National Consumer Disputes Redressal
Rita Kesh vs Biswanath Singha on 7 May, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3052 OF 2017 (Against the Order dated 24/07/2017 in Appeal No. 44/2017 of the State Commission West Bengal) 1. RITA KESH D/O. LT. ASHWINI KUMAR KESH, KARANGANARA/DURGAPUR, 1, P.S. COKE OVEN DISTRICT-BURDWAN WEST BENGAL ...........Petitioner(s) Versus 1. BISWANATH SINGHA A.C. MARKET, HATTALA ROAD, DURGAPUR-1 WEST BENGAL ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER
For the Petitioner : Mr. Vishal Mahajan, Advocate For the Respondent : Mr. Soumya Dutta, Advocate
Dated : 07 May 2018 ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
This revision is directed against the order of the State Commission West Bengal dated 24.07.2017 vide which the State Commission dismissed the appeal preferred by the petitioner / complainant Rita Kesh on the ground of limitation. Relevant observations of the State Commission in the impugned order are reproduced as under:
Heard both sides and perused the material on record.
This Appeal has been filed by the Appellant after 115 days since expiry of the statutory period of limitation for filing an Appeal. Ongoing through the petition for condonation of delay, we find that the Appellant has refrained from giving any day to day explanation for such huge delay in filing this Appeal. As for the excuses cited by the Appellant to justify delayed filing of this Appeal, it appears, the less we discuss about this, the better.
The impugned order was passed on 17-08-2016. It appears from the certified copy of said order that the Appellant applied for the same on 04-11-2016, i.e., after 79 days since delivery of the impugned order. Such belated action only smacks of lackadaisical attitude on the part of the Appellant which is not at all desirable.
The complaint case was dismissed over delayed filing of the same vis-à-vis statutory period of limitation. It is indeed surprising that despite this, the Appellant did not realize the virtue of timely action to remedy a grievance. Equity aids the vigilant, not those who slumber on their rights.
Needless to say that the alibis put forth from the side of the Appellant does not construe 'sufficient cause' which is a condition precedent to condone delay. As such, the petition cannot be considered favourably. The same is rejected as such.
Consequently, the Appeal stands dismissed being barred by limitation.
2. Counsel for the petitioner has contended that order of the State Commission is not sustainable as it has been passed in utter disregard of Rule 5 (10) of West Bengal Consumer Protection Rules, 1987 which is reproduced as under:
"Orders of the District Forum shall be signed and dated by the members of the District Forum and shall be communicated to the parties free of charge."
3. Counsel for the petitioner has contended that impugned order is not sustainable as the State Commission has failed to appreciate that delay in filing of the appeal was unintentional. It occurred because free copy of the order of the District Forum which is required to be supplied by the Fora under Rule 5 (10) of the West Bengal Consumer Protection Rules was not supplied to the petitioner. Therefore, the petitioner had to apply for the certified copy of the order of the District Forum before filing the appeal, which resulted in delay. It is further contended that State Commission had committed mistake in appreciating that the petitioner was prevented from taking early steps for filing the appeal because of the financial problems due to demonetization of the currency by the government.
4. Counsel for the respondent on the contrary has argued in support of the impugned order.
5. The short point which needs consideration in this revision petition is that in the light of Rule 5 (10) of the West Bengal Consumer Protection Rules, whether period of limitation shall start running from the date of knowledge of the order or from the date of receipt of the free certified copy of the order appealed against?
6. Similar question came up before the Hon'ble Supreme Court in the matter of Housing Board Haryana ( supra) wherein Hon'ble Supreme Court has observed as under:
"Before considering the merits of the submissions made by the learned counsel for the appellant it would be appropriate first to look into the relevant provisions relating to the limitation. Section 15 of the Act makes a provision for appeal and prescribes the limitation for the same. It reads as under:
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 an order, in such form and manner as may be prescribed.
Provided further 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 finding it within that period.
9. Further the State Government made Rules under Sub- Section (2) of Section 30 of the Act known as the Haryana Consumer Protection Rules, 1988 (hereinafter referred as Rules). Sub-rule (10) of Rules 4 and Sub-rule (3) of Rule 8 which are relevant for purposes of these appeals are reproduced hereunder:
Rule 4 (10). -- "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 charge."
