State Consumer Disputes Redressal Commission
Ranjan Naik vs Tusker Motorcycles Pvt. Ltd. & Others on 10 January, 2018
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
F.A. No. 74/2017
Ranjan Naik,
Aged 51 years,
r/o Guirim, Sonar Bhat,
Bardez - Goa. ... Appellant
v/s
1. Tusker Motorcycles Pvt. Ltd,
Through its Managing Director,
Mr. Srinivas Reddy,
Goa Harley Davidson
Marine Plaza, Marine Road,
Panaji - 403002.
2. The Managing Director
Harley Davidson Motor Company
3700 W. Juneau Ave., Milwaukee, WI 53208,
United States of America.
3. H. D Motor Company India Pvt. Ltd.,
1105 Ashoka Estate,
24 Barakhamba Road, New-Delhi-110001. ... Respondent
Adv. Ms. Sapna Mordekar for the Appellant.
None present for Respondents No. 1 and 2.
Adv. Mr. J. Mulgaonkar for Respondent No. 3.
Coram: Shri. Justice U. V. Bakre, President
Shri. Jagdish Prabhudessai, Member
Dated: 10/01/2018
JUDGMENT
[Per Justice Shri. U. V. Bakre, President] This Appeal is directed against the Order dated 08/08/2017 passed by the Consumer Disputes Redressal Forum, North Goa (the "Forum", for short) in Consumer Complaint No. 37/2017. The 2 Appellant is the Complainant and Respondents are the Opposite Parties (OPs, for short) in the said Complaint.
2. The notice of the said Complaint was served on OP No. 3 on 25/04/2017. However, the OP No. 3 did not file written version within 30 days from the date of receipt of the said notice. The OP No. 3 did not also file any application for extension of time to file the written version. Even after completion of 45 days from the date of receipt of the notice, the OP No. 3 did not file the written version. It appears that the OP No. 3 filed the written version after delay of 39 days from the date of expiry of said 45 days and along with the same filed the application seeking condonation of delay in filing the written version. In the said application, the OP No. 3 stated that the said delay was caused for reasons beyond the control of OP No. 3 since the records pertaining to the case had to be coordinated from various offices located in different parts of the country and further since the concerned employees of OP No. 3 had to travel for official purposes. The OP No. 3 stated that the application has been filed bonafide and be allowed in the interest of justice and no prejudice will be caused to the Complainant. The application was supported by affidavit of the representative of the OP No. 3, who called himself as duly authorized representative.
3. The Complainant filed affidavit-in-reply to the said application denying that the application has been made in a bonafide manner and that no prejudice will be caused to the Complainant. The Complainant stated that the application lacks details as to from which offices and what records had to be coordinated and about the names of the employees of the OP No. 3 who had to travel for official purpose, the reasons for their travel, duration of absence or the place of travel. The Complainant stated that the application contains bare statements without supporting details or documents and the grounds mentioned are all frivolous.
34. Upon hearing the Lr. Counsel for the parties, vide the impugned order, the Forum relied upon the Judgment of the Apex Court in the case of "Reliance General Insurance Co. Ltd., & Anr. vs. M/s. Mampee Timbers and Hardwares Pvt. Ltd., & Anr."(Civil Appeal no. 2365 of 2017 and Judgments of the National Commission in the case of "BTPB Ltd vs. Nalin Khosla" (First Appeal no. 270 of 2016) and "RENAULT INDIA PVT. LTD., V/s ----" [(dt. 01 Aug 2017) Order IA No. 3998 of 2017]. The Forum held that filing or not filing the written version in time is a procedural lapse and such an application seeking extension of time, therefore, needs to be considered liberally in the larger interest of justice and the Complainant can be always compensated for inconvenience that she suffered and for delaying the proceedings. However, the Forum further observed that the written version was not validly filed since the same has not been supported by an authority letter or proper resolution in favour of the signatory to the same. Considering the said judgments, the overall circumstances and in the larger interest of justice, the Forum held that the delay in filing written version deserves to be condoned. The application for condonation of delay has been allowed. The delay has been condoned and the written version of OP No. 3 has been taken on record subject to costs of Rs. 3000/- to be paid to the Complainant on or before the next date of hearing as condition precedent. The OP No. 3 has been further directed to place on record proper authorization letter of the signatory who has signed the written statement, in accordance with law, along with an application, within a period of two weeks from the date of the order and furnish copy of the same to the Complainant, failing which the written version shall be discarded. It has been further directed that if such authorization letter is filed, the Complainant will be entitled to reply to the same opposing the same and shall be at liberty to raise all available pleas attacking the validity of such authorization and such pleas, if raised, shall be dealt with on merits at the stage of 4 final disposal of the matter. The Complainant is aggrieved by the above order.
