State Consumer Disputes Redressal Commission
M/S. O.P. Steel Limited., Represented ... vs The New India Assurance Co.,Ltd., ... on 28 June, 2012
THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI. Present: Honble Thiru Justice R.REGUPATHI, President Thiru.A.K.Annamalai, Judicial Member Thiru.S.Sambandam, Member. C.M.P.No.585/2009 in F.A.No.874/2008 THURSDAY THE 28th DAY OF JUNE 2012 (Against the order in CC-No-447/2003 on the file of DCDRF, Chennai North) M/s. O.P. Steel Limited., Represented by its Manager, No.17, Mooker Nalla Muthu Street, 2nd Floor, George Town, Chennai 600 001. Petitioner/Respondent/Complainant Vs The New India Assurance Co.,Ltd., Divisional Office, 710 100, Justice Basheer Ahmed Buildings, 5th Floor, No.45, Moor Street, Chennai 600 001. Respondent/Appellant/Opposite Party Counsel for the petitioner/Respondent/complainant: M/s K. Ramasamy, Advocates. Counsel for Respondent/Appellant/OP. M/s. M.B. Gopalan, Advocates. This Petition having come for final hearing before us on 19.06.2012 in the presence of both the parties and hearing upon the arguments of both sides and perused the materials on records, this Commission pronounced the following ORDER
A.K.ANNAMALAI, JUDICIAL MEMBER
1. The petitioner/Respondent/Complainant filed this petition against the respondent/Appellant/Opposite Party claiming for dismissal of the appeal in F.A.No.874/2008 dated 01.12.2008 against the award in C.C.No.447/2003 passed by the District Forum, Chennai (North).
2. The District Forum, Chennai (North) allowed the complaint in C.C.No.447/2003 by order dated 30.07.2008 in favour of the complainant directing the opposite party to pay a sum of Rs.3,45,108/- with 9% interest and Rs.50,000/- as compensation and Rs.2000/- as cost for deficiency of service committed by the opposite party.
3. The opposite party filed the appeal before this Commission against the order of the District Forum in F.A.No.874/2008 dated 01.12.2008.
4. The petitioner/respondent/complainant filed this petition by objecting the admission of the appeal by this Commission without condoning the delay in filing appeal for which the appellant had not taken steps and straightway filed the appeal which is belated and not within the time since the appeal ought to have been filed on or before 30 days from the alleged date of receipt of copy of the order on 14.10.2008 and the appeal should have been filed on or before 30 days i.e., on 13.11.2008 but it was filed only on 01.12.2008 and thereby praying for dismissal of the appeal as time barred one.
5. Per contra, the learned counsel for the respondent/appellant/opposite party in this petition contended that the certified copy of the order was dispatched on 06.11.2008 and from that date within one month i.e., on 01.12.2008 itself appeal was filed and thereby the appeal is well within time and the petition by the complainant is vexatious in nature and to be dismissed.
6. We have heard both sides contentions and rival pleas and well considering those contentions. There is no doubt under the provision of Consumer Protection Act under section 15 Appeal against the order of the District Forum to be filed against such order to the State Commission within the period of thirty 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 30 days if it is satisfied that there was sufficient cause for not filing it within period.
In this case, as alleged by the respondent since there was no delay in filing the appeal and question of entertaining the appeal after expiry of 30 days would not arise. But, the petitioner, contended that he had obtained details regarding the order copies, copy made ready from the District Forum and as per the details, the copy was made ready on 14.10.2008 on which date the petitioner/complainant was also supplied with the free certified copy of the order and hence the opposite party should also have received the same on that date and from which date, the appeal ought to have been filed on or before 13.11.2008 but it was filed only on 01.12.2008 without petition for condoning the delay and thereby it is barred by limitation. Regarding this contention, the petitioner/respondent/complainant brought to our notice relating to the provisions and rules and regulations under the Tamil Nadu Consumer Protection Rule 1988, under rule 4 (10), it is mentioned as follows: Orders of the District Forum shall be signed and dated by the Members of the District Forum constituting the Bench and shall be communicated to the parties free of charges and regarding the procedure of hearing the appeal under Rule 9(3) each memorandum shall be accompanied by the certified copy of the order of the District Forum appealed against and such of the documents as may be required to support grounds of objections mentioned in the memorandum and in case of after expiry of period under rule 9 (4) reads as follows: When the appeal is presented after the expiry of period of limitation as specified in the Act, Memorandum shall be accompanied by an application supported by an affidavit setting forth the fact on which appellant relies to satisfy the State Commission that he has sufficient cause for not preferring the appeal within the period of limitation. As per the above, it shall be accompanied by the petition with affidavit explaining the delay for the same and in those circumstances, it is clear that the appeal cannot be filed without obtaining certified copy of the order free of cost from the District Forum and accompanied with the grounds of appeal within the period of 30 days from the date of such receipt of the copy of the order.
Further, under the Consumer Protection Regulations 2005 Rule 21(1) copy of the order is to be given to the parties free of cost as required under the Act and the Rules made there under and sub clause (2) extra copy shall be issued duly certified by the Registry on payment of Rs.20/- irrespective of number of pages and under rule 3 certified copy of the order shall clearly specify the date when free copy was issued, the date of application, the date when the copy was made ready and the date when it was so delivered to him.
7. In this case, on perusal of the certified copy of the order filed along with the memorandum of appeal grounds, the dates found on the order copy that the District Forum has made endorsement at the end of the last page of the order at page 5 as follows: Memo filed. order dated 25.11.2008. original order copy already sent in C.C.No.589/2008 dated 06.11.2008 initialed by Head Clerk with the rubber stamp seal of Head Clerk affixed and the order copy was certified as certified copy by Head Clerk. From these detail, it is clear that on the basis of memo filed by the petitioner on 25.11.2008 for non receipt of free copy of the order by the opposite party and was mentioned by endorsement of the office that the copy was already sent by post on 06.11.2008 and for this endorsement was made on 25.11.2008.
According to the endorsement, free copy of the order was communicated on 6.11.2008 which should be that date to be taken for consideration as the date for receipt of free copy of order by the opposite party to count the period of limitation for filing appeal and from the date of appeal was filed on 01.12.2008 before expiry of 30 days i.e., on 05.12.2008. Even though, the petitioner by way of memo dated 25.11.2008 obtained certified copy on payment of Rs.20/- as per the endorsement made by the District Forum office the free copy was already sent on 06.11.2008 and from which date within 30 days memorandum of appeal was received by this Commission along with certified copy of the order and accordingly was numbered for filing. We have sent for the records from the District Forum to verify the details of dispatch of the order copy to the parties concerned and on perusal of dispatch register relating to entry for on 06.11.2008 on that date it was recorded in D. Serial No.589/2008 and the name of the party mentioned as New India Assurance Company Limited, Divisional Office No.710 100, Justice Basheer Ahmed Building, 5th Floor, No.45, Moore Street, Chennai-600 001 and final order details as C.C.No.447/2003 order copy dated 30.07.2008 and for this connected order copy register when verified in which in serial No.186, it is mentioned as for C.C.No.447/2003 dated 30.07.2008 and next to that it is mentioned as 14.10.2008 as the date of order made ready and regarding the receipt of copies concerned Mr. K. Ramasamy, advocate for the complainant received on 14.10.2008 and for the other party, an endorsement found as sent by post in Mis.No.589/2008 dated 06.11.2008 and next to that it is entered on as allowed to show the nature of disposal of complaint. The endorsement regarding the dispatch to the opposite party is concerned is already correlated with the dispatch register entry for the date 06.11.2008 in serial No.583/2008. Hence, it is clear that the free copy of the order for the opposite party was sent only on 06.11.2008 by post which was not received by them and thereby made petitioner to file a memo on 25.11.2008 and on the basis of the same, another certified copy was obtained and by taking into consideration for calculation of limitation period from the original date for dispatch as 06.11.2008, the appeal was filed well within time on 01.12.2008 even though the petitioner obtained free copy for the complainant on 14.10.2008 itself which may not be the same date for obtaining free copy of the order by the opposite parties when it was originally dispatched only on 06.11.2008 and thereby the appeal was filed well within time.
8. The petitioner relied on the ruling reported in 1992 (2) CPJ Page 213. which reads as follows: Consumer Protection Act, 1986, Section 18 Appeal to State Commission Limitation 30 days Appeal beyond 30 days of receipt of order. No proper application for condonation Memo of appeal seeking condonation on ground that appellants are in Bombay and their counsel informed that limitation was 3 months Whether sufficient ground ? (No) Result Appeal is time barred (Consumer Protection Rules, 1987 Rule 15(4). While considering this ruling in the very same rulings under the head note it is held the order of the State Commission is dated 03.08.1991. According to the appellant, the received copy by registered post on 26.09.1991 and the appeal was filed on 4th November 1991 that is more than 30 days after receipt of the order . From the above observation itself, it is clear that the appeal was not filed within 30 days from the date of receipt of the order copy from the Consumer Forum.
In our case, the date of receipt of the order by the opposite party was considered as 06.11.2008 and appeal was filed within 30 days on 01.12.2008. Hence, the ruling relied on by the petitioner is helpful only to show that appeal filed belatedly could not be entertained without accompanying the petition for condoning the delay. But in this case such occasion not arise. In those circumstances, we are of the view that the petitioner by misconception come forward to file this petition which is no merit and thereby we are of the view that the petition is to be dismissed as devoid of merits.
In the result, the petition is dismissed. There will be no order as to cost.
MEMBER JUDICIAL MEMBER PRESIDENT S. SAMBANDAM A.K. ANNAMALAI. R. REGUPATHI.