National Consumer Disputes Redressal
1. Assistant Engineer vs Shri Namdev Pandurang on 3 January, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3201 OF 2012 WITH (I.A. NO.1, 2 & 3 OF 2012) (From the order dated 21.11.2011 in Appeal No. 844/2010 of the State Commission, Maharashtra) 1. Assistant Engineer Sub Division Pandharpur Maharashtra State Electricity Distribution Company Ltd. Office at Hake Building Gatade Plot, Pandharpur 2. Executive Engineer (P & O Div.) Maharashtra State Electricity Distribution Company Ltd. Office at Division Office Link Road, Pandharpur Distt. Solapur . Petitioners Versus Shri Namdev Pandurang R/o Jaloli Tal. Pandharpur Distt. Solapur Maharashtra . Respondent BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER For the Petitioner(s) : Mr. Ajit S. Bhasme, Advocate & Mr. Pankaj Mishra, Advocate Pronounced on : 3rd January, 2013 ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER Petitioners/opposite parties aggrieved by order dated 21.11.2011, passed by Maharashtra State Consumer Disputes Redressal Forum, Mumbai (short, State Commission) have filed the present revision petition. Along with it, an application seeking condonation of delay of 61 days has also been filed.
2. Respondent/complainant has taken electricity connection on his bore-well from the petitioners, which was burnt due to short circuit. Petitioners refused to pay any compensation. Accordingly, respondent filed a complaint before District Consumer Disputes Redressal Forum, Solapur (short, District Forum).
3. Before District Forum, petitioners did not appear despite service. Hence, petitioners were proceeded ex parte. District Forum, vide order dated 20.5.2010, allowed the complaint and awarded a sum of Rs.2,50,000/- for compensation and Rs.1,000/- towards cost.
4. Order of District Forum was challenged by the petitioners before the State Commission, which dismissed their appeal.
5. Hence, this revision petition.
6. It has been contended by learned counsel for the petitioners that State Commission had condoned the delay in filing of the appeal, subject to the payment of Rs.3,000/- as cost, within 15 days to the respondent. Petitioners offered the said amount to the respondent within the specified period, but respondent did not accept the same. Hence, the said amount was sent on 30.3.2011 by money order, which was duly received by respondent on 7.4.2011. Thus, State Commission wrongly dismissed the appeal observing that cost of Rs.3,000/- has not been paid till date.
7. As far as application for condonation of delay is concerned, it is contended by learned counsel for the petitioners that since decision has to be taken by the Head Office, so delay has occurred only due to administrative reasons.
8. It is an admitted fact that petitioners were ex parte before the District Forum. Thus, petitioners have no defence on merit.
9. Impugned order passed by the State Commission, read as under ;
This appeal is directed as against the order passed by the District Forum, Solapur in consumer complaint No.688/2009, Shri Namdeo Pandurang Jadhav V/s Asst. Engineer, Maharashtra State Electricity Distribution Company Ltd. & Ors. decided on 20.5.2010. There was delay in preparing this appeal and therefore, delay condonation application No.MA/10/439 was filed. That application was allowed by an order dated 11.3.2011. However, appellant was directed to pay cost of Rs.3,000/- within 15 days to the respondent. It is further stated in the said order that if the amount is not paid within 15 days, delay application stands rejected and accordingly said MA was disposed of. Thereafter, the matter was listed for admission. It is yet not admitted. However, today the ld. Counsel for respondent submitted an application that the cost of Rs.3,000/- which was directed to be paid while allowing delay condonation application was not paid till today. We find that this earlier order is self-operative and if the amount is/was not paid within 15 days, application for condonation of delay stands rejected. Hence, we pass the following order ;
ORDER Since, the costs, sine-qua-non to condone the delay, are not paid in view of the self-operative order, appeal stands disposed of as rejected.
10. There is nothing on record to show that petitioners have paid the aforesaid cost to the respondent, within the specified period. Under these circumstances, State Commission was fully justified in dismissing the application for condonation of delay. There can be no quarrel with the reasonings given by the State Commission.
11. Be that as it may, the grounds of which condonation of delay has been sought in the present revision, read as under ;
3. That the record indicates that original certified copy of the impugned decision dated 21.11.2011 was issued on 12.3.2012. However, since the same was not received by the petitioners, application was made and certified copy of the order was sent by post on 17.4.2012 as indicated by the record.
4. That after receipt of the certified copy the matter was referred for legal opinion at local level, thereafter it was decided to move the Head Office to the Chief Legal Advisor for necessary advice. Thereafter, it appears that on account of communication gap the papers remained to be sent to the present Advocate on record and hence a letter dated 1.5.2012 was addressed to the Asstt. Engineer to send documents including translation of the District Forum order. That the said documents were ultimately sent in August, 2012 and where after necessary steps were taken to draft and file the present revision petition.
5. That the petitioners respectfully say and submit that delay in filing the present revision petition is inadvertent and unintentional and has occasioned due to the reasons beyond the control of the petitioners.
6. That the petitioners officers at the lower level of the organization are not fully conscious of the niceties of laws and were unable to comprehend properly the steps to be taken by them for filing the present revision petition. That apart there was a communication gap between head office and local office at Solapur and Advocate at Delhi which led to nominal delay in filing the present revision petition.
7. That the petitioners respectfully say and submit and having regard to the totality of the circumstances and especially the incorrect assumption of the State Commission in the factual matrix in passing the impugned order, it is respectfully submitted that this Honble Commission be pleased to take a liberal view and condone the inadvertent and intentional delay in filing the present revision petition.
12. It is well settled that sufficient cause for condonation of delay in each case, is a question of fact.
13. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Apex Court has observed ;
We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.
14. Honble, Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) laid down that;
It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the 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 this Court was to entertain highly belated petitions filed against the orders of the consumer Foras.
15. Recently, Apex Court in Post Master General and others vs. Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;
24. After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;
29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.
The Court further observed ;
27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.
31. In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.
32. In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs.
16. In the present case, admittedly petitioners were ex parte before the District Forum. It also an admitted fact that appeal was not filed before the State Commission within the period of limitation. However, application for condonation of delay was allowed, subject to the payment of cost. But, petitioners did not deposit the cost within the prescribed time.
Even, present petition has also not been filed within the period of limitation. This itself speaks for the working of petitioners company, as to how careless and negligent are the petitioners in pursuing the above litigation. Petitioners are bent upon not to comply with the order of the District Forum. The only purpose of the petitioners is to deprive the respondent, the fruits of the compensation awarded in his favour.
17. Moreover, as per record, free certified copy was issued on 22.2.2012. Assuming for arguments sake, that the same was received by the petitioners by post on 17.4.2012 and thereafter letter dated 1.5.2012, was addressed to the Asstt. Engineer. However, the documents were ultimately sent in Aug., 2012, that is, after about three months. No name of the Asstt. Engineer has been mentioned nor it has been stated as to which official is responsible for the delay for the period from 1.5.2012 till August, 2012.
Application is absolutely silent on these material aspects. No specific date or name of any official has been mentioned as to when the file was received and which particular officials had dealt with it. Reasons for the delay mentioned in the application does not come within the purview of sufficient cause. Observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the present case.
18. Thus, gross negligence, deliberate inaction and lack of bonafides are imputable to the petitioner. Hence, no sufficient grounds are made out for condoning the delay in filing of the present revision petition. Application for condonation of delay under these circumstances, is not maintainable at all. Thus, the present revision being barred by limitation and having no legal basis is dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).
19. Petitioners are directed to deposit the cost by way of demand draft in the name of Consumer Legal Aid Account of this Commission, within four weeks from today.
20. In case, petitioners fail to deposit the aforesaid cost, within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization.
21. List for compliance on 22.2.2013.
J (V.B. GUPTA) PRESIDING MEMBER Sonia/