State Consumer Disputes Redressal Commission
M/S Deep Communications vs Ms Loveleen Kaur on 16 February, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 36 of 2015 Date of Institution : 13.02.2015 Date of Decision : 16/02/2015 M/s Deep Communications, SCO No.46, Shop No.307, Canam Plaza, Sector 11, Panchkula, through its Prop. ......Appellant/Opposite Party No.1 Versus Ms.Loveleen Kaur daughter of Sh.Bikram Jeet Singh, resident of #3875, Sector 32-D, Chandigarh. .....Respondent No.1/Complainant 2. M/s Paramatrix Info Solutions Pvt. Ltd., SCO No.112-113, G.F., Sector 34-A, Chandigarh. .....Respondent No.2/Opposite Party No.2 Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR.DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by:Sh. Sandeep Suri, Advocate for the applicant/ appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 22.08.2014, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent No.1) and directed Opposite Party No.1 (now appellant), as under:-
"For the reasons recorded above, we find merit in the complaint and the same is allowed against OP No.1. OP No.1 is directed :-
To refund the amount of Rs.19,000/- to the complainant with interest @9% p.a. from the date of purchase i.e. 4.5.2013 till realization.
To make payment of an amount of Rs.10,000/- to the complainant towards mental agony and harassment.
To make payment of an amount of Rs.5000/- to the complainant towards litigation expenses.
This order shall be complied with by OP No.1 within one month from the date of receipt of its certified copy, failing which, the amounts mentioned at S.No.(i) and (ii) of the para aforesaid shall carry interest @12% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above."
Complaint against Opposite Party No.2 was dismissed by the District Forum, with no order as to costs.
The facts, in brief, are that, on 04.05.2013, the complainant approached, Opposite Party No.1, for purchasing a mobile phone, as she wanted to gift the same, to her mother Smt.Gurminder Kaur. It was stated that the Proprietor of Opposite Party No.1, told the complainant that he had got one mobile phone, make Apple 8 GB, black color bearing IMEI No.013274002770275, Sr. No.DX5JQNK8DPON, which was only two weeks old and he would give it to her at a genuine rate. As such, the complainant, purchased the said mobile phone, in the sum of Rs.19,000/-. However, the retail invoice, copy of which is Annexure C-1, showing the actual rate as Rs.24,900/-, was issued in the name of Mr.Shiv, on 22.04.2013. It was further stated that the said mobile handset became defective, in the first week of April, 2014. However, due to a marriage function, the complainant could not contact Opposite Party No.1. It was further stated that, after attending the marriage function, the complainant went to Opposite Party No.1, alongwith the defective mobile handset. It was further stated that Opposite Party No.1, told the complainant, to approach its Service Centre i.e. Opposite Party No.2, on 21.04.2014. As such, the complainant visited Opposite Party No.2, on 19.04.2014. The engineer of Opposite Party No.2, told the complainant, that software of the said mobile handset would be updated. As such, the complainant was asked to come on Monday i.e. on 21.04.2014.
It was further stated that the fact that the warranty of the said mobile handset was to expire on 21.04.2014 was not disclosed by Opposite Party No.2, intentionally. It was further stated that the mobile handset was under warranty period till Monday i.e. 21.04.2014. On 21.04.2014, the engineer of Opposite Party No.2, issued job sheet No.2152 dated 21.04.2014 Annexure C-2, upon which, he mentioned that the mobile handset was out of warranty. It was further stated that this fact was not disclosed by the engineers of Opposite Parties No.1 and 2, on 19.04.2014, when the complainant visited them, with the complaint of defect in the said mobile handset, just with a view, to earn money from her, for repairing it after 21.04.2014. It was further stated that the complainant was also pressurized to take additional warranty for one year, in respect of the said mobile phone, on payment of Rs.3900/-, at the time of up-gradation of software of the mobile phone, on 19.04.2014.
It was further stated that the defects in the mobile handset were i) hang ii) automatically screen blank iii) home button was not working etc. It was further stated that the complainant visited Opposite Parties No.1 and 2, a number of times, to collect her mobile handset, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay compensation, to the tune of Rs.50,000/-, for mental agony and physical harassment.
Opposite Party No.2, in its written version, pleaded that the complaint was not maintainable. It was further pleaded that the complainant approached the District Forum with soiled hands. It was further pleaded that since the complainant had not impleaded the manufacturer i.e. Apple India Pvt. Ltd. as a party to the complaint, the same was bad for non-joinder of necessary parties. It was stated that Opposite Party No.2 was only the authorized Service Centre of Apple India Pvt. Ltd. It was further stated that warranty on the products was given by the Company and not by Opposite Party No.2. It was admitted that the complainant visited the premises of Opposite Party No.2, on 21.04.2014. It was also denied that the complainant visited Opposite Party No.2, on 19.04.2014. It was also denied that Opposite Party No.2 told the complainant, at any point of time, that it would update the software ios-7 in the said mobile handset. The issuance of job sheet Annexure C-2 was admitted. It was further stated that the words "OUT OF WARRANTY" were mentioned on the said job sheet, as it (warranty) had already expired, when the complainant visited Opposite Party No.2, for rectification of defect, in the said mobile handset. It was further stated that the record Annexure R-2/1 of Opposite Party No.2 showed that the mobile handset, in question, was purchased on 20.03.2013. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
Despite deemed service, none put in appearance, on behalf of Opposite Party No.1, as a result whereof, it was proceeded against exparte, by the District Forum, on 06.06.2014.
The complainant and Opposite Party No.2, led evidence, in support of their case.
None put in appearance, on behalf of the complainant, on 04.08.2014, when the consumer complaint was fixed for final arguments. Accordingly, after hearing the Counsel for Opposite Party No.2, and, on going through the evidence, and record of the case, including the written arguments, the District Forum, accepted the complaint, in the manner, referred to, in the opening paragraph of the instant order.
Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.
Alongwith the appeal, an application under Section 5 of the Limitation Act, for condonation of delay of 143 days, as per the applicant/appellant (as per the office report 128 days), was filed by the applicant/appellant. It was stated, in the application, for condonation of delay that, in the first instance, the applicant/appellant, was never served in the consumer complaint, and, as such, it was not aware of the proceedings, initiated against it, in the District Forum. It was further stated that, however, passing of the order impugned, came to the notice of the applicant/appellant, from the newspaper reports. It was further stated that, thereafter, the applicant/ appellant, immediately inspected the file, in the District Forum and took legal advice, for the purpose of filing an appeal, against the impugned order dated 22.08.2014. It was further stated that demand draft in the sum of Rs.18,200/-, was also prepared for depositing the same, for filing an appeal, before this Commission. It was further stated that during the course of preparation of appeal, it was felt by the applicant/appellant, to bring on record, the affidavit of the concerned person, to whom it had actually sold the mobile phone, in question, which was ultimately got prepared on 22.09.2014. It was further stated that, however, the Advocate, who was engaged to file the appeal, could not file the same, in time, on account of certain reasons. It was further stated that the fact of non-filing of the appeal, came to the notice of the applicant/appellant, when in the month of December 2014, notice was received by its Proprietor, in the Execution Application/Criminal Petition, filed by the Decree Holder/complainant. It was further stated that, on 14.01.2015, the father of the Proprietor of the applicant/appellant expired, as a result whereof, he (Proprietor of the applicant/appellant), could not pay attention to the case. It was further stated that, on account of the reasons, referred to above, there was delay, in filing the appeal. It was further stated that delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
We have heard the Counsel for the applicant/appellant, on the application, for condonation of delay, as also, in the main appeal, at the preliminary stage, and have gone through the record of the case, carefully.
The first question, that falls for consideration, is, as to whether, there is sufficient cause for condonation of delay of 143 days, as per the applicant/appellant (as per the office report 128 days), in filing the appeal, under Section 15 of the Act or not. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab and Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bonafide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court, it was held as under:-
"No doubt the words "sufficient cause" should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all "sufficient cause" is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen."
In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 19107 Punjab and Haryana 45, it was held as under:-
"There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.
In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-
"We hold that in each and every case the Court has to examine whether delay in filing the Special 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".
In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-
"The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]"
In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-
"Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay"
In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-
"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"
A bare reading of the first proviso, engrafted to Section 15 of the Act, makes it clear, that the material part of the language thereof, is pari-materia to Section 5 of the Limitation Act, 1963. First coming to the plea taken by the applicant/appellant, that it (applicant/appellant), could not appear in the District Forum, in the consumer complaint, on account of the reason, that summons for its service, was not received by it, and, as such, it was not aware that the same (consumer complaint) had been filed against it, by the complainant, it may be stated here, that the applicant/ appellant/Opposite Party No.1, failed to produce, on record, any document, in order to establish that the address furnished by the complainant, in the consumer complaint, was incorrect or incomplete, as a result whereof, summons could not be served upon it, and, as such, it could not put in appearance, before the District Forum, on 06.06.2014, for want of service. In our considered opinion, the bald plea of the applicant/appellant, in this regard, does not merit acceptance.
Now coming to the second plea of the applicant/appellant, that after coming to know about passing of the order impugned from the newspaper reports, the applicant/appellant, immediately inspected the case file and took legal advice, for the purpose of filing an appeal, against the same, whereafter, draft in the sum of Rs.18,200/-, was also prepared for submission of the same, alongwith the memorandum of appeal, before this Commission, as also, the affidavit of the concerned person, to whom it had actually sold the mobile phone in question, was also got prepared, yet, despite all these efforts, having been made by it (applicant/appellant), the Advocate, who was engaged to file the appeal, failed to file the same (appeal), for the reasons best known to him (Advocate), which fact came to its notice (applicant/appellant), in the month of December 2014, when notice was received in the execution proceedings by it, it may be stated here that it does not merit acceptance. The applicant/appellant, failed to produce, on record, even a single reliable document to convince this Commission, as to why it took 143 days, in filing the appeal. As far as the preparation of demand draft, and the affidavit aforesaid, is concerned, it may be stated here, that hardly an hour, is sufficient for this purpose. Otherwise also, the said demand draft and the affidavit aforesaid, were got prepared on 22.09.2014, yet, it is not known, as to why the appeal was not filed, immediately, thereafter. On the other hand, perusal of the District Forum record reveals that the Execution Application bearing No.135 of 2014 was filed by the Decree Holder/complainant, on 07.11.2014, notice whereof was sent to the applicant/appellant, which finally put in appearance, through its Counsel Sh. Puneet Tuli, on 19.12.2014, before it (District Forum). Thus, it appears that the applicant/appellant, acted only after receiving the notice, under Section 27 of the Act in the Execution Application/Criminal Petition, filed by the Decree Holder/complainant.
It may be stated here that once certified copy of the impugned order was received in the office of the applicant/appellant, it was the bounden duty of the concerned Official(s), or its Proprietor to take decision, within maximum two to three days, and forward the relevant file/documents, to the Counsel concerned, for filing the appeal. However, as stated above, there is nothing, on record, as to on which date, the file/documents and certified copy of the order impugned, were forwarded to the Counsel concerned, for filing the appeal. Why it took 143 days, as per the applicant/appellant (as per the office report 128 days), for filing the appeal, is not known. Thus, in our considered opinion, no sufficient cause is made out, from the averments, contained in the application, for condoning the delay. It appears that after receiving certified copy of the impugned order, the Proprietor or the concerned Officials of the applicant/appellant/ Opposite Party No.1, slept over the matter, and, ultimately, they woke up from their deep slumber, after 143 days, as per the applicant/appellant (as per the office report 128 days), when the instant appeal was filed.
It could be said that the Proprietor or the Officials of the applicant/appellant, were not diligent, in pursuing the matter. The prescribed period of limitation, as envisaged by Section 15 of the Act, for filing an appeal is 30 days, from the date of receipt of a certified copy of the order. The applicant/appellant did not act, with due diligence, resulting into delay of 143 days, as per the applicant/appellant (as per the office report 128 days), in filing the appeal, which is about more than four months, beyond the prescribed period of limitation. The cause set up by the applicant/ appellant, in the application, for condonation of delay, could not be said to be plausible. The mere fact that the Proprietor or the Officials of the applicant/appellant, acted in a leisure mood, without envisaging the consequences, which could ensue, on account of non-filing of an appeal, within the period prescribed, under Section 15 of the Act, does not mean that the applicant/appellant could be shown undue indulgence. The delay, in filing the appeal was, thus, intentional, wilful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 143 days, as per the applicant/appellant (as per the office report 128 days), cannot be condoned. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.
The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory, on the Commission, to condone the delay. The answer to this question, is in the negative. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was held as under:-
"It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant."
It is evident, from the principle of law, laid down in Ram Lal & Ors.'s case (supra), that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into consideration, all the relevant factors, and it is, at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory, on the part of the applicant/appellant, to take immediate steps to ensure that the appeal was filed within the prescribed period, as envisaged by Section 15 of the Act. However, the Proprietor or the Officials of the applicant/appellant, just slept over the matter, and did not take the requisite steps to file the appeal, in time. It was, thus, a case of complete lack of bonafides and inaction, on the part of the applicant/appellant. The principle of law, laid down in Ram Lal & Others' case(supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission, should exercise its discretion, in favour of the applicant/appellant, in condoning the delay.
The next question, that arises for consideration, is, as to whether, this Commission can decide the appeal, on merits, especially, when it has come to the conclusion, that there is no sufficient cause, for condonation of delay of 143 days, as per the applicant/appellant (as per the office report 128 days), in filing the same (appeal). The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India Vs B.S. Agricultural Industries (I) II (2009) CPJ 29 (SC). The question before the Apex Court, was with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act. The Apex Court was pleased to observe as under ;
"Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:
"24A. Limitation period--(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."
It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, 'shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside."
The principle of law, laid down, by the Apex Court in State Bank of India's case (supra), is equally applicable to the filing of an appeal, under Section 15 of the Act. In case, this Commission, decides the appeal, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in State Bank of India's case (supra).
For the reasons, recorded above, the application for condonation of delay of 143 days, as per the applicant/appellant (as per the office report 128 days), being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal under Section 15 of the Act, is also dismissed, being barred by time, at the preliminary stage, with no order as to costs.
Certified copies of this order, be sent to the parties, free of charge.
The file be consigned to Record Room, after completion Pronounced.
16/02/2015_ Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg