T.S.P. Moosath : Judicial Member
The 1st opposite party in C.C. No. 190/2017 of the Consumer Disputes Redressal Forum, Pathanamthitta, in short the District Forum, has filed the appeal against the Order passed by the District Forum by which they along with opposite parties 2 & 3 were directed to pay Rs. 2,68,283/- towards the price of the materials, Rs. 30,000/- as compensation and Rs. 5,000/- as costs to the complainant.
2. The case of the complainant is that he has constructed two storied building in his property at Pandalam. For making wardrobes and wall shelves he purchased Architect Century Ply on 22.09.2012 for Rs. 1,10,015/- from the 2nd opposite party as the authorized dealer of the 1st opposite party. Out of the wardrobes and wall shelves constructed by using those materials two wardrobes and two wall shelves in bed rooms on the ground floor were damaged due to termite infestation. It is the case of the complainant that those defects happened due to low quality of the materials supplied by the opposite parties. Though the complainant contacted the opposite parties 1 & 2 they failed to redress his grievance. Alleging deficiency of service and unfair trade practice on the part of the opposite parties the complainant has filed the complaint claiming an amount of Rs. 2,68,282.50 towards the price of the materials and labour charges, the amounts required for construction of the new two wardrobes, two wall shelves and one book shelf in the very same dimension, as they originally stood. Complainant has also claimed Rs. 1,00,000/- as compensation.
3. Notices were received by the opposite parties, but they failed to appear. Hence they were set ex-parte. Complainant filed proof affidavit and produced documents which were marked as Exts. A1 to A7. The reports and mahazars filed by the Advocate commissioner and the expert commissioner were marked as Exts. C1 to C4. Considering the evidence adduced by the complainant and the reports submitted by the Advocate commissioner and the expert commissioner, the District Forum has passed the impugned order. Aggrieved by the order passed by the district forum, the 1st opposite party has preferred the present appeal.
4. The 1st respondent appeared through counsel. Even though the respondents 2 & 3 received notices, they did not appear.
5. Heard both sides. Perused the records.
6. It is stated by the appellant/1st opposite party that the case was posted on 20.12.2017 for the appearance of the opposite parties and on that day the junior advocate attached to their panel lawyer travelled all the way from Ernakulam to Pathanamthitta, but due to heavy traffic he could not reach the district forum, Pathanamthitta when the case was called. By the time he reached the district forum, the district forum has set the 1st opposite party ex-parte. Thereafter even though the counsel mentioned the matter, the district forum was not inclined to accept the prayer. Subsequently the 1st opposite party had preferred I.A 46/2018 before the district forum to set aside the exparte order and the said petition was dismissed by the district forum.
7. Counsel for the appellant submitted that there was no wilful latches or negligence on the part of the appellant/1st opposite party in not appearing before the district forum and an opportunity may be given to the appellant to file version and to adduce evidence in support of their contention and to have a decision of the complaint on merits.
8. Perusing the records it is seen that the appellant has filed a petition to set aside the exparte order before the district forum and the district forum has dismissed the said petition. Perusing the records, we do not find any merit in the submission of the counsel for the appellant regarding the default committed by the appellant/1st opposite party in appearing before the district forum and filing version, after receipt of the notice. However, after perusing the records and the Order of the district forum we consider that an opportunity has to be given to the appellant/1st opposite party to file version and to adduce evidence, if any, to have a decision of the complaint on merits. For that purpose the Order passed by the District Forum has to be set aside and the matter is to be remanded back to the District Forum for fresh disposal.
9. Remission of the case, setting aside the Order of the District Forum can be ordered only on terms directing the appellant/1st opposite party to compensate the injury likely to be caused by the delay in culmination of the proceedings to the 1st respondent/complainant. The appellant has to pay cost of Rs. 15,000/- as a condition precedent for setting aside the exparte order and remission of the case.
At the time of filing of the appeal the appellant has deposited Rs. 25,000/-. The 1st respondent/complainant is permitted to obtain release of the amount of Rs. 15,000/- from that amount, on proper application, to be adjusted/credited towards the amount ordered. Re
Please Login To View The Full Judgment!
lease the balance amount to the appellant, on proper application. In the result, the appeal is allowed. The order passed by the district forum is set aside and the matter is remanded for fresh disposal, after giving opportunity to the appellant/1st opposite party to file version and to adduce evidence, if any, in support of their contention. The district forum shall dispose of the complaint as expeditiously as possible. Parties are directed to suffer their respective costs. Send back the records to the District Forum, forthwith.