M.S. JANARTHANAM. J
1. The jurisdictional facts giving rise to the present action may in brevity be stated for understanding the crux of the issue arising for consideration.
2. P.L.C Lakshmanan and Brothers, Cloth Merchant (complainant) is a proprietory concern. It?s proprietor is one Mr. P.L.C. Lakshmanan.
3. SMR Parcel Service, Pan Transport and Carriers Ltd. (third opposite party) is located at Chennai-600 056. One Mr. S. Ankappan(first opposite party) and one Mr. N.G. Ravichandran(second opposite party) are respectively agents of the third opposite party at Sankarankoil and Ottanchatram.
4. The second opposite party apart from being an agent of the third opposite party, was also running a business in textiles going by the name ?Super Textiles?. The second opposite party approached the complainant to send Lungis for his business through SMR Parcel Service. On 13.09.1997, the complainant sent the requisite parcel through the first opposite party to the second opposite party through the branch of SMR Parcel Service at Ottanchatram. The connected papers and documents, it appears, were sent through the bank. The complainant also paid Rs.200/- as freight charges to the first opposite party.
5. The second opposite party consignee should have to clear the parcel so sent after clearing the documents from the bank by making necessary and requisite payment thereof. The second opposite party being the agent of the third opposite party SMR Parcel Service and also the owner of Super Textiles took delivery of the parcel without clearing the documents from the bank. The complainant was unable to realise the amount of the consignment for pretty long. After two months from the date of despatch of the consignment, it appears, bank returned the document to the complainant. Consequently the complainant sent a letter to the second opposite party on 13.12.1997 to return the parcel to him. The second opposite party kept mum in the sense of making no reply to the complainant. The complainant, in turn, it appears, made a complaint to the third opposite party, the principal of the second opposite party about taking delivery of the consignment without clearing the documents in the bank.
6. The complainant, it appears, received a reply from the third opposite party stating that they were enquiring into the matter. The enquiry promised to be taken by the third opposite party Principal against the second opposite party agent did not yield any result at all.
7. In such a backdrop and setting, there was no other go for the complainant to knock at the doors of the Forum below by the institution of complaint in O.P.No.140/98 for certain reliefs as prayed in the complaint against the opposite parties 1 to 3 on the ground of deficiency in service on their part.
8. The first opposite party remained ex-parte. While the second and third opposite parties contested the matter by filing counters.
9. The Forum below after taking into consideration the materials placed on record, recorded a finding that there was deficiency in service on the part of the second and third opposite parties and consequently directed them to pay a sum of Rs.39,153/- the value of the consignment with interest at 12% per annum from 13.09.1997 till payment and a cost of Rs.500/- giving time for compliance two months from the date of its order which event happened on 29.09.1999 and dismissing the complaint as against the first opposite party.
10. Aggrieved by the order as above, the third opposite party, it appears, filed an appeal in A.P.S.R.No.2365/99 on 08.11.1999. The appeal so filed was returned by the Registry for rectification of certain defects. The return so made, it appears, was taken back by the counsel appearing for the third opposite party on 21.12.2000. Subsequently, it appears, the said appeal had not been re-presented after rectification of the defects as pointed out by the Office.
11. Since the order of the Forum below had not been complied with by the opposite parties 2 & 3, the complainant initiated proceedings by filing an application on 05.01.2000 which was taken as E.P.1/2000 under Section 27 of the Consumer Protection Act, 1986 (for short, ?the Act?). The notice was issued to the opposite parties 2 & 3 impleaded as respondents 1 & 2 in the Execution Proceedings.
12. The second opposite party/first respondent appeared in person. The third opposite party/second respondent without entering appearance in the Execution Proceedings initiated proceedings in writ jurisdiction before the High Court of Judicature, Chennai in W.P.2112/2000 challenging the order of the Forum below in the original action and also filed W.M.P3264/2000 praying for stay of the operation of the order of the Forum below in the original action. The High Court of Judicature, it appears, granted stay of operation of the order in the original action in the W.M.P. so filed. The said Writ Petition and Writ Miscellaneous Petition had been disposed of by the High Court of Judicature by the dismissal of both the Writ Petition and Writ Miscellaneous Petition by its order dated 07.022000. While making the order of dismissals of WP as well as the WMP, the High Court of Judicature directed the third opposite party, who figured as the Petitioner in the Writ Petition to deposit the amount within period of 4 weeks from the date of its order.
13. The third opposite party agitated the matter further and he filed Writ Appeal, which was taken on file by the High Court of Judicature as W.A.No.349/2000. Along with the Writ Appeal, he also filed C.M.P.No.3272/2000 praying for stay of operation of the order of the Forum below till the disposal of the Writ Appeal. Both the Writ Appeal and Civil Miscellaneous Petition were disposed of by way of dismissal by High Court of Judicature by its order dated 09.03.2000 and while doing so, the High Court granted two months time to comply with the order of the Forum below. In the said C.M.P., it appears, stay as prayed for had been granted.
