State Consumer Disputes Redressal Commission
Bharti Axa General Insurance Company ... vs 1. Om Parkash Jindal on 3 March, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 556 of 2013 Date of Institution : 30.12.2013 Date of Decision 03.03.2014 Bharti Axa General Insurance Company Limited, SCO 350-351-352, First Floor, Sector 34, Chandigarh, through its Authorized Signatory/Duly Constituted Attorney Ms. Akanksha Kapoor. Appellant/Opposite Party No.4 V e r s u s 1. Om Parkash Jindal, M/s Saravpriya Tuber Pvt. Ltd., Village Talwara, G.T. Road, Sirhind Side, Mandi Gobindgarh, Mandi Gobindgarh 147 301. ..Respondent No.1/complainant 2. M/s Krishna Automobiles, through its Managing Director, Plot No. 125, Industrial Area, Phase-I, Chandigarh. (Service dispensed with, vide order dated 31.12.2013) ..Respondent No.2/Opposite Party No.1 3. Kulwinder Singh, Mechanic, C/o M/s Krishna Automobiles, Plot No. 125, Industrial Area, Phase-I, Chandigarh. (Service dispensed with, vide order dated 31.12.2013) ..Respondent No.3/Opposite Party No.2 4. M/s BMW India Pvt. Limited, through its Managing Director, DLF Cyber City, Phase-II, Building No.8, Tower-B, 7th Floor, Gurgaon 122002. (Service dispensed with, vide order dated 31.12.2013) ..Respondent No.4/Opposite Party No.3 Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. Gaurav Bhardwaj, Advocate for the appellant.
Sh.
Ujjwal Goyal, son-in-law of Mr. Om Parkash Jindal- respondent no.1, in person Service of respondents no.2 to 4, dispensed with, vide order dated 31.12.2013 PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 31.10.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent no.1), and directed Opposite Party No.4 (now appellant), as under:-
In the light of above observations, we are of the concerted view that the Opposite Party No.4 is found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Party No.4 and the same is allowed, qua it. The Opposite Party No.4 is directed to:-
[a] To pay Rs.2,14,932/- as per invoice no. SIP111382, dated 30.09.2011, along with interest @6% p.a. from the date of its payment by the Complainant i.e. 13.10.2011, till it is paid;
[b] To pay Rs.25,000/-on account of deficiency in service and causing mental and harassment to the Complainant;
[c] To pay Rs.10,000/- as cost of litigation;
The above said order shall be complied within 45 days of its receipt by the Opposite Party No.4; thereafter, it shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] from the date 13.10.2011, till it is paid & the amount mentioned in sub-para [b] of Para 12 above, from the date of this order, till it is paid, apart from cost of litigation of Rs.10,000/-.
2. However, the complaint against Opposite Parties No.1, 2 and 3 (now respondents no.2 to 4), was dismissed, by the District Forum.
3. The facts, in brief, are that the complainant, being the owner of BMW car, bearing Registration No.PB11N 5656, got the same insured, from Opposite Party No.4, valid for the period from 23.02.2011 to 22.02.2012 vide Cover Note No.30647858, for the Insured Declared Value, to the tune of Rs.35,34,000/-, on payment of Rs.78,475.15 Ps. On 02.09.2011, when it was raining, and the car was being driven, by a relative of the complainant, it suddenly stopped, in the middle of the road, at Sector 28/29 light point, Chandigarh. The car was then parked, on the other side of the road. A complaint was lodged with Opposite Party No.1, on its toll free number, upon which Opposite Party No.2, came to the spot, and tried to start the car, a number of times. When the car did not start, he took the vehicle, to the workshop of Opposite Party No.1, by towing. Later on, Opposite Party No.1, informed the complainant that there was fault, in the engine of the car, its cylinders were also not working and showing less compression. The estimated cost of repairs, was given to be Rs.1,91,991/- approx. Since the car was under warranty, the complainant requested Opposite Party No.1, to repair the same, free-of-cost, or the repair charges be taken from Opposite Party No.4.
