State Consumer Disputes Redressal Commission
Dtdc Courier & Cargo Ltd. & Anr. vs Ashok Kumar Nigam & Anr. on 19 May, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/297
Instituted on : 04.05.2017
1. DTDC Courier and Cargo Limited,
Having its Registered Office at DTDC House,
No.3, Victoria Road,
Bangalore 560 047 ... Appellant No.1/O.P.No.3
2. DTDC Courier and Cargo Limited,
Through Its Regional Manager Shri Atul Joshi,
Having its Regional Office at 34, Abhyankar Road,
Dhantoli, Nagpur 440 012 ... Appellant No.2/O.P.No.2
Vs.
1. Shri Ashok Kumar Nigam,
R/o - G-5, Sinchai Colony, Shanti Nagar,
Raipur (C.G.) ..... Respondent No.1/Complainant
2. Shri Jainandan Singh,
Deshbandhu Press,
Agrasen Chowk, Opp. Nagar Nigam Colony,
Raipur (C.G.). .... Respondent No.2/O.P. No.1
PPRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri Pawan Awasthi, Advocate for the appellants (O.P. No.2 & O.P. No.3)
ORDER
DATED : 19/05/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 5th December, 2016, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum") in Complaint Case No.199/2015, whereby the complaint of the complainant, has been partly allowed and the OPs // 2 // have been directed to pay the amounts to the complainant, as mentioned in para 8 of the impugned order.
2. The appellants (O.P.No.2 & O.P. No.3) have preferred this appeal against the impugned order dated 5th December, 2016 passed by the District Forum and have also filed an application for condonation of delay in filing the appeal. The appeal is belated by 76 days.
3. The appellants (O.P. No.2 & O.P. No.3) have taken ground for condonation of delay in the application that the respondent No.1 (complainant) filed the complaint against the OPs before the District Forum. Vide impugned order dated 05.12.2016, the complaint has been allowed. The appellants (O.P. No.2 & O.P. No.3) were proceeded ex-parte due to non-appearance before the District Forum, whereas the appellants (O.P. No.2 & O.P. No.3) have never received any notice from the District Forum, therefore, the appellants (O.P. No.2 & O.P. No.3) were prevented from defending the complaint. The appellants (O.P. No.2 & O.P. No.3) have received the copy of the impugned order on 29.01.2017 and immediately on 7th February, 2017, the appeal was prepared and filed before this Commission, but the office did not accept the appeal saying that the Demand Draft of the Statutory amount should be filed. Infact, the office could have received the appeal and placed it under objection but by not doing so, they simply directed the appellants (O.P. No.2 & O.P. No.3) to firstly deposit the statutory amount and then they would accept the appeal. Therefore, the appellants (O.P. No.2 & O.P. No.3) got prepared a // 3 // Demand Draft from Nagputr and filed it before this Commission on 20.02.2017, therefore, the appeal is within limitation. If some delay has been caused in filing the instant appeal, the same is bonafide and is not intentional.