14. The two months time granted by the High Court of Judicature in the Writ Appeal got terminated on 08.05.2000. The third opposite party, it appears, deposited the award amount before the Forum below on 17.05.2000 by filing the necessary application therefor in C.M.P.No.140/2000.
15. Thus there is a delay of 9 days in making the deposit of the amount of award by the Forum below as directed by the High Court.
16. The Forum below passed an order in E.P.No.1/2000 on 9th day of May, 2000 finding the second and third opposite party guilty under section 27 of the Act convicted thereunder and sentenced each of them to undergo Rigorous Imprisonment for a period of one year holding that the non-deposit of the decreetal amount as directed by the High Court of Judicature amount to wilful non-compliance of the order.
17. Aggrieved by the order as above, the third opposite party resorted to the present action, which was taken on file as R.P.33/2000 and admitted only on the question of sentence. Notice has been issued to the complainant and also the second opposite party impleaded as respondents in the Execution Proceedings. The complainant as well as the second opposite party did not enter appearance through a counsel of their choice and they virtually remained absent.
18. We heard the arguments of learned counsel Mr. A.J. Jawab appearing for the Revision Petitioner/third opposite party. The said learned counsel would submit that there was no delay at all in complying with the order of the High court of Judicature in Writ Appeal and therefore, it is that the order of the Forum below in finding the second and third opposite parties guilty under Section 27 of the Act convicting thereunder and sentencing each of them to undergo Rigorous Imprisonment for one year is bad in law. He would further submit notwithstanding the fact that the present action had been admitted only on the question of sentence, there is nothing wrong for this Commission to consider the Revision Petition on merits and pass orders thereof. In elaboration of such a submission what he would state is that the order of the High Court of Judicature in Writ Appeal proceedings as already indicated had been passed on 09.03.2000. He would further state that the High Court while granting two months time to comply with the order of the Forum below does not specifically state as to from which date the period of two months as granted by it is to be reckoned with, i.e. to say as to whether the period of two months is to be reckoned from the date of its order, which event happened on 09.03.2000 or from the date of receipt of the order copy.
19. The third opposite party, he would say, without any delay filed a carbon copy application in SRNo.16525 on 09.03.2000 itself the date on which the Writ Appeal order was passed by the High Court of Judicature. The carbon copy application so made, he would say, was ready on 16.03.2000 and learned counsel appearing for the third opposite party got the carbon copy of the order on 20.03.2000. He would further state that 17th being Friday is a holiday for Bakrit and next two days viz. 18th and 19th being Saturday and Sunday were holidays for High Court and therefore, he was able to get the carbon copy of the order on 20.03.2000.
20. What is further submitted is that if two months period is to be reckoned from the date of its order, the period will get terminated on 08.05.2000 and if the period of two months is to be calculated from the date of receipt of copy of the order, it will get terminated on 19.05.2000. What is further submitted is that in view of the fact that the deposit of the decreetal amount had been made before the Forum below on 17.05.2000, the deposit so made would be very well within time.
21. We are on our part gave anxious consideration to the arguments so projected by the said learned counsel. No doubt true it is that the order of the High Court of Judicature in the Writ Appeal simply granted two months time for making the deposit of the decreetal amount of the Forum below. In such a situation, the normal practice of reckoning the period as granted by the High Court must have to be calculated from the date of its order and not from the date of receipt of the copy of the order. The third opposite party, of course, represented by counsel, it appears, was obsessed with the idea that the deposit of the decreetal amount of the Forum below, if made, within a period of two months from the date of receipt of the copy of the order would be sufficient compliance of the order of the High Court. That sort of an obsession the third opposite party had in making the deposit of the decreetal amount, we rather feel on the facts and in the circumstances of the case, could be construed as a mitigating or ameliorating circumstances, which would be taken into consideration for the reduction of sentence imposed by the Forum below in an appropriate way or fashion.
22. We are to state here that by a cursory glance or glimpse of the provisions as adumbrated under Section 27 of the Act, we are unable to trace or find any element or ingredient of intentional act for the commissioning of the offence as contemplated by the Section. Mere non-compliance or belated compliance amounts to an offence. When the offence is made out either by non-compliance or belated compliance, the District Forum, State Commission or the National Commission as the case may be, is given the necessary and requisite power to sentence the opposite party, who did not comply with the order or complied with the order in a belated fashion in an appropriate way in the sense of such an opposite party being sentenced to a maximum period three years or with fine, which may extend to Rs.10,000/- or with both. The minimum sentence of imprisonment shall not be less than one month and the minimum sentence of fine shall not be less than Rs.2000/-. In the proviso appended therein, the District Forum, State Commission or the National Commission as the case may be, may, if it is satisfied that the circumstances of the case so require, impose a sentence of imprisonment or fine or both, for a term lesser than the minimum term and the amount lesser than the minimum amount, specified in this section.