Rule 8 (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 objection mentioned in the Memorandum."
10. Reading of the provisions of Section 15 reproduced above goes to show that any person aggrieved by an order made by the District Forum may prefer an appeal to the State Commission within a period of 30 days from the date of the order. But under the proviso the State Commission is enjoined with the discretion to entertain the appeal even after the expiry of the period of 30 days if it is satisfied that there was sufficient cause for not filing the appeal within 30 days from the date of order. Section 15 does not prescribe any other requirement for the purposes of filing a proper and valid appeal to the State Commission. The other requirements for a properly constituted appeal are contained in Sub-rule (3) of Rule 8 which contemplates that each Memorandum of Appeal shall be accompanied by a certified copy of the order of the District forum appealed against and such other documents as may be required to support the grounds of objection mentioned in the Memorandum of Appeal. Sub-rule (10) of Rule 4 further makes it obligatory that the order of the District Forum shall not only be signed and dated by the members of the District Forum constituting the Bench but it enjoins a duty to communicate the order so passed signed and dated by the members of the District Forum, to the parties free of charge.
11. From the scheme of the Act it becomes apparent that the Consumer Protection Act 1986 has been enacted with the object to provide for better protection of the interest of the consumers, as a measure for economical and speedy remedy for the settlement of their disputes and matters connected therewith. It is with this object in view that Rule 4 (10) has also been made. It provides for communication of the order of the district Forum to the parties free of charge in order to avoid the delay as well as to save the parties from the burden of expenses that may be incurred for obtaining the certified copy. If the rule itself enjoins a duty for communicating the order of the District Forum duly signed and dated to the parties free of charge, there will hardly be an occasion for the parties to make an application for obtaining a certified copy thereof. Thus, Section 15 of the Act cannot be read in isolation but it has to be read alongwith Rules 4 (10) and 8 (3) of the Rules and a combined reading of Section 15 and the Rules reproduced above gives an impression that the purposes, object and intention of these statutory provisions is to protect the interest of the parties before the District Forum by making it obligatory on the District Forum to provide a copy of the order duly signed and dated by the members of the Bench and the period of limitation prescribed with regard to the filing of an appeal shall be computed as commencing from the date of communication of the order in the manner laid down in sub-rule (10) of the Rule 4.
12. In the facts and circumstances stated above. The date of pronouncement of the order in the open Court by itself cannot be the starting point of determining the period of limitation under Section 15 of the Act. It has also to be shown that the order of the District Forum so pronounced was duly singed and dated by the members of the District Forum constituting the Bench and the same was communicated to the parties free of the charge. That being so, it has to be appreciate that mere pronouncement of an order in the open Court will not be enough but under the scheme of the Rules a copy of the said order has also to be communicated to the parties affected by the aid order so that the party adversely affected therefrom may have a fair and reasonable opportunity of knowing that text, reasons and contents thereof so as to formulate grounds of attack before the appellant or higher forums. In the absence of such communication of signed and dated order, the party adversely affected by it will have no means of knowing the contents of the order so as to challenge the same and get it set aside by the appellate authority or the higher Forums.
7. On reading of the above, it is clear that under Consumer Protection jurisdiction, the period of limitation for filing appeal or revision shall start running from the date on which free copy of the certified order is communicated to the party in the manner laid down in Rule 4 (10) of the Haryana Consumer Protection Rules, 1988. Perusal of Rule 5 (10) of the West Bengal Consumer Protection Rules would show that said rule is exactly similar to the Haryana Consumer Protection Rules. Therefore, in my opinion, the judgment of Hon'ble Supreme Court is squarely applicable to the facts of this case. Otherwise also, the petitioner has a good case in appeal. Therefore, also the State Commission ought to have condoned the delay in the interest of justice.
8. In view of the discussion above, I allow the revision petition, set aside the impugned order of the State Commission and condone the delay in filing of the appeal by the petitioner.
9. Matter is remanded back to the State Commission to decide the appeal in accordance with law after issuing notice to the parties. Parties to appear before the State Commission on 11.07.2018.
......................J AJIT BHARIHOKE PRESIDING MEMBER