5. Heard arguments. Ms. Mordekar, Lr. Counsel argued on behalf of the Complainant whereas Mr. Mulgaonkar, Lr. Counsel argued on behalf of the OP No. 3. The OPs No. 1 and 2 remained absent.
6. Relying upon the judgment of three-judge Bench of the Supreme Court in the case of "Dr. J. J. Merchant V/s Shrinath Chaturvedi"
(Appeal no. 7975 of 2001), reported in [(2002) 6 SCC 635], Ms. Mordekar, Lr. Counsel for the Complainant argued that the period of 45 days envisaged in Section 13(2) (a) of the Consumer Protection Act, 1986 (the 'Act', for short) is mandatory. Lr. Counsel pointed out that in the present case no written version was filed within 30 days from the date of receipt of the Complaint and no application for extension of time up to 45 days was filed and even thereafter no written version was filed within 45 days and therefore the question of entertaining the application for condonation of delay and granting the same did not arise. Lr. Counsel for the Complainant urged that in "M/s. Bhasin Infotech and Infrastructure Pvt. Ltd. Vs. M/s Grand Venezia Buyers Association" (Civil Appeal No.(s). 1083 - 1084/2016) , a two-judge Bench of the Supreme Court has referred the said appeals to a five-judge Bench to resolve the conflict once for all but the larger Bench has not yet decided the point. Lr. Counsel argued that the three-judge Judgment in "Dr. J. J. Merchant and anr" (supra), has not been stayed and still in force. Lr. Counsel for the Complainant submitted that the judgment in"Reliance General Insurance Co. Ltd.," (supra), is delivered by a two-Judge Bench and therefore the judgment of three-Judge Bench in "Dr. J. J. Merchant and anr." should be followed. She also argued that the judgment in "Topline Shoes Ltd., vs. Corporation Bank" (2002 6 SCC 33), which holds a contrary view, is a judgment of two Judges of the Hon'ble Supreme Court and therefore the judgment in "Dr. J. J. Merchant's" case, which is of three-judges Bench, prevails 5 and is bound to be followed. In this regard, Lr. Counsel for the Complainant relied upon the judgment dated 27/03/2014 passed by the Hon'ble Supreme Court in the Criminal Appeal No. 689/2014. ("Sundeep Kumar Bafna Vs. State of Maharashtra & Anr."). She pointed out that in the case of "BTPB Ltd vs. Nalin Khosla" (F.A. No. 270/2016) referred to by Forum, the Complainant had give concession for taking on record the written version in order to cut short the delay and hence the said order is not applicable to the present case. Lr. Counsel, however, invited our attention to the costs of Rs. 75,000/- awarded while granting opportunity to file written version. Ld. Counsel produced a copy of the order dated 29/08/2016, passed by the Supreme Court, in Special Leave to Appeal (C) No.-(s). 24535/2016, filed by BPTP Ltd. against the above order in Civil Appeal No. 270/2016 and submitted that even the Apex Court did not interfere with the said order of heavy costs. Lr. Counsel submitted that in the present case meager amount of Rs. 3000/- have been awarded as costs. Lr. Counsel in the alternative argued that even otherwise no sufficient cause for condonation of delay was shown and even no authority to sign the written version was filed and in such circumstances the delay could not have been condoned. The Counsel has relied upon the order dated 22/01/2016 passed by the Hon'ble National Commission in the First Appeal No. 1027/2015 ("M/s. L & T Finance Ltd. Vs. Jagdish Tulsiram Patil"). Lr. Counsel therefore urged that the Appeal be allowed and impugned order is quashed and set aside.