23. Taking into account the overall circumstances of the case as indicated above, we are of the view that there is a belated compliance of the order by a few days namely 9 days. Such a belated compliance rather occurred, we feel, as a consequence of the obsession, the third opposite party had, in his mind as respects the reckoning of the period of two months time as granted by the High Court of Judicature as indicated earlier. Taking this aspect into consideration, we are of the view that it would not be besides justice to impose a sentence of fine of Rs.100/- on the Revision Petitioner/third opposite party. We accordingly do so by setting aside the sentence of rigorous imprisonment for one year as imposed upon him by the Forum below. To put it more clearly, the sentence of Rigorous imprisonment for one year imposed on third opposite party by the Forum below is set aside and instead he is sentenced to pay a fine of Rs.100/-.
24. The fine so imposed had been paid by the third opposite party into the Head of Account of this Commission namely ?0070-DAS-01-Admn. of Justice- 102 Fine and Penalties AA ? Magisterial ? Fin. 06. SCDRC 0070- D1-102- AA- 06B3 PAO East? and in evidence of the payment of the same he has produced the necessary and requisite challan of State Bank of India, Thousand Lights, Treasury Branch, Chennai.
25. Before parting with the matter, we want to mention that the procedure adopted by the Forum below as respects the amount deposited before it being credited in the Savings Bank Account (SB A/c No.3643) in the name of the President, District Consumer Disputes Redressal Forum, Tirunelveli Kattabomman as well as Chidambaranar District at Tirunelveli does not appear to be proper. In the case on hand, the third opposite party in compliance with the order of the Forum below appeared to have deposited Rs.52,620/- on 17.05.2000 before it by filing an application in CMP.No140/2000. The amount so deposited had been credited in the S.B. Account No.3643 standing in the name of the President as indicated above and this we are able to discern from the xerox copy of the passbook submitted to the Commission by the Forum below for our perusal. In the Execution proceedings, an application for payment out had been taken by the complainant on 12.06.2000 and the Forum below passed an order on the said application on 20.06.2000. The order so passed had been complied with the Registry of the Forum below after a delay of 43 days in the sense of issuing a cheque to the complainant on 02.08.2000 for Rs.52,620/-. The cheque so issued to the complainant had been encashed by him on 05.08.2000, which is discernable from the xerox copy of the passbook submitted to the Commission by the Forum below for our perusal. Thus the amount of Rs.52,620/- deposited by the third opposite party on 17.05.2000 had been in the S.B. Account standing in the name of the President till upto 05.08.2000. That means the decreetal amounts were available with the Bank in the S.B. Account of the President of the Forum below for a period of 81 days. It is not as if the amount available in the S.B. Account is not carrying any interest at all. The decreetal amount deposited with the Forum below must be returned to the successful party with the accrued interest for such deposits. In the case on hand, the mere amount of deposit alone had been paid to the successful party namely the complainant. It is not as if the Forum below adopted this sort of procedure in this case alone; it appears, the Forum below had been adopting this sort of a practice ever since the inception of the functioning of the Forum below. What happened to the interest accrued to various decreetal amounts, we are unable to discern. The President of the Forum below is also directed to submit a report within three months to this Commission as to what had happened to the undisbursed accrued interest in respect of deposits of the decreetal amount of the award being made by the consumer litigant public before the said Forum.
26. This sort of a practice, it appears, is adopted not only by the For
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um below at Tirunelveli, but also certain other Forums namely Forum at Nagercoil, Ooty, etc. This sort of a practice, we deprecate and also order, must have to be stopped forthwith. What the Forum below must have to do in such a situation is that the party who is required to deposit the decreetal amount before the Forum below must have to deposit the amount by way of a Fixed Deposit Receipt in the name of the concerned President, District Consumer Disputes Redressal Forum for a period of one year and in case, the appeal filed before this Commission as against the order of the District Forum is not disposed of within the said period of one year, the concerned District Forum must have to renew the deposit for a further period of six months and thereafter also if the appeal is pending, by way of renewal once in every six months. This sort of a practice had been adopted by the majority of the Forum below in the State excepting the few Forums as indicated above. If this sort of the practice is adopted, the successful party will be entitled to the benefit of the accrued interest on the deposits so made in the sense of the Fixed Deposit Receipts standing in the name of the President of the concerned Forum being discharged in the name of the successful party without any delay after making necessary entries on the bundle. This apart, we also issue a direction that the Fixed Deposit Receipts must have to be kept in the safe custody and necessary entries are to be made in the concerned case bundle and in the Register maintained for the said purpose. 27. We also issue a direction to the Registry to send a copy of this order to all the District Fora in the State for compliance. 28. In fine, the Revision Petition is allowed to the extent as indicated above and it shall stand dismissed in other respects. No costs.