable on facts. The record further shows that even after the receipt of full payment from the complainant, the delivery of the car was not made to him either by the dealer or by the manufacturer in discharge of their obligation and have rightly been held by the State Commission to be deficient of service. It was on account of deficiency of service both by the manufacturer and the dealer that the complainant has suffered harassment, inconvenience arid financial loss and the liability of the manufacturer and dealer is joint and several to make the payment of amount awarded by the State Commission. The interest of justice, in our opinion, cannot be defeated by rule of technicality. In the facts and circumstances of the case, we are of the opinion that no exception can be taken to the view expressed by the State Commission. The respondent had suffered loss on account of the appellant deficient in rendering the service.
9. In view of the above, we are, therefore, not prepared to interfere with the order passed by the State Commission. In the premises aforesaid, we do not find any merit in this appeal. There is no such infirmity in the impugned order of the State Commission so as to justify interference of this Court in exercise of its appellate jurisdiction. We, therefore, accordingly dismiss the appeal. However, in the facts and circumstances of the case, we make no order as to costs.