Jagdish Singh Chauhan vs Ram Charan & 2 Ors

Deepa Sharma, Presiding Member

Although the Registry had issued notice to respondent No.2 but the record shows that the name of respondent No.2 has been deleted from the array of respondents. Respondent No.1 is already ex-parte. Therefore, notice need not be issued to respondent No.1.

The present revision petition is filed against the order of the State Commission dated 15.12.2015 in FA/49/2011 of the petitioner (hereinafter called as "the complainant.") He filed the appeal against the order dated 12.1.2011 of the District Forum in complaint No.484/08, the number which was given after restoration of the initial complaint filed by the complainant which was registered as complaint No.858/07. The complainant filed the complaint against three persons, namely, Mongia Communication, Om Ujala Communication and Marketing Head, Nokia Delhi claiming the following directions: -

"i. Opposite party No.1 to refund the complainant Rs.12,099/- the payment consumer complainant has already made to them with admissible interest forthwith;

ii. Opposite parties to pay the complainant exemplary punitive damages for the physical, financial and mental agony, harassment and humiliation he had suffered before his clients and staff at the hands of an unscrupulous and uncouth provider of service besides loss & damage to his profession for want of service."

All the opposite parties were duly served but they did not appear and contest the case and were proceeded ex-parte. The affidavit of evidence was filed by the complainant. After hearing the arguments, the District Forum issued following directions: -

"4. We have heard the arguments of the complainant and gone through the record carefully. The record shows that complainant has filed photocopies of the receipt dated 01.04.07 of Rs.11,300/- for purchase of mobile in question from OP-1 and also file copy of complaint dated 28.5.07, 5.7.07 and 21.10.07. The complainant has filed job sheet dated 20.10.07 and also filed a receipt dated 28.5.07 for cost of repair of the mobile of Rs.799/-. On perusal of the job sheet dated 20.10.07, the hand set was given for repair but there is no any evidence on the record whether it was repaired and delivered to the complainant. The column of the job sheet for satisfaction of the customer is blank. The affidavit filed by the complainant is not contradicted by anybody. Hence, there is reason to believe the version of the complainant upto some extent but the complainant is not entitled for refund of the price of the mobile nor he is entitled to replacement of the mobile because he has not made party the manufacturer company NOKIA of the mobile in question. He has only made party to the dealer and service centre. Therefore, the complainant is only entitled for compensation for physical and mental harassment in repairing of the mobile as well as the cost of repair of Rs.799/- from the OPs alongwith litigation charges.

Thus, as we have discussed above, there is some force in the complaint which may be allowed partly.

We direct the OP-1, OP-2 & OP-3 jointly or severally to pay of Rs.799/- to the complainant the cost of repair charges of the mobile along with Rs.3,000/- compensation for his physical and mental harassment and Rs.1500/- cost of litigation. If the mobile in question is in possession of any of the OPs, they shall deliver to the complainant."

Dissatisfied vide this direction, the complainant filed the appeal. His appeal was dismissed by the State Commission and the State Commission held as under: -

"4. A careful perusal of the complaint shows that Nokia has been arraigned through OP-1 i.e. the dealer. During the course of arguments, the complainant/appellant herein submitted that he had during the course of trial in the District Forum filed an amended memo of parties, disclosing the complete address of Nokia. Be that as it may, it is not the case of the complainant/appellant herein that the instrument had a manufacturing defect. Dealer and the repairer both had furnished a detailed reply to the complaint and the matter did not require the presence of the manufacturer Nokia for effective adjudication. We, therefore, do not find any merit in the plea of the complainant/appellant herein that the presence of the Nokia in the District Forum would have made the things more clear. We, therefore, do not find any illegality or infirmity in the orders passed by the Ld. District Forum. Amount of compensation of Rs.3000/- awarded to the complainant/appellant is also not inadequate. Appeal is, therefore, dismissed.

Aggrieved by the impugned order, the present revision petition has been filed. Respondents No.1 is absent despite service. Name of respondent No.2 has been deleted from the array of the respondents. However, respondent No.3 has appeared and contended that the name of respondent No.3 has been wrongly included in the array of respondents. It is submitted that the petitioner had not made respondent No.3 a party in his complaint and that respondent No.3 was not party before the State Commission. It is submitted that the petitioner cannot include a new party at the stage of revision petition.

It is submitted that on this ground alone, the revision petition being defective is liable to be dismissed. The complainant who is present in person and is also an advocate by profession argues that he had made respondent No.3 i.e. Nokia India Pvt. Ltd. a party in his complaint and also in his appeal as respondent No.3 and therefore it cannot be said that Nokia India Pvt. Ltd. had been included for the first time and the revision petition is liable to be dismissed on this ground.

I have gone through the complaint filed by the petitioner before the District Forum and in his complaint he has given the description of opposite party No.3 as "Marketing Head, Nokia, Delhi through OP No.1." This expression clearly shows that opposite party No.3 was not made a party in independent capacity but only as Marketing Head, Nokia through OP-1. Nokia India Pvt. Ltd. who had been made a party in the present revision petition as respondent No.3, has not been made a party by the petitioner in his complaint and this fact is also noted by the District Forum in its order wherein it is clearly stated that the manufacturing company i.e. Nokia India Pvt. Ltd. had not been made a party to the complaint. The petitioner in order to overcome this deficiency in his complaint included/added respondent No.3 in his appeal as "Marketing Head, Nokia India Pvt. Ltd." This he had done without the permission of the State Commission. It is also clear from the prayers in the complaint that no relief has been claimed by the petitioner against OP-3, which was the Marketing Head, Nokia Delhi. In the prayer clause he had sought refund only from OP-1. His relief is against OP-1 alone as is clear from the prayer clause of his complaint. The petitioner cannot therefore include a new respondent in the revision petition. It is also apparent that there is a concurrent finding of the facts that no manufacturing defects had been pointed out or proved by the petitioner by leading any evidence. In fact, in his complaint also he had nowhere mentioned that the hand set was having any manufacturing defect. In view of these facts, there is no illegality or infirmity in the impugned order.

Present revision petition has no merit. The same is dismissed with no order as to cost.