At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
By, THE HONOURABLE MR. T.S.P. MOOSATH
By, JUDICIAL MEMBER & THE HONOURABLE MRS. A. BEENA KUMARI
For the Appearing Parties: Lal K. Joseph, R. Suja Madhav, Shibili Naha, Sreevaraham N.G. Mahesh, Advocates.
Common Judgment: (T.S.P. Moosath: Judicial Member)
Both these appeals arose out of the order passed by the Consumer Disputes Redressal Forum, Malappuram, in short the District Forum, by which the opposite parties 1 to 4 were directed to replace the vehicle of the complainant by a new model, 2013 model of same vehicle to the complainant and if the same model is not available to provide a new model vehicle and complainant shall pay the difference of value between 2013 model and 2016 model. The opposite parties were also directed to pay Rs. 25,000/- as compensation and Rs. 10,000/- as cost to the complainant. Opposite parties 1 to 3 have preferred Appeal No. 638/2016 and the 4th opposite party has filed Appeal No. 723/2016 against the order passed by the District Forum.
2. According to the complainant he purchased an Ertiga LDI car from the 1st opposite party. The 1st opposite party made him believe that the vehicle is of 2013 model and under that belief he purchased the car. Later he came to know that the vehicle supplied to him was of 2012 model. So he filed the complaint to direct the opposite parties to replace the vehicle with a new vehicle. Opposite parties 1 to 3 filed version denying the allegation of the complainant. 4th opposite party was set ex-parte.
3. The complainant was examined as PW1 and Exts. A1 to A5 were marked on his side. DW1 was examined and Exts. B1 & B2 were marked on the side of the opposite parties. The report of the commissioner was marked as Ext. C1. Considering the evidence adduced by the parties and hearing both sides the District Forum has passed the impugned order. Aggrieved by the order passed by the District Forum opposite parties 1 to 3 have filed Appeal No. 638/2016 and 4th opposite party has filed Appeal No. 723/2016.
4. Heard both sides. Perused the records.
5. The counsel for the appellant in Appeal No. 723/2016 submitted that on receipt of the notice from the District Forum they had sent a written version by post to the District Forum. But the District Forum has not considered the contentions raised by them in their version. Along with the appeal memorandum the appellant has produced a copy of the version alleged to have sent by them to the District Forum. On a perusal of the records of the District Forum it can be seen that it does not contain the version alleged to have sent by the appellant/4th opposite party to the District Forum. In the order sheet/proceeding paper of the District Forum on 11.05.2015 it is written as ‘complainant represented, opposite parties 1 to 3 also represented. 4th opposite party is served, called absent’. So there is no document to show that the appellant/4th opposite party had sent version to the District Forum by post. Counsel for the appellant submitted that an opportunity may be given to them to contest the case and to adduce evidence in support of their contention. Even though we are not satisfied by the reason/explanation stated by the appellant for not presenting their contentions properly and adducing evidence in support of their contentions before the District Forum, we consider that, for the interest of justice, an opportunity has to be given to the appellant/4th opposite party to file version, raising their contentions and to adduce evidence in support of their contentions, to have a decision of the complaint on merits, considering the contentions of 4th opposite party/appellant. For that purpose the order passed by the District Forum is to be set aside and the matter is to be remanded to the District Forum, for fresh disposal.
6. Remission of the case, setting aside the order of the District Forum can be allowed only on terms, directing the appellant to pay costs to the 1st respondent/complainant to compensate the injury that is likely to be caused to him due to the delay in culmination of the proceedings. Appellant shall pay cost of Rs. 10,000/- to the 1st respondent/complainant.
At the time of filing of the appeal the appellant has deposited Rs. 25,000/-. 1st respondent/complainant is permitted to obtain release of the amount of Rs. 10,000/- ordered as costs from that amount, on filing proper application. Release the balance amount to the appellant, on filing proper application.
In the result, Appeal No. 723/2016 is allowed and the order passed by the District Forum is set aside. The matter is remanded to the District Forum for fresh disposal, after giving opportunity to the appellant/4th opposite party to file version raising their contentions and to adduce evidence, if any. The District Forum shall dispose of the complaint afresh within a period of 6 months from the date of receipt of copy of the records from this Commission.
Since Appeal No. 723/2016 filed by the 4th opposite party in the complaint, is allowed, setting aside the order of the District Forum and remitting the complaint to the District Forum for fresh disposal after considering the contentions of the appellant in that appeal/4th opposite party, we consider that it is not just and fair/proper to co
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nsider Appeal No. 638/2016 on merits at this stage, especially, in the copy of the version produced by the appellant in Appeal No. 723/2016 alleged to have sent by them to the District Forum, they have raised contention regarding maintainability of the complaint. Hence Appeal No. 638/2016 is disposed of, granting liberty to the appellants to file fresh appeal, if they require, against the order to be passed afresh by the District Forum. Release the amount of Rs. 17,500/- deposited by the appellants at the time of filing the appeal, to them, on proper application.