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[Cites 8, Cited by 0]

State Consumer Disputes Redressal Commission

Gopender Mohan Gupta vs Uber India on 31 May, 2023

FA/63/2022                                                          DOD:31.05.2023
                         GOPENDER MOHAN GUPTA VS. UBER INDIA


       IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
                          COMMISSION

                                           Date of Institution:01.03.2022
                                           Date of Hearing :21.04.2023
                                           Date of Decision :31.05.2023

                         FIRST APPEAL NO. 63/2022

  IN THE MATTER OF

  MR. GOPENDER MOHAN GUPTA
  S/O LATE MR. R.M.GUPTA
  R/O HOUSE NO. 61,
  PASCHIM VIHAR EXTENSION,
  NEW DELHI-110063
                                                 ...APPLICANT/APPELLANT
                           VERSUS
  UBER INDIA
  UBER HEAD OFFICE,
  SCO-300, SECTOR 29, GURUGRAM,
  HARYANA 122022
  (Email: [email protected])
                             ....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)

  Present:    Appellant in person alongwith Ms. Nidhi Gupta, counsel.
              Mr. Siddharth Agarwal, counsel for the respondent.

  PER: HON'BLE MS. PINKI, MEMBER (JUDICIAL)

  1.

The present appeal has been filed on 01.03.2022 (online) challenging the impugned order dated 05.04.2021 vide which Complaint Case No.73/2021 was returned to the Complainant/ Appellant by the District Consumer Disputes Redressal Commission-VI (New Delhi), 'M' Block 1st Floor , Vikas Bhawan, I.P. Estate, New Delhi-110002.

ALLOWED Page 1 of 8

FA/63/2022 DOD:31.05.2023 GOPENDER MOHAN GUPTA VS. UBER INDIA

2. This order will dispose off an application bearing IA No.538/2022 seeking condonation of delay in filing the appeal, filed alongwith the appeal. Affidavit of the appellant has been filed alongwith this application.

3. The record has been carefully and thoroughly perused.

4. The application has been moved without any provision of law.

However, it is being considered under Section 41 of the Consumer Protection Act, 2019 as it is arising out of Complaint Case No.73/2021.

5. Application for condonation of delay has been filed on various grounds. Para No.1 to Para No.4 of the application read as under:

"1. That the Complainant had filed the Complaint in January 2021 and the arguments in the Complaint were heard online on 24.03.2021. the matter was kept for orders and in April 2021 it was mentioned online that the order has been passed on 05.04.2021, however there was no method to check it as the order was not uploaded and no phone number was being picked.
2. That then the Appellant was not able to go to the Forum due to covid fears and 4 deaths in immediate family, besides off and on closures of the city and offices. The Hon'ble Courts also extended the limitations from time to time.
3. That on ebbing of the virus in December 2021, the Appellant went to the office of the Forum and took the copy of the order in his Complaint.
4. That the omicron virus became active then and the Appellant waited for slump in virus graph for filing of the appeal."

6. To adjudicate this issue, we deem it appropriate to refer to Section 41 of the Consumer Protection Act, 2019 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 on the grounds of facts or law within a ALLOWED Page 2 of 8 FA/63/2022 DOD:31.05.2023 GOPENDER MOHAN GUPTA VS. UBER INDIA period of forty-five 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 forty-five 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 Commission, unless the appellant has deposited fifty per cent. of that amount in the manner as may be prescribed"

7. A perusal of the aforesaid statutory position reflects that the appeal against an order should be preferred within a period of forty five days from the date of impugned judgment. On perusal of record before us, it is clear that the impugned order was pronounced on 05.04.2021 and the present appeal was filed on 01.03.2022 i.e. after a delay of 285 days.

8. In order to condone the delay, the Appellant has 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".

ALLOWED Page 3 of 8

FA/63/2022 DOD:31.05.2023 GOPENDER MOHAN GUPTA VS. UBER INDIA 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 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."

9. 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."

10. 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, ALLOWED Page 4 of 8 FA/63/2022 DOD:31.05.2023 GOPENDER MOHAN GUPTA VS. UBER INDIA 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 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.

11. 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.

12. Reverting to the material available before us, we find that the impugned order was passed on 05.04.2021 and the period of limitation starts from the date of order which had expired on 20.05.2021. However, the appellant has failed to file the present appeal within the stipulated period.

13. Be that as it may, in our view, the Appellant is entitled to the benefit of the order dated 10.01.2022 passed by Hon'ble Supreme Court in Suo Moto Writ petition (Civil) No. 3 of 2020 vide which the period of limitation was extended till 28.02.2022. Further, the Hon'ble Supreme has also extended the period of limitation for further 90 days in the case where the limitation has ALLOWED Page 5 of 8 FA/63/2022 DOD:31.05.2023 GOPENDER MOHAN GUPTA VS. UBER INDIA expired during the period between 15.03.2020 till 28.02.2022. The relevant para of the judgment reads as under:

5. Taking into consideration the arguments advance by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the MA No.21 of 2022 with the following directions:
I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.

II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022. III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, the longer period shall apply.

IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Section 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and

(c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.

14. Keeping in view the aforesaid judgment of Hon'ble Supreme Court, it is clear that impugned order was passed between the period from 15.03.2020 to 28.02.2022 i.e. on 05.04.2021, therefore, the period from 05.04.2021 to 28.02.2022 stands excluded in the present appeal and further appellant shall have ALLOWED Page 6 of 8 FA/63/2022 DOD:31.05.2023 GOPENDER MOHAN GUPTA VS. UBER INDIA limitation period of 90 days from 01.03.2022. Since, the judgment of Hon'ble Apex Court is applicable to the present appeal and the present appeal was filed on 01.03.2022, so there is no delay in filing the appeal.

15. In view of the aforesaid, the application bearing IA No.538/2022 filed by the Appellant seeking condonation of delay is allowed.

16. Now, Respondent is directed to file reply to the appeal within four weeks with direction to supply advance copy of the same to the opposite counsel.

17. Parties are directed to file their short written submissions alongwith judgments, if any, being relied by them within four weeks and advance copies of the same be exchanged with each other.

18. List the matter for final arguments on 19.07.2023.

JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) PINKI MEMBER (JUDICIAL) J.P. AGRAWAL MEMBER (GENERAL) Pronounced on 31.05.2023 ALLOWED Page 7 of 8 FA/63/2022 DOD:31.05.2023 GOPENDER MOHAN GUPTA VS. UBER INDIA 31.05.2023 FA-63/2022 Vide separate detailed order, application bearing IA No.538/2022 seeking condonation of delay is allowed.

Now, Respondent is directed to file reply to the appeal within four weeks with direction to supply advance copy of the same to the opposite counsel.

Parties are directed to file their short written submissions alongwith judgments, if any, being relied by them within four weeks and advance copies of the same be exchanged with each other.

List the matter for final arguments on 19.07.2023.

JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) PINKI MEMBER (JUDICIAL) J.P. AGRAWAL (GENERAL) ALLOWED Page 8 of 8