STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SECTOR-37-A, DAKSHIN MARG, CHANDIGARH No. SCURC/PB/Judgment/17! 2o Ben) 140 Dated 4 )rp3 M/s Bharti Airtel Company (also known as Bharti Airtel Ltd.) a Company registered under the Companies Act, 1956, having its Circle Office at Plot No.21, Rajiv Gandhi, IT Park, Chandigarh, ret its __ Authorized He meseneayg Mr. Pushkal ean Subject: Certified copy of Judgment. Please find enclosed herewith certified copy of order in Case bf Oe sils__ym (Absence fav i /Is. tera d [Bret Llores State Consumer Disputes Redressal Commission, on Be : peo You are requested to collect the extra sets filed by you in the above referred case within 30 days. In case you do not collect the extra sets within 30 days, these sets will be weeded out under Regulation 20 ( Preservation of Records’ of Consumer Protection Regulations, 208@ « ofa : SUPERINTENDENT LaysfedSTATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH, First Appeal No.950 of 2022 Date of institution : 07.11.2022 Date of decision; 17.05.2023 M/s Bharti Airtel Company (also known as Bharti Airtel Ltd.) a Company registered under the Companies Act, 1956, having its Circle Office at Plot No.21, Rajiv Gandhi, IT Park, Chandigarh, through its Authorized Representative Mr. Pushkal Chauhan «» AppellantOP No.2 Versus ‘J Sumit Kumar son of Sh. Madan Lal, Resident of H.No. 36, Ward No.13, Seven City, Samana, Tehsil Samana, District Patiala. . Respondent/Complainant 2. Jai Shri Ram Enterprises, Garg Plaza Market, Jakhal Road. Patran, Tehsil Patran, District Patiala through its Proprietor/Authorized Person Ajay Kumar. ..Performa Respondent/OP No.1 First Appeal under Section 41 of the Consumer Protection: order dated 26:07: District Consyayief Commission, Say ru Quorum:- he Hon’ble Mrs. Justice Daya chaukiary, Ms. Simarjot Kaur, Memé So & 1) Whether Reporters of the Newspapers may be allowed to see the Judgment? YesiNo 2) To be referred to the Reporters or not? Yes/No 3) Whether judgment should be reported eee in the Digest? s/No Present:- Sh. Abhishek Sharma, Advocate None Service dispensed with vide order dated 03.01.2023 For the appellant For respondent No.1 For respondent No.2 :First Appeal No.950 of 2022 2 JUSTICE DAYA CHAUDHARY. PRESIDENT SREB ATA CHAUDHARY, PRESIDENT AppelianOP No.2 i.e. M/s Bharti Airtel Company (also known as Bharti Airtel Ltd ) has filed the present appeal under Section 41 of the Consumer Protection Act, 2019 to challenge the order dated 26.07.2022 passed by the District Consumer Disputes Redressal Commission, Sangrur (in short, “the District Commission”), whereby the complaint filed by respondent No.1/complainant Sumit Kumar was Parily allowed. The relevant portion of order dated 26.07.2022 passed by the District Commission as mentioned in Para-8 is reproduced as under: 6. In view of our above alscussion, we allow the complaint partly and direct OP number 2 to restore the mobile numbers ie. 98156. 12345 and 98159-12345 of the complainant. We further direct OP number 2 to pay to the complainant an amount of Rs.20,000/. 2s compensation for mental tension, agony and harassment and an amount of Rs.8,000/- as litigation expenses. This order be complied with within a period of 60 days of receipt of copy of this order.” Commission. @ 3 Briefly, the facts of the case as ade out by respondent No.t/complainant in the complaint filed by him before the District Commission are that he purchased postpaid Sim Cards bearing Nos.98158-12345 and 98159-12345 from appellanvOP No.2. Said connections were vanity numbers and the same were being subscribed for a premium of %5,920/- per connection after a discountFirst Appeal No.950 of 2022 3 of 80% for the original cost, which was 225,000/- per connection. Further it was mentioned that the complainant had deposited an amount of %6,150/- per connection, which included the activation charges. Thereafter, said numbers were activated in the name of the complainant by the Company. Further it was mentioned that said numbers were circulated by the complainant to his clients and were also used for the Purpose of his business. Subsequently, those numbers were disconnected in the month of March, 2018 due to which the complainant had suffered huge loss 4 The complaint was filed before the District. Commission th the prayer for issuance of directions to the OPs to restore the connections of said numbers and also to Pay compensation of %15,00,000/- on account of damages and %5,100/- towards litigation expenses. 5. Notices were issued by the Distris Pestitsiesion to the OPs. However, OP No.1 did not appdat/ befére> thd: “District f fi Commission despite service and he was prog ded ex parte. OP No.2 appeared through counsel Sh. Kulwant Singh. Sidhu on 19 03.2019 and also filed his Memo of Appearance. However, meine the Power of Attorney nor written reply was filed on behalf of OP No.2 and as such the defence of OP No.2 was struck off by the District Commission vide order dated 12.07.2019,First Appeal No.950 of 2022 6 Said complaint was partly allowed by the District Commission vide order dated 26.07.2022 and OP No.2 was directed to restore the mobile Nos.98158-12345 and 98159-12345 of the complainant and also to pay an amount of €20,000/- as compensation for causing mental tension, agony and harassment to the complainant and %5,000/- as litigation expenses. Said order was to be complied within a period of 60 days from the date of receipt of copy of the order. i Said order dated 26.07.2022 passed by the District Commission has been challenged by the appellanvOP No.2 by way of filing the present appeal by raising a number of arguments. 