National Consumer Disputes Redressal
M/S. Ram Engineering vs Shri Nagorao P. Gangaram Mirkute on 1 February, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1269 OF 2012 with I.A. No.01 of 2012 (Stay Application) (From the order dated 27.1.2012 in M.A. No.79 & 80 in Appeal No.1034/2006 of the State Commission, Mumbai, Maharashtra) M/s. Ram Engineering Through its Proprietor Atmaram Tatyasaheb Shinde Jintur Road, Parbhani, At Post Parbhani, distt. Parbhani Petitioner Vs. 1. Shri Nagorao P. Gangaram Mirkute Aged: 38, Bus. Agriculture At Post. Kokalgaon, Tq. Naigaon Distt. Nanded 2. Proprietor Shri J.M. Gandhi Ajay Tractor, Hyderabad Road, Wazegaon, Nanded 3. Masey Fergussion Prop. Tractors & Farm Equipments, Engineering Shri Amit Kulkarni, C/15, Parmar Plaza, Seevarkar Road, Vanori, Pune, Distt. Pune 4. The National Insurance Company Ltd. Divisional Manager, Gurugovind Singhji Market Nagina Ghat Road, Nanded 5. Branch Manager, The National Insurance Company Branch -2, 94-A, Dr. Nagappa Road, United Shopping Complex, Coibatore 600 018. ...Respondents BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR. JUSTICE K.S. CHAUDHARI, MEMBER For the Petitioner : Mr. Dalip annasaheb Taur, Advocate with Mr. Amol V. Deshmukh, Advocate Pronounced on: 1st February, 2013 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER In this revision petition there is challenge to order dated 27.1.2012 passed by State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench Aurangabad (for short, State Commission) passed in M.A. No.79 and 80/2011 in F.A. No.1034 of 2006.
2. Brief facts are that on 16.1.2001, respondent no.1/complainant purchased a tractor from respondent no.2/O.P. No.1. Later on, Petitioner/O.P.No.2 has taken the dealership of respondent no.2. In March, 2003, respondent no.1 approached the petitioner to remove some defects in his tractor which were removed.
Again in September, 2003 respondent no.1 approached petitioner for repair of the tractor, but petitioner was not ready to repair the tractor even though warranty was in force at that time. Hence, petitioner filed consumer complaint before the District Consumer Disputes Redressal Commission, Nanded (for short District Forum).
3. The complaint was contested by the petitioner.
4. District Forum, vide order dated 21.3.2006 allowed the complaint and directed the petitioner to pay compensation of Rs.50,000/- with interest @ 9% p.a. w.e.f. 20.11.2003, within 30 days and to handover the tractor in repaired position without any charge.
5. Aggrieved by the order of District Forum, petitioner filed appeal before the State Commission.
6. Appeal of the petitioner was dismissed in default on 13.10.2010. Thereafter, petitioner filed an application for restoration and for recall of order dated 13.10.2010 alongwith application for condonation of delay. Application for condonation of delay was dismissed, consequently restoration application was also dismissed by the impugned order.
7. Hence, this revision.
8. We have heard learned counsel for the petitioner.
9. It is contended by learned counsel that appeal was filed before Mumbai Bench of the State Commission. Subsequently, Aurangabad Bench of State Commission was constituted and matter was transferred to that Bench. Notice for final hearing was issued to the petitioner as well as respondents for 12.4.2010. However, counsel for petitioner failed to appear on 12.4.2010, 7.8.2010, 27.8.2010 and 13.10.2010. Therefore, appeal was dismissed presuming that petitioner is not interested in pursuing the matter. Petitioner was under bona fide impression that, his Advocate in Mumbai was handling the case. However, counsel was not aware of the constitution of Bench at Aurangabad, as such there is no willful default on the part of the petitioner. Thus, due to unawareness of his counsel about constitution of the Bench at Aurangbad, petitioner could not represent his case which is a sufficient cause for condoning the delay.
10. Impugned order of the State Commission states;
Advocate D.N. Shinde present for applicant. This M.A. No. 80/11 is filed by the applicant for restoration of Appeal No.1034/2006 which was dismissed in default on 21.3.2006. This application for restoration is itself filed with delay condonation application. Delay shown is of 126 days. According to applicant delay caused is because of appeal was transferred from Mumbai to this Circuit Bench, Aurangabad and the counsel for the appellant who was from Mumbai had not intimated about the said to the appellant and the counsel also not appear in the appeal. Delay caused is of 126 days is inordinate delay. The cause given is not satisfactory. Delay condoantion application i.e. M.A. No.79/2011 is dismissed. Consequently, restoration application dismissed.
Even otherwise, in view of the decision of the Apex Court in the mater Rajeev Hitendra Pathak and others Vs. Achut Kashinab Karekar and another IV(2011)-CPJ-35(SC)=2011(5)-ALL M.R.,-951(SC), the Commission has not empowerment to restore the matter, the application stands dismissed and disposed of accordingly.
11. It is well settled that sufficient cause for condoning the delay in each case is a question of fact.
12. In Ram Lal and Ors.
Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
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.
13. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed;
We hold that in each and every case the Court has to examine whether delay in filing the special appeal 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.
14. Honble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as under;
We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.
15. Apex Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has observed ;
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. There is no provision under the Consumer Protection Act, 1986, for filing application of restoration of the appeal before the State Commission. The mere fact that petitioner has been pursuing a wrong remedy before a wrong forum, will not entitle him to have the delay condoned.
In this context, it is pertinent to quote the decision of Honble Supreme Court in M/s. Advance Scientific Equipment Ltd. & Anr. Vs. West Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal (Civil) Nos.17068 - 17069/2010, decided on 9 July 2010) wherein it observed inter alia, as under:-
"..We are further of the view that the petitioners' venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction".
17. In the application for condonation of delay, petitioner has nowhere mentioned the name of the counsel who was engaged at Mumbai nor his affidavit has been filed to support the averments made in the application. As per petitioners own case, he remained absent before the State Commission for four hearings. There is no reason as to why petitioner was not present before the State Commission. Moreover, it is required that a litigant must be vigilant and diligent in pursuing his case. It is expected from a litigant to keep himself posted with the next date of hearing.
18. Observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case.
19. Thus, gross negligence, deliberate inaction and lack of bonafides is imputable to the petitioner. No sufficient grounds are made out for condoning the long delay of 126 days in filing the appeal before the State Commission. Application for condonation of delay under these circumstances, was rightly dismissed by the State Commission. Moreover, a valuable right has also accrued in the favour of the respondents.
20. Thus, present petition being without any legal basis is hereby dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only). Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Welfare Fund as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today, failing which petitioner shall be liable to pay interest @ 9% per annum till realization.
21. Pending applications also stand disposed of.
22. List on 5.4.2013 for compliance.
..J (V.B. GUPTA) PRESIDING MEMBER ..J (K.S. CHAUDHARI) Sg/ MEMBER