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State Consumer Disputes Redressal Commission

Indian Railways Catering And Tourism ... vs Sandeep Kumar Mishra on 30 April, 2024

FA/235/2024         IRCTC VS. MR. SANDEEP KUMAR MISHRA & ANR.     DOD: 30.04.2024


          IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
                             COMMISSION

                                               Date of Institution:01.04.2024
                                               Date of hearing : 10.04.2024
                                               Date of Decision : 30.04.2024

                       FIRST APPEAL NO. 235/2024

   IN THE MATTER OF

          INDIAN RAILWAY CATERING AND
          TOURISM CORPORATION LTD. (IRCTC)
          THROUGH ITS AUTHORIZED REPRESENTATIVE
          MUDIVARTHY AVSU/AGM/HR/NZ
          GINGER RAIL YATRI NIWAS BUILDING
          RAILWAY STATION COMPLEX
          AJMERI GATE, NEW DELHI-110002
          (THROUGH ITS ADDITIONAL GENERAL MANAGER)

                                                 ...APPLICANT/APPELLANT
                                        (Through Mr. Varun Rajpal, Advocate
                                                    Mobile No. 9899893624)
                                     VERSUS

      1.

MR. SANDEEP KUMAR MISHRA S/O MR.L S.R. MISHRA R/O1141, DELHI ADMINISTRATION FLATS GULABI BAGH, NEW DELHI-110007

2. CCM/NER RAILWAY NORTH EASTERN RAILWAY GORAKHPUR, UTTAR PRADESH ....NON-APPLICANTS/ RESPONDENTS CORAM:

HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) HON'BLE JUSTICE MR. J.P. AGRAWAL, MEMBER (GENERAL) Present: Mr. Varun Rajpal (M: 9899893624, email id-

[email protected]), counsel for the Appellant. None for the respondents.

FA/235/2024 IRCTC VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD: 30.04.2024 PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)

1. The present appeal has been filed on 01.04.2024 challenging the impugned order dated 04.01.2024 passed in Complaint Case No.887/2013 by the District Consumer Disputes Redressal Commission-VI (New Delhi District) M-Block, Vikas Bhawan, I.P. Estate, New Delhi-110002 wherein the complaint was allowed.

2. This order will dispose off an application bearing IA No.971/2024 seeking condonation of delay in filing the appeal, filed along with the appeal. Affidavit of Mr. Mudivarthy Vasu, Additional General Manager with the appellant has been filed along with this application.

3. Record has been carefully and thoroughly perused.

4. The application has been moved under Section 5 of the Limitation Act read with Section 151 CPC. However, it is being considered under Section 15 of the Consumer Protection Act, 1986 as it is arising out of Complaint Case No.887/2013.

5. The bare perusal of the application filed reflects that it has been preferred under Section 5 of the Limitation Act read with Section 151 CPC. However, the entire proceedings of the present case took place according to the Old Act. Hence, before delving into the merits of the present application, it is imperative to ascertain whether the present application bearing IA No. 971/2024 filed along with the appeal on 01.04.2024 is maintainable under the New Act/Old Act.

6. The repeal of a law shall not affect the previous operation of any enactment i.e. the proceedings under Consumer Protection Act, 1986 shall continue for cases which had been filed prior to the implementation of Consumer Protection Act, 2019 on 20.07.2020.

The same can be gauged through the repeal and saving section (Section 107) of the Consumer Protection Act, 2019 which has been reproduced below:

FA/235/2024 IRCTC VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD: 30.04.2024 "107. (1) The Consumer Protection Act, 1986 is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.

(3) The mention of particular matters in sub-section (2) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of repeal."

7. We may also take the assistance of Section 6 (b) of the General Clauses Act, 1897 to further this view. Section 6 (b) of the General Clauses Act, 1897 has been reproduced below:

"6 Effect of repeal. : Where this Act, or any 1 [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder"

8. Moreover, unless the legislature explicitly provides that the amendment is retrospective in nature, it will be considered prospective. The aforesaid view has been taken by the Apex Court in the case of CIT v. Vatika Township (P) Ltd. reported in (2015) 1 SCC 1 wherein the Court discussed the proviso to Section 113 of the Income Tax Act, 1961 and held that it was prospective and not DISMISSED Page 3 of 13 FA/235/2024 IRCTC VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD: 30.04.2024 retrospective. While deciding the case, the Constitution Bench laid down certain general principles which have been reproduced as under:

"28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit: law looks forward not backward. As was observed in Phillips v. Eyre [Phillips v. Eyre, (1870) LR 6 QB 1] , a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.

29. The obvious basis of the principle against retrospectivity is the principle of "fairness", which must be the basis of every legal rule as was observed in L'OfficeCherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. [L'OfficeCherifien des Phosphates v.

FA/235/2024 IRCTC VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD: 30.04.2024 Yamashita-Shinnihon Steamship Co. Ltd., (1994) 1 AC 486 : (1994) 2 WLR 39 : (1994) 1 All ER 20 (HL)] Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later."

(emphasis in original)

9. Similarly, the Apex Court in Hitendra Vishnu Thakur vs State of Maharashtra reported in 1994 (4) SCC 602, the court has culled out the ambit and scope of an amending Act and its retrospective operation and has held the following:

"26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:

FA/235/2024 IRCTC VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD: 30.04.2024

(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.

(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.

(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.

(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."

10. Taking into account the aforesaid discussion, we conclude that the Consumer Protection Act, 2019 is prospective in nature. Thus, the cases pending or adjudicated and rights/obligations created before the coming into effect of the Consumer Protection Act, 2019 will continue to be adjudicated under the Old Act i.e. Consumer Protection Act, 1986. Hence, the Applicant cannot resort to the provisions as inculcated in the New Act so far as the present case is concerned this case will be governed by the provisions of the Old Act.

11. Application for condonation of delay has been filed on various grounds. Para No. 3 to 7 of the application read as under:

FA/235/2024 IRCTC VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD: 30.04.2024 "3. The concerned staff of the District Consumer Dispute Redressal Commission-VI, Vikas Bhawan, I.P. Estate, New Delhi dispatched the copy of the impugned judgment on 29.01.2024, however, the copy has been returned on 01.02.2024 with the reason that Left WTRS.

4. That on 06.02.2024, the counsel for the appellant went to District Consumer Dispute Redressal Commission-VI, Vikas Bhawan, I.P. Estate, New Delhi for attending the CC No.439/2018 tilted as Smt. Pushpanjali Versus SriRam General Insurance Co. Ltd.

&Anr.. After putting an appearance on behalf of the appellant/ IRCTC in the aforesaid matter the counsel for the appellant enquired about the Case No. 887/2013 titled as Sandeep Kumar Mishra Versus Indian Railway Catering and Tourism Corporation Ltd. (IRCTC) & Anr.. The concerned staff of the District Consumer Dispute Redressal Commission-VI, Vikas Bhawan, I.P. Estate, New Delhi has apprised that judgment has been passed on 04.01.2024 and copy of the judgment was dispatched on 29.01.2024, however, the copy has been returned on 01.02.2024 with the reason that Left WTRS. Copy of the judgment dated 04.01.2024 was received on 06.02.2024 by the counsel of the appellant. Certified Copy of the returned envelop and date of receipt of signed copy of judgment dated 04.01.2024 is already annexed as Annexure A-2. It is pertinent to mention herein that the appellant has closed its office at Registered Office/Corporate Office 9th Floor, Bank of Baroda Building, 16, Parliament Street, New Delhi- 110001 and the Corporate Office has been shifted at 11th Floor, B-148, Statesman House, Barakhamba Road, New Delhi-110001.

5. That it is also relevant to mention that the father of the counsel for the appellant had also again hospitalized on 26.02.2024 in the Fortis Hospital, Shalimar Bagh, Delhi for carrying out of the angioplasty and was discharged on 29.02.2024 and remained busy there.

FA/235/2024 IRCTC VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD: 30.04.2024

6. That as the Registry of the Hon'ble State Commission, Delhi has told the counsel for Appellant that its appeal would not be accepted without all the documents, pleadings filed before the Ld. District Consumer Dispute Redressal Commission-VI, New Delhi, hence the counsel for appellant on 04.03.2024 immediately certified of the copies of the reply, evidence and written submission filed on behalf of the opposite party no.2, rejoinder to the reply of the opposite party no.2 as well as Certified Copy of the returned envelop and date of receipt of signed copy of judgment dated 04.01.2024 and written synopsis filed by the complainant. All the above-said documents were s prepared on 28.03.2024 and received the counsel for the appellant on very same day.

7. That it is submitted that the last of filing of the appeal against the impugned judgment dated 04.01.2024 is 31.03.2024 (excluding period of preparation of certified copy) as the copy of the impugned judgment was received on 06.02.2024 and certified copy of the above mentioned documents were prepared by the concerned section of the Ld. District Commission on 28.03.2024. On receipt of the aforementioned certified copy immediately and without any delay filed the appeal with the Registry of the Hon'ble Commission on 01.04.2024 (on 31.03.2024 is Sunday). Hence there is no delay in filing of the present appeal."

12. To adjudicate this issue, we deem it appropriate to refer to Section 15 of the Consumer Protection Act, 1986 which provides as under:-

"Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed.

Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:

[Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State DISMISSED Page 8 of 13 FA/235/2024 IRCTC VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD: 30.04.2024 Commission unless the appellant has deposited in the prescribed manner fifty per cent. of the amount or rupees twenty-five thousand, whichever is less]"

13. A perusal of the aforesaid statutory position reflects that the appeal against an order should be preferred within a period of thirty days from the date of impugned judgment. On perusal of record before us, it is clear that the impugned order was pronounced on 04.01.2024 and the present appeal was filed on 01.04.2024 i.e. after a delay of 58 days.

14. In order to condone the delay, the Appellant has to satisfy this Commission that there was sufficient cause for preferring the appeal after the stipulated period. The term 'sufficient cause' has been explained by the Apex Court in Basawaraj and Ors. vs. The Spl. Land Acquisition Officer reported in AIR 2014 SC 746. The relevant paras of the aforesaid judgment are reproduced as under:-

"9. Sufficient cause is the cause for which Defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive".

However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause"

from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to DISMISSED Page 9 of 13 FA/235/2024 IRCTC VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD: 30.04.2024 examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose."

15. We also deem it appropriate to refer to Anil Kumar Sharma vs. United Indian Insurance Co. Ltd. and Ors. Reported in IV(2015)CPJ453(NC), wherein the Hon'ble NCDRC held as under:-

"12. .........we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon'ble Supreme Court in a recent judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that 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 the appeals and revisions, which are highly belated are entertained."

16. We further deem it appropriate to refer to Lingeswaran Etc. Versus Thirunagalingam in Special Leave to Appeal (C) Nos.2054- 2055/2022 decided on 25.02.2022, wherein the Hon'ble Supreme Court held as under: -

"5. We are in complete agreement with the view taken by the High Court. Once it was found even by the learned trial Court that delay has not been properly explained and even there are no merits in the application for condonation of delay, thereafter, the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the learned trial Court that, even after finding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to condone the delay would be giving a premium to a person who fails to explain the delay and who is guilty of delay and laches. At this stage, the decision of this Court in the case of PopatBahiruGoverdhane v. Land Acquisition Officer, reported in (2013) 10 SCC 765 is required to be referred to. In the said decision, it is observed and held that the law of limitation may DISMISSED Page 10 of 13 FA/235/2024 IRCTC VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD: 30.04.2024 harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.

17. From the aforesaid dicta of the Hon'ble Apex Court and the Hon'ble National Commission, it is clear that 'sufficient cause' means that the party should not have acted in a negligent manner or there was a want of bona fide on its part and the applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay.

18. Reverting to the material available before us, we find that the impugned order was passed on 04.01.2024 and the period of limitation starts from the date of order which had expired on 03.02.2024. However, the reasons stated for the delay that the concerned staff of the District Commission dispatched the copy of impugned order on 29.01.2024 which was returned on 01.02.2024 with the reason that "Left WTRS"; thereafter on 06.02.2024 counsel for the appellant went to the District Commission for attending another case where he enquired about the appellant's case and was apprised of passing of impugned order on 04.01.2024 which was dispatched on 29.01.2024 and received back on 01.02.2024 with reason that "Left WTRS"; the appellant has closed its office at Registered/Corporate Office 9th Floor, Bank of Baroda Building, 16, Parliament Street, New Delhi- 110001 and shifted at 11th Floor, B-148, Statesman House, Barakhamba Road, New Delhi-110001; father of counsel for the appellant had hospitalized on 26.02.2024 in the hospital and was discharged on 29.02.2024; at the time of filing, Registry of this DISMISSED Page 11 of 13 FA/235/2024 IRCTC VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD: 30.04.2024 Commission told counsel for the appellant that appeal would not be accepted without all documents/pleadings filed before the District Commission; and thereafter upon receipt of the same on 28.03.2024, the present appeal filed on 01.04.2024, seem fictitious.

19. It is an admitted fact in the application that certified copy of impugned order was received by counsel for the appellant on 06.02.2024. Even if we consider that the appellant has received the certified copy of the impugned order on 06.02.2024, in this circumstance also, the appellant was expected to file the appeal within the limitation period i.e. by 07.03.2023. Still there is unexplained delay of 25 days in filing the appeal.

20. The appellant has mentioned in para 4 of the application that certified copy of the returned envelop and date of recipt of signed copy of impugned order is annexed as Annexure A-2. However, the same has not been filed.

21. No medical report(s)/document(s) that shows the father of counsel for the appellant was hospitalized on 26.02.2024 and was discharged on 29.02.2024, has been filed in support of averments made in para 5.

22. It is the duty of the appellant/counsel to be aware of the procedure of filing of the appeal. It is a lame excuse.

23. The applicant has abused the process of law and filed this appeal after immense delay without any reasonable ground.

24. As per the averments made in the application as well as the record, we are of the considered view that no cogent reason has been explained by the appellant to show the delay in filing the appeal.

25. Having regard to the statutory position discussed in para supra and the facts of the case, the applicant/appellant has failed to DISMISSED Page 12 of 13 FA/235/2024 IRCTC VS. MR. SANDEEP KUMAR MISHRA & ANR. DOD: 30.04.2024 show any sufficient cause for the delay in filing the present appeal. Therefore, the application filed by the appellant seeking condonation of delay cannot be admitted and accordingly, the same is dismissed on the above grounds.

26. Consequently, the present appeal filed beyond the statutory period also stands dismissed. However, in the facts of the case, there shall be no order as to cost.

27. File be consigned to record room.

JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) J.P. AGRAWAL MEMBER (GENERAL) Pronounced on 30.04.2024.