State Consumer Disputes Redressal Commission
Shailendra Kumar Maurya vs Good Morning India Media Pvt. Ltd on 24 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 164 of 2014 Date of Institution : 23.04.2014 Date of Decision : 24/04/2014 Shailendra Kumar Maurya S/o Sh.Baijnath Maurya, R/o H.No.563, Mauli Jagran, UT, Chandigarh. Appellant/complainant V e r s u s Good Morning India Media Pvt. Ltd. (Aaj Samaj), Office at 3rd Floor, Tower-D, DLF Building, IT Park, Chandigarh 160101, through its General Manager. ....Respondent/Opposite Party Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. Vikram Singh, Advocate for the applicant/appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 16.01.2014, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant).
2. The facts, in brief, are that the complainant was working as an agent/hawker, with the Opposite Party, and, as such, used to purchase the newspapers, from it, and further distribute the same, to earn his livelihood. It was stated that, in the year 2012, the Opposite Party, announced the scheme of lucky draw to get more business. As per the scheme of the Opposite Party, the agent/hawker getting them 250 bookings of its newspaper, would be entitled to some prizes. It was further stated that, as per the said scheme, the hawker/agent, who came first in position, would get a bike. It was further stated that the complainant, accordingly, procured booking of more than 250 newspapers, and became entitled to participate, in the said lucky draw. The pamphlet/document, announcing the said scheme, was not available with the complainant, as the same was in the exclusive possession of the Opposite Party.
3. It was further stated that, on 29.05.2013, lucky draw of the scheme was held, and the name of the complainant appeared as a winner of the same (lucky draw). It was further stated that, instead of giving a new Bajaj Platina bike, as promised, an old Bajaj Platina bike, was handed over to the complainant, by the Opposite Party. It was further stated that when the complainant raised an objection to it, the Opposite Party, did not listen. It was further stated that the Opposite Party, did not give registration certificate of the said bike, to the complainant, but, on the other hand, issued a letter, on the letterhead of Aaj Samaj, Annexure C-2, as a proof of ownership of the same. It was further stated that the Opposite Party had promised to get the new motorcycle transferred, in the name of the complainant, but the same was not done by it. It was further stated that the motorcycle given by the Opposite Party, in the lucky draw was literally a piece of junk, and not in a plying condition. It was further stated that, moreover, in the absence of registration, insurance, pollution certificates etc., the complainant could not ply the bike, on road. It was further stated that the complainant, requested the Opposite Party, a number of times, for replacement of the bike, in question, with a new one, as per the scheme, aforesaid, but to no avail. It was further stated that the aforesaid acts of the Opposite Party, 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 Party, to replace the motorcycle, in question, with a new one, as per the scheme; pay compensation, to the tune of Rs.1 lac, for mental agony, physical harassment, deficiency, in rendering service, and adoption of unfair trade practice; and cost of litigation, to the tune of Rs.21,000/-.
4. The Opposite Party was duly served, but none put, in appearance, on its behalf, as a result whereof, it was proceeded against exparte, by the District Forum, on 23.12.2013.
5. The complainant led evidence, in support of his case.
6. On 02.01.2014, when the complaint was fixed for final arguments, none put in appearance on behalf of the complainant. Accordingly, the District Forum, after going through the evidence, and record of the case, dismissed the complaint, as stated above.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
8. Alongwith the appeal, an application for condonation of delay of 31 days, as per the applicant/appellant (as per the office report 32 days), in filing the same (appeal), has been moved. In the application, it was stated by the applicant/appellant that since certified copy of the order impugned, dispatched by the District Forum, was not received by him, he had to collect the same, by hand, from the District Forum, in the month of March, 2014, whereafter, the same (certified copy of the order impugned), was handed over to the Counsel concerned. It was further stated that, however, the Clerk of the Counsel concerned, inadvertently, kept the certified copy of the order impugned, in a wrong brief/case, which was located later on, and, hence, the appeal was filed on 23.04.2014. It was further stated that, on account of the reasons, aforesaid, the delay of 31 days (as per the office report 32 days), in filing the appeal occurred. It was further stated that the delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
9. 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.
10. The question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 31 days, as per the applicant/appellant (as per the office report 32 days), in filing the appeal, under Section 15 of the Act. 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 bona-fide 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.
11. 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.
12. 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.