8 There was a delay of $4 days in filing of the appeal. Misc Application No.950 of 2022 was filed for condonation of delay, which was supported by an affidavit. Said application was allowed vide order dated 11.11.2022 and the delay in filing of the appeal was condoned S Mr. Abhishek Sharma, learned counsel for the 2ppellanlOP No.2 has submitted that the ordér passed by District Commission is not only illegal but arbitrary amid unjust and tSbme is against the principles of natural justice. The impugnéd-order’s liable to be set aside only on the ground that the District’Commigsion while passing the impugned order has failed to comply with the principles of natural justice, as no opportunity of being heard was given to the appellant Company to contest the case on merits. The defence of the appeliant was wrongly struck off by the District Commission, whereasFirst Appeal No.960 of 2022 5 the Company was duly represented through an Advocate but his briefffile was misplaced and as such he could not defend the case of the Company. He has further submitted that the District Commission while passing the impugned order has not taken into consideration the material fact that the complainant had himself alleged in the complaint that the mobile numbers in dispute were being circulated by the complainant for the Purpose of his business and those numbers were used for commercial Purpose by the complainant and as such, the complaint was not maintainable before the District. Commission Learned counsel has further submitted that the District Commission has directed the appellant Company to restore the mobile numbers but the said numbers were disconnected much earlier in the month of March, 2018 and said numbers were allotted in the name of some other persons and restoration of those very numbers was not practically possible. Learned counsel has also~submitted that the District Commission has also not taken into! consideration -shaterial fact that the persons, to whom those numbers were allotted, were not impleaded as parties and in the absence thereof, the restoration of the said numbers in the name of the complainant was not legally sustainable, as a vested right had accrued in favour of those persons. Learned counsel has further submitted that the District Commission has also ignored another material fact that in the absence of any interim order being passed by the District Commission in favour of theFirst Appeal No.950 of 2022 complainant at the time of filing of the complaint, the appellant Company was not Tequired to protect/preserve the numbers from allocating the same in favour of some other customers. The persons, to whom said numbers were allocated, have been using those numbers for the last 4 and a half years and now to restore those numbers in the name of the complainant, those persons would be prejudiced. This aspect of the case has also not been considered by the District Commission. Learned counsel has further submitted that counsel representing the appellanttOP No.2 before the District Commission could not file the reply, as his brief/file was misplaced in the local office of the appellant Company. At the end, learned counsel nas submitted that had the District Commission given an opportunity to appelianYOP No.2 to present his case, the situation could have been totally different. Respondent No.t/complainant has claimed the compensation in the prayer clause as made in the complaint without mentioning any averment in the complaint: with regard to any such loss, which has been caused to him iB account of any act of ‘deficiency in service! or ‘unfair trade practice’ ce the part of the appellant. Accordingly, in the absence of such averment, the order passed by the District Commission is liable to be set aside. 10 None has appeared on behalf of respondent No.1/complainant despite service. Service of tespondent No.2/OP No.1 was dispensed with vide order dated 03.01.2023.First Appeal No.950 of 2022 7 11 We have heard the arguments raised by learned counsel for the appelian¥OP No.2. We have also carefully perused the impugned order passed by the District Commission and all other documents available on the file. 12, On perusal of the impugned order passed by the District Commission, it is apparent as mentioned in Para-3 that OP No.1 did not put his appearance before the District Commission despite service and he was proceeded against ex Parte. In Para-4 of the impugned order, it has been mentioned that OP No.2 (now appellant) had appeared through counsel Sh, Kulwant Singh Sidhu on 19.03.2019 and on that day, he had filed his Memo of Appearance but thereafter, neither the Power of Attorney nor the written reply on behalf of OP No.2 was filed. As such, the defence of appellant/OP No.2 was struck off by the District Commission vide order dated 12.07.2019. In the absence of OP No.2, neither any reply to the complaint was filed nor any decument/evidence on behalf of OP No.2 was made available before the District Commission. The only evidence produced ‘by the complainant was before the District Commission and the impugned order dated 26.07.2022 was passed at the back of the appellanvOP No.2. The reply and evidence on behalf of OP No.2 was necessary for reaching to the right conclusion. A plea has also been taken by the appellant in the arguments that the counsel representing the appelianvOP No.2 before the District Commission could not file theFirst Appeal No.950 of 2022 8 Fitst Appeal No.850 of 2022 reply, as his brief/file was misplaced in the local office of the appellant Company. 13, Itis relevant to mention here that the defence of OP No.2 Was struck off vide order dated 12.07.2019 and the complaint was Gecided vide impugned order dated 26.07.2022. The appellanviOp No.2 could have challenged the order dated 12.07 2019 immediately after passing of said order but no efforts were made by the appellant to challenge the said order. The appellant has challenged only the order dated 26.07.2022 and that too after a period of more than 3 years from the date of passing the order on 19.07.2019, whereby the defence of OP No.2 was struck off. Confronted with this situation, learned counsel for the appellant has submitted that the appellant is ready to compensate respondent No. t/complainant, in case an G8 "As AN tigpach granted to OP No.2 to put up its defence/evidence bets Commission, which is necessary for reaching to the righ conclusion, it $f 14 It is also relevant to mention here that th Gong ye Commissions/Courts and quasi Judicial Tribunals have ay. set up with the sole purpose of dispensing justice and the cases are required be decided on merits. A party, which claims to have a substantial right ang requires adjudication by a Court of law, should not be denied the opportunity of putting up its case as well as hearing merely on technical grounds.First Appeal No.950 of 2022 9 15, The power of the Court to set aside ex parte order can be exercised by imposing costs and by putting certain conditions as is spelled out from the expression “upon such terms as the Court directs as to costs or otherwise”, The Hon'ble Supreme Court of India in judgment of case “G.P, Srivastava Vs. Shri R.K, Raizada & others” Special Leave Petition (Civil)17942-43 of 1999, decided on 93.03.2000 has held as under:- 16. “Even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex-parte decree set aside on such other terms and conditions as were deemed proper by the Trial Court. On account of the unrealistic and technical epproach adopted by the courts, the litigation be en the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the appellant. defendant is allowed Opportunity fo prove his case within a reasonable time. Under the circumstances, the appeal is allowed by setting aside the order of the High Court and of the Trial Court. The ex-parte Ju s ee decree passed against the appellant is set aside ony receipt of the copy of this order.” In view of facts as well'as provisions‘discussed above and also the judgment as mentioned above and also in the interest of Justice to prevent the miscarriage of justice and also to meet the endsFirst Appeal No.950 of 2022 of justice, one opportunity is required to be granted to the appellant(OP. No.2 to put up its case before the District Commission by setting aside tne impugned order dated 26.07.2022 but subject to Payment of reasonable costs just to compensate the complainant. Otherwise also, the natural justice demands that no one should be left unheard and adequate opportunity is required to be granted to the parties to the case. a7 Accordingly, the appeal is allowed and the impugned order dated 26.07.2022 passed by the District Commission is set aside but subject to costs of 220,000/-, out of which an amount of %10,000/- is to be paid to the respondent No.4/complainant and the remaining amount of %10,000/- is to be deposited in the Consumer Legal Aid Account of this Commission. 18. The case is remanded to the District Commission with the direction to provide adequate opportunity to the appellantiOP No.2 to file its written reply and to lead evidence in support of its the appellant. Thereafter, the case shall be decided. aft merits after giving adequate Opportunity to the appellant and respondent No.1 to raise arguments in support of their respective contentions. The District Commission shall make all efforts toFirst Appeal No.950 of 2022 ul decide the case on merits within @ period preferably not more than three months from the date of receipt of certified copy of the order, 19. The appellanvOP No.2 through counsel is directed to appear before the District Commission on 06.07.2023, None has appeared on behalf of respondent No.1 despite service. So, the District Commission shail procure the presence of responcent No. 1/complainant by issuing notice. 20. It is made clear that respondent No.2/OP No.1 was ex parte before the District Commission. In the appeal, the service of respondent No.2/OP No.1 was dispensed with. Respondent No.2/OP No.1 has not filed any appeal against the impugned order and as such, the ex parte proceeding initiated against OP No.1 are not set aside. 21 Record of the District Commission be returned forthwith, 22, Since the main case has been disposed of, so all the ingly disposed pending Miscellaneous Applications, if any, are aceore of. 23, The appellant had deposited a sum of €42,500/- at the time of filing of the appeal. Out of said amount, an amount. of %40,000/- be deposited in the Consumer Legal Aid Account of thie Commision towards part of costs imposed vide this order. The remaining amount, along with interest which has accrued on total amount of 212,500/-, if any, shall be remitted by the Registry to the District CommissionFirst Appeal No.950 of 2022 12 forthwith. The District Commission shall release the said amount to respondent No. 1/complainant towards part of costs imposed vide this order and the remaining amount of costs shall be paid by appellantiOP No.2 to the complainant before the District Commission. 24, The appeal could not be decided within the statutory period due to heavy pendency of court cases. Fave ee ow Sdi- President | Sd/- \ Member May 17, 2023, 1 erento (Gurmeet S} ed to be Ue Cu} _octiti Superintend: State Ci yminissions F SHANDIGARE Lays )*3