State Consumer Disputes Redressal Commission
M/S Volkswagen India Pvt. Ltd., vs 1. Mr. Ashok K. Tuli, on 12 September, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Revision Petition No. : 31 of 2014 Date of Institution : 09.09.2014 Date of Decision : 12/09/2014 M/s Volkswagen India Pvt. Ltd., E-1, Phase-3, Village Nighoje, Kharabwadi, Mhalunge Road, Chakan, Pune-401501 Revision-Petitioner/Applicant/Opposite Party No. 2 V e r s u s 1. Mr. Ashok K. Tuli, Proprietor, Precision Engineers, S/o Kedar Nath Tuli, R/o House No.495, Sector 4, Panchkula (Haryana). .Respondent no.1/complainant. 2. M/s Swami Automobiles Pvt. Ltd., through its General Manager, Plot No.32, Industrial Area, Phase-1, Chandigarh-160002 ....Respondent no.2/Opposite Party No.1 BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT MR. DEV RAJ, MEMBER
MRS.
PADMA PANDEY, MEMBER Argued by:
Sh. Manish Jain, Advocate for the applicant/ Revision -Petitioner.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This Revision petition is directed against the order dated 24.01.2014, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, Opposite Party No.2 (now applicant/Revision-Petitioner), was proceeded against exparte.
2. The facts, of the Consumer Complaint bearing No.550 of 2013, are that, Mr. Ashok Kumar K. Tuli, filed a complaint, under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be referred as the Act only), against the Opposite Parties (one of which is now Revision-Petitioner/Opposite Party No.2, and the second is respondent no.2/Opposite Party No.1), on the ground, that on 11.05.2012, he had purchased a car make Volkswagen Jetta, bearing registration No.CH01 AL 8081, from Opposite Party No.1, vide retail invoice Annexure C-1. The said car carried the warranty of two years, from the date of its purchase. It was stated that within a period of eight months of purchase of the said car, it started giving troubles. On 06.01.2013, leakage of fuel, from the vent tube of the said car, was noticed by the complainant. As such, the car was taken to Opposite Party No.1, for rectification of the said defect. However, to the utter surprise of the complainant, the vent tube was not available, in the store of Opposite Party No.1, as a result whereof, he had to park the car, in his garage, as the same could not be plied on road. Finally, the vent tube was made available to the complainant, and that too, on payment of Rs.4,869.14 Ps. However, the request of the complainant for refund of the said amount, being the car under warranty, was not acceded to by Opposite Party No.1.
3. It was further stated that, on 02.09.2013, the complainant noticed some sound coming, from engine of the said car. He immediately took his car to the premises of Opposite Party No.1. On checking, it was found that there was a problem in flywheel of the car, due to rust. An estimate of Rs.50,000/-, despite the fact that the same was under warranty period was prepared by Opposite Party No.1. The complainant requested Opposite Party No.1, not to charge the said amount, as the defect in flywheel of the car had arisen, within the warranty period, but to no avail, as a result whereof, he had to pay a sum of Rs.48,815/-, to it, for replacement of the said part. It was further stated that, thereafter, a number of emails were exchanged between the parties, with regard to refund of the said amount, but except bald assurances, nothing came out positive.
4. It was further stated that, on 17.10.2013, the battery of car became dead. As such, the complainant again took his car to Opposite Party No.1. The mechanics of Opposite Party No.1 charged the battery for the whole day, but they did not succeed. It was assured by Opposite Party No.1 that the defective battery would be replaced with a new one, but since it was not available in its store, the complainant had to park his vehicle for one week. Ultimately, the battery was replaced on 28.10.2013, by Opposite Party No.1
5. It was further stated that, thereafter, the complainant wrote a number of emails to the Opposite Parties, to refund the amount, received from him, towards replacement of the parts, in his car, on account of the reason, that the same was done, during the warranty period, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, 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 Act, was filed, claiming various reliefs.
6. Opposite Party No.1, in its written version, admitted that the complainant purchased the car, in question, from it, as mentioned in the complaint. It was also admitted that the complainant approached it, with a problem of leakage, from the vent tube of the said car. It was stated that since the said part did not fall within the warranty Clause, as such, Opposite Party No.1 charged a sum of Rs.4,869.14Ps., from the complainant, towards replacement of the same, with a new one. It was further stated that the problem with regard to flywheel of the car, in question, occurred only due to the reason that the complainant was negligent, as he did not adhere to the guidelines/instructions, provided in the owner manual, while driving the same (car), during rain, as a result whereof, he was charged for the said part. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice.