13. 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]
14. I n 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
15. 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
16. 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. The stand taken by the applicant/appellant, in the application that the delay of 31 days (as per the office report 32 days), occurred, on account of the reason that, since a certified copy of the order impugned, was not received by him, from the District Forum, and he had to collect the same, by hand, from the District Forum, on the month of March, 2013, whereafter, the same (certified copy of the order impugned), was handed over to the Counsel concerned, but, his (Counsel) Clerk, inadvertently, kept the same (certified copy of the order impugned,) in a wrong brief/case, which finally was located later on, does not merit acceptance, for the purpose of condoning the delay. Perusal of the certified copy of the order impugned, placed on record by the applicant/appellant, himself, reveals that the same was received by him(applicant/appellant), by hand, on 20.02.2014, and not in the month of March, 2014, as stated in the application aforesaid. Even, the affidavit of the Clerk of the Counsel, who allegedly, inadvertently, kept the same (certified copy of the order impugned,) in a wrong brief/case, is not produced on the record. It appears that the applicant/appellant, just slept over the matter, and, ultimately, woke up from his slumber, on 23.04.2014, and filed the appeal, after the delay of 31 days, as per the applicant/appellant, (as per the office report 32 days). Since, the instant appeal, has been filed, after a delay of 31 days, as per the applicant/appellant, (as per the office report 32 days), without furnishing any plausible explanation, it could be said that the applicant/appellant was not diligent in pursuing the matter. As stated above, 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 copy of the order. The applicant/appellant did not act, with due diligence, resulting into delay of 31 days (as per the office report 32 days), in filing the appeal, which is beyond the prescribed period of limitation. As stated above, the cause, set up by the applicant/appellant, in the application, for condonation of delay, does not merit acceptance. The mere fact that 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 he could be shown undue indulgence. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 31 days (as per the office report 32 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.
17. 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.
18. 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 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 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.
19. Now coming to the merits of the appeal, it may be stated here, that, no doubt, the Opposite Party was proceeded against exparte, yet, it was the duty of the District Forum, to ascertain, as to whether, the complainant, fell within the definition of a consumer or not. According to the complainant, he was an agent/hawker of the Opposite Party, and after obtaining the newspapers, from it, used to distribute the same. The complainant did not pay any consideration, for the purpose of handing over the bike to him. It was only the lucky draw, which was held by the Opposite Party, and whosoever got first position in the same (lucky draw), was to be given some gift. Providing of gift to the winner in the lucky draw, without any consideration, did not bring him/her (winner), within the ambit of a consumer, as defined under Section 2(1) (d) (i) (ii) of the Act. Had some consideration been paid by the complainant, for participating in the lucky draw, the matter would have been different. In our considered opinion, the complainant did not fall within the definition of a consumer.
20. Even if, it is assumed, that the complainant fell within definition of a consumer, he was governed by the terms and conditions, contained in Annexure C-2. Annexure C-2 is the Certificate, which was issued by the Opposite Party, to the complainant. According to this document, the Opposite Party, gave a bike to the complainant, as a gift, as he was a winner in the lucky draw scheme, and declared him, as the caretaker of the same, and not the owner. Neither the pamphlet/ document, in respect of the said lucky draw scheme, nor the terms and conditions thereof, were placed, on the record, by the complainant. There is no document, produced on the record, to prove that the Opposite Party was bound to deliver Bajaj Platina bike, to the complainant, alongwith the certificate of ownership. Since, according to Annexure C-2-Certificate, vide which the bike, in question, was given to the complainant, as he was winner, in the lucky draw, by way of gift, he was only the caretaker, and was responsible for any type of damage, caused to it, his claim that he was not issued registration certificate, in his name, in respect of the bike, in question, by the Opposite Party, amounted to deficiency, in rendering service, and adoption of unfair trade practice, does not stand proved.
21. The District Forum, was, thus right, in holding that the Opposite Party was neither deficient, in rendering service, nor indulged into unfair trade practice. The order of the District Forum, being legal and valid, is liable to be upheld.
22. No other point, was urged, by the Counsel for the appellant.
23. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
24. For the reasons, recorded above, the application for condonation of delay of 31 days, as per the applicant/appellant (as per the office report 32 days), being devoid of merit, is dismissed. Consequently, the appeal, under Section 15 of the Act, is also dismissed, being barred by time, as also on merits, at the preliminary stage, with no order as to costs.
25. Certified copies of this order, be sent to the parties, free of charge.
26. The file be consigned to Record Room, after completion Pronounced.
April, 24, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg