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State Consumer Disputes Redressal Commission

Prakash Chand Punetha vs M/S Megma Shrachi Finance Ltd. on 6 August, 2018

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
                         DEHRADUN

                    FIRST APPEAL NO. 117 / 2016

Sh. Prakash Chandra Punetha S/o Sh. Jeevanand Punetha
R/o Village & P.O. Fungar, District Champawat
                                           ...... Appellant / Complainant

                                Versus

1.    Magma Shrachi Finance Limited
      Magma House
      24, Park Street, Kolkata - 700016

2.    National Insurance Company Limited
      Division XV, 16, Rabindra Sarani, Poddar Court
      Gate No. 4, 6th Floor
      Kolkata - 700001
                                    ...... Respondents / Opposite Parties

Sh. Nitin Kumar, Learned Counsel for the Appellant
None for Respondents

Coram: Hon'ble Mr. Justice B.S. Verma, President
       Mrs. Veena Sharma,              Member

Dated: 06/08/2018

                               ORDER

(Per: Justice B.S. Verma, President):

This appeal under Section 15 of the Consumer Protection Act, 1986 is directed against the order dated 25.02.2015 passed by the District Forum, Nainital in consumer complaint No. 02 of 2009. The appeal has been preferred with a delay of 1 year 3 months' and 14 days' and for condonation of delay in filing the appeal, the appellant has moved an application for condonation of delay (Paper Nos. 28 to

30) supported with an affidavit of the appellant (Paper No. 31). The affidavit filed by the appellant in support of the delay condonation application is a short affidavit, wherein the contents of the appeal as 2 well as delay condonation application have only been verified and no averment has been made on oath.

2. In the application for condonation of delay filed by the appellant, it has been stated that on 05.12.2007, the appellant - complainant filed his detailed affidavit before the District Forum and since then the matter remained pending before the District Forum sometimes due to resolution of the Bar Association and sometimes for want of Presiding Officer of the District Forum and, as such, the appellant missed the date, when his consumer complaint was dismissed for non-prosecution. After joining of the new Presiding Officer, the appellant inquired about the status of his consumer complaint, whereupon he came to know about the District Forum has dismissed his consumer complaint for want of prosecution on 10.07.2014. On 12.06.2015, the counsel obtained the certified copy of the order dated 25.02.2015, but the complainant could not be contacted. The appellant visited Haldwani in the month of January, 2016 for inquiring about his consumer complaint and only then, he came to know about the dismissal of his consumer complaint. The appellant visited Dehradun in the month of February, 2016 and on reference met Sh. Nitin Kumar, Advocate, who drafted the appeal. While preparing the appeal, the said Advocate found that certain documents were missing from the file and, as such, he requested the appellant to furnish those documents. The appellant contacted his counsel Sh. S. Bhupendra Singh, Advocate for providing the required documents. Due to shifting of the office of the said counsel, the record of the disposed matters was consigned to some other place and it took some time for tracing out the case file, which caused further delay. The said documents came to be found in the first week of May, 2016, which were then made available to Sh. Nitin Kumar, Advocate. After finalizing the appeal, Sh. Nitin Kumar, Advocate requested the 3 appellant to visit Dehradun again for the purpose of attestation and verification of the affidavit. The appellant came to Dehradun on 08.06.2016. There is no deliberate delay in filing the appeal. On the above grounds, the delay in filing the appeal has been sought to be condoned by the appellant.

3. None appeared on behalf of respondents. We have heard the learned counsel for the appellant on delay condonation application and perused the record.

4. First of all, it need to be stated that the delay condonation application has very callously been drafted without looking into the record of the case. The order impugned passed by the District Forum is dated 25.02.2015 and not 10.07.2014, as has been mentioned in para 4 of the application. This apart, the consumer complaint was not dismissed by the District Forum for want of prosecution, rather the same was decided on merit after hearing both the parties. The consumer complaint was filed on 09.01.2009 and hence it is not understood as to how the appellant filed his detailed affidavit before the District Forum on 05.12.2007, when on the said date, the consumer complaint was not in existence.

5. Even otherwise, the counsel for the appellant took about 3½ months' in applying for the certified copy of the impugned order passed by the District Forum, for which, there is no justification coming from the side of the appellant. The delay between 12.06.2015 and January, 2016 has also not been tried to be explained by the appellant and it has simply been written that the appellant, who is a resident of Champawat, could not be contacted. From February, 2016 till the first week of May, 2016, the papers could not be traced.

Thereafter also, one month's period was consumed and the appellant came to Dehradun on 08.06.2016 for signing the appeal and affidavit.

6. In the case of Swiss International Air Lines Ltd. Vs. Jitender Mohan Bhasin and others; III (2012) CPJ 583 (NC), there was delay of 244 days' in filing the revision petition. It was held by the Hon'ble National Commission that the petitioner has failed to offer convincing rationale of reasons in support of his application. It was also held that there was gross negligence, deliberate inaction and lack of bonafides are imputable to the petitioner and the delay was not condoned. The Hon'ble National Commission in the case of Jain International Sansthan Vs. Krish City, Bhiwadi and others; III (2016) CPJ 2 (NC), has declined to condone the delay of 168 days' in filing the revision petition and has held that no lucid excuse is forthcoming from the petitioner to justify the delay in filing the revision petition. It was held that the case is barred by time. In the said decision, reliance was placed upon the decision of the Hon'ble Apex Court given in Special Leave to Appeal (Civil) No. 37183 of 2013; Sanjay Sidgonda Patil Vs. Branch Manager, National Insurance Company Limited and another, decided on 17.12.2013, wherein the Hon'ble Apex Court has confirmed the order of the Hon'ble National Commission and refused to condone the delay of 13 days'.

7. In view of the discussion made above, we are of the considered opinion that the appellant has not been able to satisfactorily explain / justify such a long and inordinate delay of 1 year 3 months' and 14 days' in filing the appeal and we are of the view that the delay in filing the appeal is not liable to be condoned and the application for condonation of delay warrants rejection.

8. Application for condonation of delay is rejected. Consequently, the appeal is also dismissed as not maintainable, being barred by limitation. No order as to costs.

       (MRS. VEENA SHARMA)               (JUSTICE B.S. VERMA)
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