4. Shri Pawan Awasthi, learned counsel appearing for the appellants (O.P. No.2 & 3) has argued that on 29.01.2017, the appellants (O.P. No.2 & O.P. No.3) have received the copy of the impugned order by ordinary post, sent by learned District Forum, Raipur which is the date of knowledge by the appellants (O.P. No.2 & O.P. No.3) that an ex-parte order is passed by the District Forum. The appellants (O.P. No.2 & O.P. No.3) immediately entrusted the said copy of judgment to their advocate, who prepared First Appeal on 7th February, 2017 and affidavit was sworn on 9th February, 2017. The said appeal for the first time was presented before this Commission on 10.02.2017 when the office refused to register it, on the ground that the same was not accompanying the Demand Draft of the statutory deposit. The local counsel informed this defect to the counsel, who in turn informed the appellants (O.P. No.2 & O.P. No.3) to arrange for a demand draft of Rs.18,000/- being the 50% of the amount awarded to the respondent No.1 (complainant). The Demand Draft was sent and on 20th February, 2017, again the appeal was presented with demand draft, which was again refused to be registered on the ground that the same is not accompanying with the application for condonation of delay and, therefore, the said application for condonation of delay was // 4 // prepared and finally the appeal was registered by this Commission on 30th March, 2017. Thus, it would be clear that the appeal consumed the time of 60 days from the date of knowledge till filing. From these 60 days if appeal period of 30 days is reduced, then the delay caused in filing appeal remains only 30 days. According to the appellants (O.P. No.2 & O.P. No.3) this delay is not at all intentional, since the appeal was presented, though with office objections, for the first time on 10.02.2017 and was thus within limitation. He placed reliance on City Life Developers Vs. Mr. Vencillous Fernandes and Another, [2013] 2 CPR (NC) 542; M/s. Young India Engineers Through its Partners & Others Vs. Badri S/o Narayan Choudhary [2014] 2 CPR (NC) 630; SMV Agencies Pvt. Ltd. Vs. Ashwini Kataria II (2015) CPJ 373 (NC)
5. We have heard arguments of Shri Pawan Awasthi, learned counsel appearing for the appellants (O.P.No.2 & O.P. No.3.) on the application filed for condonation of delay in filing appeal and have also perused the record of the District Forum.
6. Section 15 of the Consumer Protection Act, 1986 runs thus :-
"15. Appeal. - 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 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.
// 5 // 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 prescribed manner fifty per cent of that amount or twenty five thousand rupees whichever is less."
7. In National Insurance Company Limited Vs. M.R.N. Spinner (P) Ltd., IV (2010) CPJ 81 (NC), Hon'ble National Commission has held that "Deposit in terms of second proviso to Section 15, is a condition precedent for entertaining appeal and admitting them to hearing."
8. In Haryana Urban Development Authority Vs. Jagmohan Gupta, II (2012) CPJ 319 (NC), Hon'ble National Commission has held that "Statutory deposit is a pre-requisite for consideration of appeal under Section 15 of Act. Primary responsibility needs to be discharged by any appellant before it can expect its appeal to be admitted to consideration."
9. In Bajaj Allianz General Insurance Company Limited Vs. Sushil Chandra Mishra, I (2013) CPJ 709 (NC); Hon'ble National Commission has held that "Compliance of second proviso of Section 15 of Act is mandatory."
10. Looking to the Second Proviso of Section 15 of the Consumer Protection Act, 1986 and the above judgments, it appears that Second Proviso of Section 15 of the Consumer Protection Act, 1986 is mandatory in nature and the appeal will be treated as filed when Second Proviso of Section 15 of the Consumer Protection Act, 1986, is complied. In the instant case, the appellants (O.P. No.2 & O.P. No3) themselves mentioned // 6 // in the application for condonation of delay that the office did not accept the appeal saying that the demand draft of the statutory amount should be filed. It appears that without complying Second Proviso of Section 15 of the Consumer Protection Act, which is mandatory, the appeal has been filed by the appellants (O.P. No.2 & O.P. No.3). The Second Proviso of Section 15 of the Consumer Protection Act, 1986 has been complied on 30.03.2017, therefore, it will be held that the appeal has been instituted on 30.03.2017.
11. The respondent No.1 (complainant) made party D.T.D.C. Courier Through Director Shri Jainandan Singh, Civil Lines, Raipur as O.P. No.1, D.T.D.C. Courier & Cargo Limited Through Area Manager, Regional Office, Dhantoli, Nagpur as O.P. No.2, D.T.D.C. Courier & Cargo Limited Registered / Head Office D.T.D.C. House No.3, Victoria Road, Bengaluru (Karnataka) 560047 as O.P. No.3. In the record of the District Forum, acknowledgements are annexed. In the acknowledgements the signatures of the addressee are affixed and seal are also affixed in the acknowledgements. It shows that the notices were duly served on the OPs. Learned District Forum vide order dated 31.07.2015 observed that the notices were duly served on the O.P. No.1, O.P. No.2 and O.P. No.3, but none appeared on behalf of the OPs and the case was fixed for final arguments. It appears that the notices were duly served on the OPs, but the OPs deliberately remained absent before the District Forum. In the application the reason assigned by the appellants (O.P. No.2 & O.P. No.3) // 7 // that the appeal consumed the time of 60 days from the date of knowledge till filing. From these 60 days if appeal period of 30 days is reduced, then the delay caused in filing appeal remains only 30 days. The reasons assigned by the appellants (O.P. No.2 & O.P. No.3) for condonation of delay in filing appeal, are not acceptable.
12. In Basavraj & Anr. V. The Spl. Land Acquisition Officer, 2013 AIR SCW 6510, Hon'ble Supreme Court observed thus:-
"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 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. (See: Manindra Land and Building Corporation Ltd. v. Bhootnath Banerjee &Ors., AIR 1964 SC 1336; Lala Matadin v. A.Narayanan, AIR 1970 SC 1953; Parimal v. Veena alias Bharti AIR 2011 SC 1150 : (2011 AIR SEW 1233); and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629 : (2012 AIR SCW 2412.) // 8 //
12. It is a settled legal proposition that 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. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." 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. The legal maxim "dura lex sed lex" which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.
15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
13. The Hon'ble Supreme Court in Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), has 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 // 9 // 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."
14. In Cordcon Builders Pvt. Ltd. & Anr. Vs. Valerian Anthony Diago & Anr. 2015 (2) CPR 517 (NC), Hon'ble National Commission has observed thus :-
"10. .......Thus, it becomes clear that almost after about 9 months he applied for certified copy of the impugned order inspite of having knowledge of the impugned order. Section 12 (2) of Limitation Act runs as under:
"(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which 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.
Thus, limitation runs from the date of pronouncement/knowledge and is such circumstances limitation for filing appeal started from 10.04.2012 and period taken in obtaining certified copy is to be excluded for the purpose of calculation of condonation of delay.
Apparently , appellant applied for certified copy on 4.01.2013 and he received copy on the same day; hence, only one day for getting certified copy of the impugned order is to be excluded for computation of limitation for filing appeal.
11. Learned Counsel for the appellant submitted that period of limitation is to be calculated from the date of receiving free copy as provided under Regulation 21 of the C.P. Regulations, 2005. This argument is devoid of force because this provision only directs to the // 10 // Consumer Fora to give parties free of cost copy of the order, but it nowhere specifies that limitation will run from the date of receipt of free copy. If a party does not receive free copy at all, it cannot be held that limitation will not run against him till he receives certified copy. Limitation will run from the date he obtains knowledge of the order passed by Consumer Fora and only period taken in obtaining certified copy will be excluded. Appellant should have applied for certified copy of order on 10.04.2012, when judgment was pronounced in his presence and as he did not apply for certified copy uptill 4.1.2013, period from 11.4.2012 to 3.1.2013 cannot be excluded from period of limitation provided for filing appeal."
15. In Lachoo @ Laxminarayan vs. Proprietory : Verma Watch House Shyam Talkies, 2015 (4) CPR 337 (NC), Hon'ble National Commission has observed that "On bare perusal of record of Forum & affidavit filed by complainant, appears that reason assigned by complainant regarding delay, not satisfactory and delay not explained properly."
16. In M/s. Samia International Builders (P.) Ltd. Vs. Neeta Rani, 2016 (1) CPR 19 (NC), Hon'ble National Commission has observed that "Sufficient cause for condoning delay in each case question of fact. No leniency should be shown to such type of litigants, who in order to cover up their own fault and negligence, go on filing merit less petitions in different foras."