7. On the other hand, Mr. Mulgaonkar, Lr. Counsel for OP No. 3 argued that it is well settled that in every matter the interest of justice should prevail and hyper technical approach should not be taken. He relied upon the judgment of the Hon'ble Supreme Court in the case of "Topline Shoes Ltd. Vs. Corporation Bank", reported in [(2002) 6 SCC 33]. Lr. Counsel for OP No. 3 submitted that the Hon'ble two-Judge Bench of the Supreme Court in the case of 6 "Reliance General Insurance Co. Ltd.," (supra) gave directions after considering all the judgments and circumstances and therefore the said directions are bound to be followed. He submitted that appropriate reasons were given for condoning the delay and it is well settled that liberal approach should be taken while condoning the delay. Lr. Counsel for OP No. 3 further contended that the delay was not inordinate and the matter has not reached the stage of trial. He further submitted that appropriate costs of Rs. 3000/- have been ordered to be paid and therefore no prejudice was caused to the Complainant. Lr. Counsel for OP NO. 3 therefore urged that the Appeal has no merits and deserves to be dismissed.
8. We have gone through the entire material on record.
9. In the case of "Topline Shoes Ltd." (supra), by judgment dated 08/07/2002, a two-judge Bench of the Hon'ble Apex Court has held that the nature of time-limit comprising the initial period and the extended period prescribed under clause (a) of sub-section (2) of Section 13 of the Consumer Protection Act, 1986 (the 'Act;, for short), for the filing of opposite party's written version is directory and not mandatory. It has been held that the Forum may refuse to extend the time beyond 15 days in view of Section 13(2)(a) of the Act but exceeding the period of 15 days of extension would not cause any fatal illegality in the order. However, in the case of "Dr. J. J. Merchant" (supra),by judgment dated 12/08/2002, a three - Judge Bench of the Hon'ble Supreme Court has held that the OP has to submit his version within 30 days from the date of receipt of Complaint by him and the Commission can give at the most further 15 days for some unavoidable reasons to file its version and that the same should be strictly adhered to. In the case of "Kailash Vs. Nankhu and Ors", reported in [(2005) 4 SCC 480], which pertained to election law, the issue involved was whether time limit of 90 days as prescribed by the proviso to Rule 1 of Order VIII of the Civil Procedure Code was mandatory or directory in nature. A three -
7judge Bench of the Hon'ble Supreme Court, in the case supra, by judgment dated 06/04/2005, came to the conclusion that the provisions of Order VIII, Rule 1 of C.P.C. are not mandatory but directory in nature and therefore, in the interest of justice, further time for filing reply can be granted, if the circumstances are such that require grant of further time for filing the reply. In the case of "Salem Advocate Bar Association Vs. Union of India", reported in [2005) 6 SCC 344], a Bench of three judges of the Hon'ble Supreme Court, by judgment dated 02/08/2005, held that in construing the provisions of Order VIII, Rules 1 and 10 of C.P.C., the doctrine of harmonious construction is required to be applied and the effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after the expiry of 90 days provided in Rule 1 of Order VIII of C.P.C. In the case of "New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd.", (Civil Appeals No. 10941 and 10942 of 2013), reported in [2015 LawSuit (SC) 1218], by judgment dated 04/12/2015, a Bench of three judges of the Hon'ble Supreme Court held that the judgment delivered in the case of "Dr. J. J. Merchant" (supra), holds the field and that the District Forum can grant a further period of 15 days to the opposite party for filing his version or reply and not beyond that.
10. In the case of "M/s. Bhasin Infotech and Infrastructure Pvt. Ltd."(supra), the Bench of two judges of the Hon'ble Apex Court (one being the Hon'ble Chief Justice), vide order dated 11/02/2016, observing that there is an apparent conflict between the decisions of the Apex Court in Topline Shoes Limited vs. Corporation Bank [(2002) 6 SCC 33], Kailash vs. Nankhu, [(2005) 4 SCC 480], Salem Advocate Bar Association Vs. Union of India [(2005) 6 SCC 344] on one hand and J. J. Merchant & Ors. Vs. Shrinath Chaturvedi, [(2002) 6 635] and NIA Vs. Hilli Multipurpose Cold Storage [2014 AIOL 4615], on the other, insofar as the power of the Courts to extend time 8 for filing of written statement/reply to a complaint is concerned, referred the said appeals to a five-judge Bench to resolve the conflict once and for all. As submitted by the Ld. Counsel for the Complainant, the said larger Bench of the Hon'ble Supreme Court has not yet decided the reference. However, in the said case of "M/s. Bhasin Infotech and Infrastructure Pvt. Ltd."(supra), the Hon'ble Supreme Court, pending decision of the larger bench, observed that the proper course was to permit the opposite party to file its response, which was delayed by just about one day. The Hon'ble Apex Court permitted the opposite party to file its reply subject to payment of Rs. 50,000/- as costs to the complainant, subject to the condition that the complainant is ready and willing to take the proceedings forward and if the complainant has any objection to the continuance of the proceedings pending disposal of the appeals, the proceedings shall remain stayed till disposal of the appeals. The contention of the Ld. Counsel for the Complainant that in the case supra, before the Apex Court, the delay was of only one day and hence the written version was permitted to be filed bears no substance since the question is whether the written version can at all be filed after the expiry of 45 days from the date of service of notice. In the same case of "New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd.", (Civil Appeals No. 10941 and 10942 of 2013), subsequently by judgment dated 18/01/2017, reported in [2017 LawSuit (SC) 332], a two-judge Bench of the Hon'ble Supreme Court again held that the law laid down by a three-judge Bench of the Supreme Court in the case of "Dr. J. J. Merchant" (supra) should prevail. However, it has been further observed that sub-clause 2(a) of Section 13 of the Act is not explicit regarding the commencing point of the period of 30 days. The Hon'ble Supreme Court has observed that the question: what is the commencing point of the limitation of 30 days stipulated in Section 13 of the Act is required to be decided authoritatively. The Hon'ble Apex Court has observed as under:
9"11. On a conjoint reading of clause (a) and (b) of sub-section (2) of Section 13, it appears to us that the period of limitation of 30 days stipulated by the statue within which time the opposite party to a consumer dispute is to state his version of the case does not depend upon any statutorily determined point from which the period of limitation starts running. The period of limitation can vary with each case depending upon the decision of the ADJUDICATORY BODY to indicate the point on which the period of limitation starts running.
.......................
26. We are also of the opinion that the declaration made by this Court in JJ Merchant's case that the period of 30 days is to be reckoned from the date of receipt of the notice of the admission of the complaint by the ADJUDICATORY BODY has no basis in the text of the Act."
11. Thereafter, in Civil Appeal No. .... of 2017 (D. No. 2365 of 2017) ["Reliance General Insurance Co. Ltd and Anr. Vs. M/s Mampee Timbers And Hardwares Pvt. Ltd. And Anr."], by order dated 10/02/2017, after referring to the interim order passed in "M/s. Bhasin Infotech and Infrastructure Pvt. Ltd."(supra), a two-judge Bench of the Hon'ble Supreme Court has given interim directions pending decision of the larger bench on the issue "whether the written version can be admitted or not after the stipulated period of 45 days under the Consumer Protection Act" and the said directions are that it will be open to the concerned Fora to accept the written version filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs and to proceed with the matter.
12. The question is whether in spite of the above directions of the Hon'ble Supreme Court, we are bound to follow the judgment in the case of "Dr. J. J. Merchant" (supra). In the case of "Sundeep Kumar 10 Bafna" (supra), relied upon by Ld. Advocate for the Complainant, the Hon'ble Supreme Court has observed as under:
"13. The Constitution Bench in Union of India vs Raghubir Singh, 1989 (2) SCC 754, has come to the conclusion extracted below:
'27. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the Rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. ...' 11
14. This ratio of Raghubir Singh was applied once again by the Constitution Bench in Chandra Prakash v. State of U. P. : AIR 2002 SC 1652. We think it instructive to extract the paragraph 22 from Chandra Prakash in order to underscore that there is a consistent and constant judicial opinion, spanning across decades, on this aspect of jurisprudence:
'Almost similar is the view expressed by a recent judgment of a five-Judge Bench of this Court in Parija's case (supra). In that case, a Bench of two learned Judges doubted the correctness of the decision a Bench of three learned Judges, hence, directly referred the matter to a Bench of five learned Judges for reconsideration. In such a situation, the five-Judge Bench held that judicial discipline and propriety demanded that a Bench of two learned Judges should follow the decision of a Bench of three learned Judges. On this basis, the five-Judge Bench found fault with the reference made by the two-Judge Bench based on the doctrine of binding precedent.'
15. It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam if any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co- equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam."
1213. There is no dispute that the statement of the law by a Division Bench is binding on a Division Bench of the same or lesser number of Judges. However, in the case of "M/s. Bhasin Infotech and Infrastructure Pvt. Ltd."(supra), the order is by two-judge Bench of the Supreme Court which includes the Hon'ble Chief Justice of India and there is no finding that the judgment in any of the cases mentioned therein is wrong. However, while giving directions, the Hon'ble two-judge Bench has considered all the judgments including the one in the case of "Dr. J. J. Merchant" (supra). In the case of "Reliance General Insurance Co. Ltd and Anr. (supra), also the directions have been given to all the Fora after considering all the judgments and mainly the one in "M/s. Bhasin Infotech and Infrastructure Pvt. Ltd."(supra). Hence the said directions are bound to be followed. The Forum has referred to the judgments of the Hon'ble National Commission in the case of "BTPB Ltd vs. Nalin Khosla" (First Appeal no. 270 of 2016) and (the other) in the case of "RENAULT INDIA PVT. LTD., V/s......."[(dt. 01 Aug 2017) Order IA No. 3998 of 2017] wherein the National Commission having regard to the observations of the Hon'ble Supreme Court made in the said case of "Reliance General Insurance Co. Ltd., & Anr." (supra) has permitted the written statement to be taken on record by condoning the delay and imposing costs. In the case of "V. Trans India Ltd. Vs. M/s. S. K. International and Anr." (First Appeal No. 393/2017), the State Commission had passed the impugned order in the complaint filed by the respondent vide which the appellant/opposite party was not allowed to file their written version in proceedings on the ground that the appellant failed to file the same within 45 days of the admission of the complaint, as laid down in Section 13 of the Act. The delay was of more than 5 months. By judgment dated 27/07/2017, reported in [1986-2017 (2) Consumer 426 (NS)], passed in the case supra, the Hon'ble National Commission relied upon the order in the case of "Reliance General Insurance Co. Ltd., & Anr." (supra) and allowed the appeal. The 13 National Commission held that looking at the facts and circumstances of the case, for proper adjudication of the issues involved, it shall be important to have the written version of the appellant on record. In the interest of justice, the appellant was allowed to bring the written version on record subject to costs of Rs. 50,000/-.
14. In the present case, the delay is short of only 39 days. The OP No. 3 stated that the said delay was caused for reasons beyond its control as the records pertaining to the case had to be coordinated from various offices located in different parts of the country and since the concerned employees of the OP No. 3 had to travel for official purposes. Considering the reply filed by the Complainant and the objection Raised, the Forum allowed the application for condonation of delay in filing the written version subject to costs of Rs. 3,000/- and subject to production of authorization letter to the signatory of the written version. We do not find any error in the impugned judgment and order. No interference is called for.
15. In the result, the appeal is dismissed with no order as to costs.
[Shri. Jagdish Prabhudessai] [Justice Shri. U. V. Bakre]
Member President
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