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State Consumer Disputes Redressal Commission

Tata Motors Through Manager vs Mr.Kiran N.Chavan And Ors on 17 June, 2019

MA/18/313 IN A/18/669                                                       1




       STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
                   MAHARASHTRA, MUMBAI

                        MISC.APPLICATION NO.MA/18/313
                                      IN
                             APPEAL NO. A/18/669

The Manager,
Tata Motors
Ashok House, Tilak Road,
Pune, Pin-411002
Correct Address of the Appellant
Bombay House, 24, Homi Modi Street,
Fort, Mumbai                                 ....Applicant/Appellant.
             Versus

1. Mr.Kiran Nivrutti Chavan,
   R/at- Vita, Taluka Khanapur,               ... Respondent No.1/
   Dist.-Sangli, Pin-415311.                     (Org. Complainant)
2. The Manager, Pandit Automotive
   Private Limited, Sangli Miraj Road,        ... Respondent No.2/
   Vishrambaug, Sangli -416415.                  (Org. Opponent no.1)
3. The Manager, Pandit Automotive
   Private Limited, Sangli Ashta Road,
   Minche Malya Shejari, Tung, Taluka           ... Respondent No.3/
   Miraj, District - Sangli.                       (Org. Opponent No.2)

BEFORE:
           D.R.Shirasao, Presiding Judicial Member.
PRESENT: Adv.Mrs.Anita Marathe for appellant/applicant
             Adv.Mr.Satish Kumbhar for respondent No.1/
             Original complainant

                                     ORDER
                                 (17/06/2019)

Per Hon'ble Mr.D.R. Shirasao - Judicial Member:

1. Being aggrieved by judgment and order passed by the Ld.District Forum, Sangli in Consumer Case No.246/2014 on 06/10/2015 directing all the opponents to replace the vehicle of complainant or to give cost of vehicle to complainant and to give damages of Rs.1,00,000/- to complainant alongwith cost and compensation. Opponent no.2 manufacturing company of vehicle has filed this appeal. However, the same had become late by 988 days from the date of order. Hence, appellant/applicant has filed this application for codonation of delay.

2. The Ld.Advocate appearing for appellant/applicant submitted that the order was passed ex-parte against appellant/applicant. Appellant/ applicant was not duly served on their correct address by the respondent/complainant. Irrespective of that complainant obtained ex-parte order against appellant/applicant. She submitted that the address of appellant/applicant mentioned in the complaint is of Ashok House, Tilak Nagar, Pune. However, correct address of appellant/ applicant is Bombay House, 24, Homi Modi Street, Fort, Mumbai. She submitted that as appellant/applicant was not properly served in the complaint, they could not appear and contest the complaint and as such, complaint is decided ex-parte against applicant/appellant. She further submitted that although there is no oral or documentary evidence produced by complainant showing that there is manufacturing defect in the vehicle, the Ld.District Forum had directed opponents to replace the vehicle of complainant or to return back the amount of vehicle to complainant. She submitted that there is merit in appeal and hence, delay caused in filing appeal be condoned. She further submitted that opponent nos.1 and 2 had also challenged the order passed by the Ld.District Forum by filing appeal No.1064/2016. In that appeal they had made applicant/appellant as respondent and served notice of appeal on appellant/applicant on 05/02/2018. On 05/02/2018, applicant/ appellant for the first time learnt about the impugned order passed against them. Thereafter, they had made thorough investigation in the matter and obtained the certified copy of the order and thereafter filed this appeal. However, the same has become late. Hence, appellant/ applicant has filed this application for condonation of delay. Delay caused is not intentional or deliberate, hence the same may be condoned. she further submitted that during relevant time the father-in- law of advocate of appellant/applicant was seriously ill and was admitted in ICU in hospital. Subsequently, in the month of August the father-in-law of advocate for appellant/applicant died. Because of these reasons appellant could not file appeal within limitation after they learnt about impugned order passed against them. For that purpose she filed necessary documents on record.

3. The Ld.Advocate appearing for appellant/applicant for that purpose relied on order passed by the Hon'ble High Court of Judicature of Bombay in Writ Petition No.4217 of 2018 on 07/08/2018 in the matter of Dr.Madhav Vishwanath Dawalbhakta (Decd) thorough LRs. Dr.Nitin M.Dawalbhakta & Ors. V/s. M/s. Bendale Brothers. In this case also ex-parte order was passed against the respondent by serving respondent by paper publication. The same was set aside by the learned District Judge. The Hon'ble High Court confirmed the order passed by the Ld.District Judge by dismissing writ petition.

4. Although respondent/non-applicant nos.2 and 3 did not appear in the proceeding. Respondent/opponent no.1 had appeared in the proceeding and contested application by filing reply on record. He submitted that the address of appellant/applicant mentioned in the complaint was correct. The notice was duly served on the correct address of appellant/applicant. They remained absent in the proceeding and hence, complaint was decided ex-parte against them. Now they cannot take objection against the ex-parte order passed against them. He submitted that since the date of passing of order inordinate delay is caused in filing appeal and the same is not properly explained. Hence, application filed for condonation of delay be rejected. He further submitted that as per contention of appellant/applicant, they learnt about this order on 05/02/2018. However, since then also they have not filed appeal within limitation. He further submitted that the illness was in respect of the relative of advocate of appellant. Appellant could have filed appeal through any other advocate. Hence, he submitted that delay caused in filing appeal is not properly explained and hence, application be rejected.

5. Perused record of the case. On perusal of the same it has become clear that the Ld.District Forum had passed impugned order ex-parte against appellant/applicant. On perusal of copy of order it appears that complainant had mentioned address of appellant/applicant as Ashok House, Tilak Road, Pune in the complaint. However, on perusal of agreement which was executed in between appellant and opponent no.2 it appears that it was the address of opponent no.2. As per the MA/18/313 IN A/18/669 4 agreement the address of appellant/applicant is of Bombay House, 24, Homi Modi Street, Fort, Mumbai. Hence, it has become clear that complainant has shown wrong address of appellant in complaint and served notice of appellant on the wrong address. The address of appellant shown in the complaint is in fact the address of opponent no.2 and it is not the address of appellant. Hence, it has become clear that complainant had not served appellant/applicant on their proper address and wrongly obtained ex-parte orders against appellant/applicant. Hence, the complaint was decided ex-parte against appellant/applicant. In view of the same I am of the opinion that as appellant/applicant was not properly served in the matter, appellant/applicant has every right to contest the complaint on merit. Hence, there is merit in the appeal filed by the appellant. Moreover, in this case it appears that the Ld.District Forum had directed replacement of vehicle or return of price of vehicle to complainant. For that purpose manufacturing defects in the vehicle is required to be proved by the complainant. On this ground appellant/ applicant has every right to contest the complaint filed by the complainant. As order was passed ex-parte, appellant could not have any knowledge of order passed by the Ld.District Forum. It is the contention of appellant that they learnt about this order when they received notice of Appeal No.1063 o 2016 on 05/02/2018. This appeal was filed by other opponents making appellant as respondent in that appeal. Hence, it appears that appellant has learnt in respect of impugned order for the first time on 05/02/2018.

6. I am of the opinion that when appellant has learnt about the impugned order passed on 05/02/2018, then it was duty of appellant to obtain certified copy of order and file appeal against that order immediately within the period of limitation from the date on which they learnt about the order. However, appeal is filed alongwith delay condonation application on 27/07/2018. Although applicant has mentioned period of delay is of 988 days in filing appeal from the date of order, it is not the actual delay caused in filing appeal. Appellant learnt about order for the first time on 05/02/2018 and delay will have to be counted from that date only. After excluding the period of appeal, delay may come to 4 months.

7. It is the contention of learned advocate appearing for appellant that during relevant period her father-in-law was admitted in hospital and subsequently he had died and because of which appellant could not file appeal. However, I am of the opinion that appellant/applicant is a corporate company and appellant could have file this appeal by engaging any other advocate. There must be number of advocates on the panel of appellant company. Hence, I am of the opinion that only on the ground of illness of father-in-law of advocate of appellant delay caused in filing appeal cannot be condoned. However, as complainant has obtained impugned order by wrongly showing appellant as ex-parte in the complaint there is merit in the appeal filed by the appellant. Moreover, from the date of knowledge of order the delay caused in filing appeal is near about 3 to 4 months. In view of the same I am of the opinion that considering the ruling on which advocate for appellant has relied delay caused in filing appeal can be condoned by imposing costs on appellant/ applicant. Hence, I proceed to pass the following order -

ORDER

1. Application filed by appellant/applicant for condonation of delay in filing appeal is hereby allowed subject to costs of Rs.10,000/- (Rupees Ten Thousand Only) to be paid by appellant/applicant to respondent no.1/complainant within a period of one month from passing of this order.

2. On payment of costs to respondent no.1/complainant within a period of limitation or depositing the same in the office of this Commission, matter be fixed for hearing on admission. Pronounced on 17h June, 2019.

[D.R. Shirasao] Presiding Judicial Member aj