17. In Rituraj Construction Vs. Prakash Ramchandra Kale, I (2016) CPJ 272 (NC), Hon'ble National Commission has observed thus :-
"17. We fully agree with the reasonings given by the State Commission, that in the application no cause whatsoever has been shown as to why there was delay of 43 days in filing the appeal, except that 'due // 11 // to some unavoidable circumstances there is delay of 43 days'. Now what is this, 'some unavoidable circumstances'' has not been explained at all. Be that as it may, the aforesaid reason by any stretch of imagination, cannon be said to be a sufficient cause. Moreover, a valuable right has accrued in favour of respondent, which cannot be brushed aside lightly."
18. In Sr. Superintendent of Post Offices & Anr. Vs. Modi (HUF), 2016 (2) CPR 577 (NC), Hon'ble National Commission, has observed that "Inordinate delay of 305 days in filing of Revision Petition cannot be condoned."
19. In Bappanand Narshimman Annu Vs. Hirmanidevi G.S. Gupta & Ors., 2016 (4) CPR 447 (NC), Hon'ble National Commission has observed thus :-
"8. Tested on the touchstone of the broad principles laid down in a catena of decisions of the Hon'ble Supreme Court, viz., 'sufficient cause' cannot be construed liberally if negligence, inaction or lack of bonafides are attributable to the party, praying for exercise of such discretion in its favour, and that when a statute provides for a particular period of limitation, it has to be applied with all its rigors, as an unlimited limitation leads to a sense of uncertainty, we are of the view that the State Commission has not committed any jurisdictional error in coming to the conclusion that a case for condonation of the said delay was not made out."
20. In Reliance General Insurance Company Limited Vs. Shri Pariyojna Nirman Private Limited, IV (2016) CPJ 178 (NC), Hon'ble National Commission has observed thus :-
"Consumer Protection Act, 1986 - Sections 24A, 21(b) - Limitation - Delay of 127 days - Condonation - Expression 'sufficient cause' cannot be erased from Section 5 of Limitation Act by adopting excessive liberal approach -
// 12 // There must be some cause which can be termed as 'sufficient one' for the purpose of delay condonation - Officer of the Insurance Company should not sit over the documents - They should decide the case immediately - Delay not condoned."
21. In Division Railway Manager & Ors. Vs. Sanjay Kumar Singh, 2016 (4) CPR 288 (NC), Hon'ble National Commission has observed that "A government department cannot be treated differently from ordinary litigant."
22. In Himachal Pradesh Housing & Urban Development Authority Vs. Vandana Kansal, I (2017) CPJ 473 (NC), Hon'ble National Commission, has observed thus :-
"13. From the above judgment, it is clear that the delay occurring in the government departments or semi government organisations due to inter-departmental consultations and due to procedures cannot be considered as sufficient ground for condonation of delay and hence clearly the appeal is barred by limitation."
23. The appellants (O.P. No.2 & O.P. No.3) is a Public Undertaking Body and it should not spend time in making internal correspondence. A public undertaking body cannot be treated differently from ordinary litigant. Merely, the appellants (O.P. No.2 & O.P. No.3) is Public Undertaking Body, it is not entitled to get different treatment than ordinary litigant, it means that the status of the appellants (O.P. No.2 & O.P. No.3.) is same as of ordinary litigant. No satisfactory explanation has been given by the appellants (O.P. No.2 & O.P. No.2), as to why they could not file the appeal within prescribed time.
// 13 //
24. It must be borne in mind that Consumer Protection Act, 1986 lays down its own period of limitation. In the instant case, looking to the application filed by the appellants (O.P. No.2 & O.P. No.3) for condonation of delay in filing the appeal it appears that the reasons assigned by the appellants (O.P. No.2 & 3) in the said application regarding delay in filing the appeal, are not satisfactory and delay has not been explained properly, therefore, the appeal is barred by limitation by 76 days, which cannot be condoned.
25. Thus, the application filed by the appellants (O.P. No.2 & O.P. No.3) for condonation of delay in filing the appeal, is hereby rejected. Consequently, the appeal also stands dismissed.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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