7. Despite deemed service, none put in appearance, on behalf of Opposite Party No.2, in the District Forum, as a result whereof, it was proceeded against exparte, on 24.01.2014.
8. Feeling aggrieved, the instant Revision-Petition, was filed by the Revision-Petitioner/Opposite Party No.2, against the order dated 24.01.2014.
9. Alongwith the Revision-Petition, an application for condonation of delay of 137 days, as per the applicant/Revision-Petitioner (as per the office report 138 days), in filing the same, was moved by the applicant/Revision-Petitioner, on the ground, that the summons received by it, from the District Forum, was misplaced somewhere, in its premises, which was later on recovered/traced, on 14.08.2014, during cleanliness operation. It was further stated that, thereafter the Advocate was contacted for defending the case, but by that time, the exparte proceedings order dated 24.01.2014, had already been passed. It was further stated that immediately the Advocate concerned drafted the Revision-Petition, and sent the same to the Competent Authority of the Revision-Petitioner for approval, and, as such it was filed on 09.09.2014. It was further stated that, on account of the reason aforesaid, the delay in filing the Revision-Petition occurred. It was further stated that the delay, in filing the Revision-Petition, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
10. We have heard the Counsel for the applicant/Revision-Petitioner, on the application, for condonation of delay, as also, in the main Revision- Petition, at the preliminary stage, and have gone through the record of the case, carefully.
11. First coming to the application, for condonation of delay, it may be stated here, that the same is liable to be dismissed, for the reasons, to be recorded hereinafter. The question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 137 days, as per the applicant/Revision-Petitioner (as per the office report 138 days), in filing the Revision Petition. 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 & 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.
12. 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.
13. 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.
14. 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]
15. In 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
16. 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
17. Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/Revision-Petitioner has been able to establish that it was, on account of the circumstances, beyond its control, that it could not file the Revision -Petition, in time. The Revision-Petition could be filed within 90 days, from the date of passing the order dated 24.01.2014. The ground taken up by the applicant/ Revision-Petitioner/Opposite Party No.2, that the summons received by it, from the District Forum was misplaced, in its Office, and was later on, recovered during cleanliness operation, on 14.08.2014, and, thereafter, the Advocate was contacted for defending the case, is not prima facie established, in the absence of any cogent and convincing material, on record. No affidavit of any Officer/Official of Opposite Party No.2, was filed that the summons was received by him/her, but the same was misplaced, and, if so, on which date. No affidavit of the Official, who traced the summons and, on which date, was also filed. The applicant/Revision-Petitioner, instead of challenging the order dated 24.01.2014, within 90 days, by way of filing a Revision-Petition, slept over the matter, and, ultimately, woke up after 137 days (as per the office report 138 days). There was complete inaction and lack of bonafides, on the part of the applicant/Revision-Petitioner/Opposite Party No.2, in filing the Revision-Petition after a delay of 137 days (as per the office report 138 days). No sufficient cause is, thus, constituted, from the averments, contained in the application, for condonation of delay. The application is, thus, liable to be dismissed.
18. Now coming to the main Revision-Petition, it may be stated here, that the Counsel for the Revision-Petitioner, advanced the arguments, grounded on the same pleas, which were taken up, in the application for condonation of delay. He also submitted that normally every lis should be decided on merits, than by default. He further submitted that, in this case Opposite Party No.2 was condemned unheard, as it was not afforded an opportunity, to put-forth its version, and lead evidence, on account of the reason that it was proceeded against exparte. He further submitted that the quasi-Judicial Tribunals are required to ensure adherence to the principles of natural Justice, so as to dispense substantial justice. He further submitted that, in the interest of Justice, the order dated 24.01.2014, is liable to be set aside.
19. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the RevisionPetitioner, and the record of the case, we are of the considered opinion, that the Revision-Petition is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter. Admittedly, the Opposite Parties were issued notice, in the complaint, which was instituted on 29.11.2013, for 24.01.2014. Opposite Party No.2 was deemed to be served, for 24.01.2014, but no authorized representative, on its behalf put in appearance, as a result whereof, it was proceeded against exparte. Opposite Party No.2, could file reply, within 30 days, from the date of service, which could be extended by 15 days more. However, Opposite Party No. 2, intentionally and willfully did not put in appearance, in the District Forum, on 24.01.2014, despite deemed service, as a result whereof, it was legally and validly proceeded against exparte. Section 13 (3A) of the Act, provides a period of three months for deciding the complaint, from the date of receipt of notice by the Opposite Party(s). The period of three months, from the date of service has already expired, much before. In Dr. J.J. Merchant V. Shrinath Chaturvedi, IV (2002) SLT 714 =III (2002) CPJ 8 (SC) =2002 CTJ 757 (SC) (CP)= 1986-02 6799 (NS), decided by a three Judge Bench of Hon`ble Supreme Court of India, it was held as under:-
13.The National Commission or the State Commission is empowered to follow the said procedure.
From the aforesaid Section it is apparent that on receipt of the complaint, the opposite party is required to be given notice directing him to give his version of the case within a period of 30-days or such extended period not exceeding 15 days as may be granted by the District Forum or the Commission. For having speedy trial, this legislative mandate of not giving more than 45 days in submitting the written statement or the version of the case is required to be adhered. If this is not adhered, the legislative mandate of disposing of the cases within three or five months would be defeated.
14. For this purpose, even the Parliament has amended Order VIII Rule 1 of Code of Civil Procedure, which reads thus:
"Rule-1: Written statement. The defendants hall, within thirty days from the date of service of summons on him, present a written statement of his defence; Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."
15. Under this Rule also, there is a legislative mandate that written statement of defence is to be filed within 30 days. However, if there is a failure to file such written statement within stipulated time, the court can at the most extend further period of 60 days and no more. Under the Act, the legislative intent is not to give 90 days of time but only maximum 45 days for filing the version by the opposite party. Therefore, the aforesaid mandate is required to be strictly adhered to.
20. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. Since the absence of Opposite Party No.2, on 24.01.2014, before the District Forum was willful and intentional, no ground for setting aside the order dated 24.01.2014 is made out. If the mandate of law, as enshrined in Sections 13(2)(b) and 13 (3A) of the Act, is not strictly adhered to, then long delays shall be caused, in deciding the Consumer Disputes, thereby defeating the very purpose of the Act. Since it has been held above that the absence of Opposite Party No. 2, on 24.01.2014 was willful, intentional and deliberate, no ground is made out for setting aside the exparte proceedings order, passed on that date. Opposite Party No.2 was afforded due opportunity of putting in appearance, before the District Forum, on 24.01.2014, when admittedly, it was duly served for that date, but it failed to avail of the same of its own. Thus, it cannot be heard to say that it would be condemned unheard, if the exparte proceedings order dated 24.01.2014 is not set aside. Opposite Party No.2, itself is responsible for creating such a situation. In case, the exparte order dated 24.01.2014, is set aside, despite the fact that there is no sufficient cause, for doing so, that would not only amount to condoning the willful and deliberate misconduct of Opposite Party No. 2, but also causing further delay, in the final disposal of the complaint. The Revision-Petition is, thus, liable to be dismissed.
21. In view of the above discussion, it is held that the impugned order does not suffer from any illegality, perversity or Jurisdictional error, warranting the interference of this Commission.
22. For the reasons, recorded above, the application for condonation of delay of 137 days, as per the applicant/Revision-Petitioner (as per the office report 138 days), being devoid of merit, must fail, and the same is dismissed. Consequently, the Revision-Petition under Section 17(b) of the Act, is also dismissed, being barred by time, as also on merits, at the preliminary stage, with no order as to costs. The order dated 24.01.2014 passed by the District Forum is upheld.
23. The District Forum record, alongwith a certified copy of the order, be sent back, to it, immediately, so as to reach there, well before the date, for which the same is fixed for further proceedings, in the Consumer Complaint.
24. Certified Copies of this order, be sent to the parties, free of charge.
25. The Revision-Petition file be consigned to the Record Room, after due completion.
Pronounced.
September 12, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg