At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
By, THE HONOURABLE MR. JUSTICE L. MANOHARAN
By, THE HONOURABLE PROF. K. MADHURI LATHA
By, MEMBER & THE HONOURABLE MR. PROF. R. VIJAYAKRISHNAN
For the Appellant: P. Rahim, Advocate. For the Respondent: P. Krishnankutty, Advocate.
L. Manoharan, President:
1. Complainants in O.P. 14/98 on the file of the Consumer Disputes Redressal Forum, Thiruvananthapuram are the appellants. It is submitted by the first complainant that the complaint was one for redressal for the deficiency of service of the opposit
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party whose service was availed by the second complainant for consideration. The complainant’s case was, though consistent with the agreement opposite party executed by leak proofing of the roof, the said service was defective inasmuch as the execution of the work was not as desired and thereby the complainant has suffered injury and loss. The opposite party denied the aforesaid allegation. It is submitted by the first respondent that a Commission was deputed and had filed a report. Though the complainant’s brother had filed an affidavit in lieu of the chief-examination and was ready to offer himself for cross-examination, on the reason that the second complainant herself did not appear the complaint came to be dismissed for default. According to the agent of the appellant the dismissal is opposed to law and, therefore, he pleaded that the impugned order be set aside and the matter be remanded to the District Forum for fresh disposal. The learned Counsel for the respondent on the other hand sought to support the dismissal maintaining that the complainant inspite of direction to be present before the Court since did not appear before the Forum dismissal of the complaint cannot be called in question.2. It will be open to a complainant to lead of his choice in support of his case. If as a matter of fact in a case where the complainant’s personal attendance is necessary and the complainant did not enter the box that may be a circumstance against the complainant’s case in appreciating the other evidence tendered by the complainant. It is also open to the complainant instead of giving evidence himself to be satisfied with examination of witness on his part. The risk involved in the complainant not giving evidence of course will be there; but when the complainant is ready with other evidence so as to proceed with the matter may not be proper to dismiss the complaint on the ground that complainant is not present. What is urged before us is, that the complainant’s brother was in fact present and he had also filed affidavit in lieu of chief-examination. Then simply because the complainant was not present on that day it would not be proper to dismiss the complaint for default.3. In the result, the appeal is allowed, the impugned order is set aside, the matter is remanded to the District Forum, it shall restore the complaint to file, give opportunity to both parties to substantiate their respective contentions and then dispose of the matter in accordance with law. The parties shall appear before the District Forum on 12.6.2000.
"2000 (2) CPC 237" == "2000 (3) CPR 214" == "2000 (3) CPJ 100,"