State Consumer Disputes Redressal Commission
Padmavathy Srinivasan And Anr vs Lufthansa German Airlines on 3 July, 2023
FA/328/2015 DOD:03.07.2023
PADMAVATHY SRINIVASAN & ANR.VS.LUFTHANASA GERMAN AIRLINES
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution:04.07.2015
Date of Hearing :10.04.2023
Date of Decision :03.07.2023
FIRST APPEAL NO. 328/2015
IN THE MATTER OF
1.MS. PADMAVATHY SRINIVASAN D/O LATE MR. V. SRINIVASAN R/O : 560 MANDAKINI ENCLAVE, NEW DELHI -110019
2. MRS. KUMUDI SHARMA W/O MR. S.K.SHARMA R/O :1/147, JASOLA VIHAR, NEW DELHI ...APPLICANTS/APPELLANTS VERSUS M/S. LUFTHANASA GERMAN AIRLINES 56, JANPATH, (AS PER IMPUGNED ORDER) NEW DELHI-110001 12th FLOOR, DLF BUILDING NO.10, TOWER B, DLF CITY, PHASE-II, (AS PER FRESH MEMO DATED 18.01.2016) GURGAON122002, HARYANA.
OFFICE AT:- 2ND FLOOR, (AS PER FRESH MEMO DATED 05.12.2019) NOVOTEL PULLMAN HOTEL, COMMERCIAL BLOCK, DELHI AEROCITY, NEAR IGI AIRPORT, NEW DELHI-110037.
....NON-APPLICANT/ RESPONDENT CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) HON'BLE MS. PINKI, MEMBER (JUDICIAL) HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL) DISMISSED Page 1 of 8 FA/328/2015 DOD:03.07.2023 PADMAVATHY SRINIVASAN & ANR.VS.LUFTHANASA GERMAN AIRLINES Present: Mr. S. Vishvanathan, elder brother of appellant No.1 alongwith Mr. Chandrachur Bhattacharya, counsel of the appellants.
Mr. Shaantan Devansh, counsel for the non- applicant/respondent.
PER: HON'BLE MS. PINKI, MEMBER (JUDICIAL)
1. The present appeal has been filed on 04.07.2015 challenging the impugned order dated 18.02.2015 vide which Complaint Case No.156/2006 was allowed by the District Consumer Disputes Redressal Commission-VI (New District ), M- Block, 1 st Floor, Vikas-Bhawan, I. P. Estate, New Delhi-110002
2. This order will dispose off an application bearing IA No.765/2023 seeking condonation of delay in filing the appeal, filed alongwith the appeal. Affidavit of appellant No.1 has been filed alongwith this application as well as main appeal.
3. Reply to the application has also been filed.
4. We have given considerable thought to the submissions put forth by either of the parties. The record has been carefully and thoroughly perused.
5. The application has been moved Section 15 of the Consumer Protection Act, 1986.
6. Application for condonation of delay has been filed on various grounds. Para No.3 to 7 and Para No.9 of the application read as under:
"3. That at the outset the Appellant respectfully states that the judgment was reserved by the Hon'ble District Commission after the oral arguments in May, 2013.
4. That after this the counsel of the appellants made several visits to the learned District Forum to find out if the judgment had been delivered. But for a long period of time the judgment was kept reserved and judgment had not been pronounced for an unduly long period of time.
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5. That thereafter suddenly after a period of almost 21 months the judgment was finally pronounced on 18.02.2015.
6. That the moment the appellant got to know through the website of the commission, that the judgment had been pronounced on 18.02.2015, it applied for a certified copy of the judgment on 08.06.2015 and got the judgment on the same date. And the Appellant is filing this appeal within a period of 30 days from 08.06.2015.
7. That it is also worth mentioning that the judgment dated 18.02.2015 states that a free copy of the judgment should be sent to the appellants. But appellants never got the judgment. It got to know of the judgment through the website of the commission and immediately applied for it.
8. .......
9. In fact the appellant got the certified copy of the order on 08.06.2015 and immediately, within a period of one month, the Appellant is filing this appeal."
7. Reply to the said application has been filed by the Respondent inter-alia contending that the present application is liable to be dismissed with cost.
8. To adjudicate this issue, we deem it appropriate to refer to Section 15 of the Consumer Protection Act, 1986 which provides as under:-
"Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed.
Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:
[Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the DISMISSED Page 3 of 8 FA/328/2015 DOD:03.07.2023 PADMAVATHY SRINIVASAN & ANR.VS.LUFTHANASA GERMAN AIRLINES prescribed manner fifty per cent. of the amount or rupees thirty-five thousand, whichever is less]"
9. A perusal of the aforesaid statutory position reflects that the appeal against an order should be preferred within a period of thirty days from the date of impugned judgment. On perusal of record before us, it is clear that the impugned order was pronounced on 18.02.2015 and the present appeal was filed on 04.07.2015 i.e. after a delay of 106 days.
10. In order to condone the delay, the Appellants have to satisfy this Commission that there was sufficient cause for preferring the appeal after the stipulated period. The term 'sufficient cause' has been explained by the Apex Court in Basawaraj and Ors. vs. The Spl. Land Acquisition Officer reported in AIR 2014 SC 746. The relevant paras of the aforesaid judgment are reproduced as under:-
"9. Sufficient cause is the cause for which Defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause"
means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is DISMISSED Page 4 of 8 FA/328/2015 DOD:03.07.2023 PADMAVATHY SRINIVASAN & ANR.VS.LUFTHANASA GERMAN AIRLINES furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose."
11. We also deem it appropriate to refer to Anil Kumar Sharma vs. United Indian Insurance Co. Ltd. and Ors. Reported in IV(2015)CPJ453(NC), wherein the Hon'ble NCDRC held as under:-
"12. .........we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon'ble Supreme Court in a recent judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes, will get defeated if the appeals and revisions, which are highly belated are entertained."
12. We further deem it appropriate to refer to Lingeswaran Etc. Versus Thirunagalingam in Special Leave to Appeal (C) Nos.2054-2055/2022 decided on 25.02.2022, wherein the Hon'ble Supreme Court held as under: -
"5. We are in complete agreement with the view taken by the High Court. Once it was found even by the learned trial Court that delay has not been properly explained and even there are no merits in the application for condonation of delay, thereafter, the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the learned trial Court that, even after finding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to condone the delay would be giving a premium to a person who fails to explain the delay and who is guilty of delay and laches. At DISMISSED Page 5 of 8 FA/328/2015 DOD:03.07.2023 PADMAVATHY SRINIVASAN & ANR.VS.LUFTHANASA GERMAN AIRLINES this stage, the decision of this Court in the case of PopatBahiruGoverdhane v. Land Acquisition Officer, reported in (2013) 10 SCC 765 is required to be referred to. In the said decision, it is observed and held that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.
13. From the aforesaid dicta of the Hon'ble Apex Court and the Hon'ble National Commission, it is clear that 'sufficient cause' means that the party should not have acted in a negligent manner or there was a want of bona fide on its part and the applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay.
14. Reverting to the material available before us, we find that the impugned order was passed on 18.02.2015 and the period of limitation starts from the date of order which had expired on 20.03.2015. However, the appellants have failed to file the present appeal within the stipulated period and the reason for delay stated in the application are that the matter was reserved in the month of May, 2013 which was pronounced on 18.02.2015 after 21 months, which came to the knowledge of the Appellant through the website of the Commission; when the appellants did not receive free copy of the impugned order, the certified copy of the same was applied on 08.06.2015 which was received on the same day and the appeal was filed within a period of one month from the date of receipt of the impugned order.
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15. It is pertinent to mention here that the Appellants have not mentioned as how much is the delay in filing the present appeal. Even, affidavit of appellant No.2 has not been filed.
16. The other question for consideration before us is whether the time period between the date of impugned order and the date on which the application was made to get the certified copy is to be excluded from computing the period of limitation or not.
17. To resolve this, we deem it appropriate to refer to Section 12 of The Limitation Act, 1963, which is as follows:
"12. Exclusion of time in legal proceedings.--
(1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.
(2) In computing the period of limitation for an appeal or an application for leave to appeal or or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. (3) Where a decree or order is appealed from or sought to be revised or reviewed, or where is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment shall also be excluded.
(4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.
Explanation.--In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded."
18. Bare perusal of the above statutory position reflects that the period commencing from the date on which the applicant files an application to obtain certified copy till the date when he receives DISMISSED Page 7 of 8 FA/328/2015 DOD:03.07.2023 PADMAVATHY SRINIVASAN & ANR.VS.LUFTHANASA GERMAN AIRLINES the certified copy has to be excluded from computing the period of limitation.
19. In the present case, the Appellants have stated that the copy of the impugned order was received by them on 08.06.2015. In terms of the Section 15 of the Act, the appeal should have been filed by 20.03.2015, however, the appeal is filed on 04.07.2015. Therefore, there is delay of 106 days, which delay is unexplained. Even certified copy has been applied after expiry of period of limitation of thirty days. The appellants have not even mentioned the specific date when they came to know about the pronouncement of the impugned order.
20. Thus, having regard to the statutory position discussed in para supra and the facts of the case, the applicant/appellants have failed to show any sufficient cause for the delay in filing the present appeal. Therefore, the application filed by the appellants seeking condonation of delay cannot be admitted and accordingly, the same is dismissed on the above grounds.
21. Consequently, the present appeal filed beyond the statutory period also stands dismissed. However, in the facts of the case, there shall be no order as to cost.
22. File be consigned to record room.
JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) PINKI MEMBER (JUDICIAL) J.P. AGRAWAL MEMBER (GENERAL) Pronounced on 03.07.2023 DISMISSED Page 8 of 8