4. It was stated that, subsequently, at the time of taking delivery, Opposite Party No.1, took a sum of Rs.2,14,932/-, vide receipt dated 13.10.2011. At the time of making payment, the complainant requested Opposite Party No.1, that the water had entered, in the engine of car, due to starting of the same (car) many a time, by its mechanic i.e. Opposite Party No.2, and, as such, the amount be recovered from him. The complainant also lodged claim, with Opposite Party No.4, which appointed a Surveyor, to inspect the car. On inspecting the car, the Surveyor assessed the loss, only to the tune of Rs.70,000/-, and offered that amount to the complainant, which he refused, due to difference between the actual amount spent, and offered. The complainant sent several e-mails to the Opposite Parties, but instead of redressing his grievance, they tried to shift the burden of liability, on each other, without any basis, thereby avoiding the payment of repair charges, paid by him, when it was under warranty.
5. It was further stated that earlier the complainant had filed the Consumer Complaint, bearing No.54 of 2012, titled as Om Parkash Jindal Vs. M/s Krishna Automobiles and Ors., which was dismissed, in default, vide order dated 03.04.2012, by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh. It was further stated that another Consumer Complaint, bearing No.209 of 2012, titled as Om Parkash Jindal Vs. M/s Krishna Automobiles and Ors., filed by the complainant, with regard to the same subject matter, was also dismissed, in default, by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh, vide order dated 20.07.2012.
6. 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 Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.2,14,932/-, paid by him, as repair charges, alongwith interest @18% P.A., from 13.10.2011, till realization; pay compensation, to the tune of Rs.1 lac, for causing mental agony, physical harassment and inconvenience; and cost of litigation, to the tune of Rs.1,25,000/-.
7. Opposite Party No.1, in its written version, while admitting the factual matrix of the case, pleaded that it was raining and the car was being driven, in the flooded street, at the usual speed, when it suddenly stopped. It was stated that the car was then parked, on the other side of the road, which was higher and drier. Later on, Mechanic, Kulwinder Singh (Opposite Party No.2), arrived at the spot, and inspected the car. It was denied that Opposite Party No.2, tried to re-start the car, after inspection, because he found that its air filter was soaked with water. Thereafter, he towed the car to the garage of Opposite Party No.1, in a flat bed trolley. It was further stated that the said facts were also recorded, on the spot, by Kulwinder Singh, on Service Reception at the Car-Check list-Annexure R-1. It was further stated that the complainant tried to pass the buck, by firstly alleging that he did not make any effort, to restart the car, when the same stopped, in the flooded street, and secondly that Kulwinder Singh,Opposite Party No.2, tried to start the same (car). It was further stated that, in the customers manual, provided with the car, the manufacturer had expressly warned the owners thereof, not to drive the same (car), in a flooded street because the level of the exhaust, was about 12 inches, above the road level, and if the water was calm, it should be driven no faster than walking speed, approximately 10 Kms/h or 6 miles per hour, and only upto the maximum water depth of approx. 25 cms i.e. 98 inches. It was further stated that, as per the terms and conditions of warranty Annexure R-3, the same (warranty) did not apply, in case of flood damage, including any extent of submersion, water logging and/or hydrostatic lock, and other engine damages, caused through ingestion of water. It was further stated that, upon lodging claim, with the Insurance Company (Opposite Party No.4), a Surveyor was deputed, who after inspection, assessed the loss, to the tune of Rs.77,915/-, in accordance with the terms and conditions of the warranty, and that amount was offered to the complainant, but he refused to accept the same, and instead, filed the present complaint. It was further stated that the engine had not stopped because of any defect therein, but because of water entering into the same, through its intake system. It was further stated that under these circumstances, there was neither any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
8. Sh. Jagvir Sharma, Counsel for Opposite Party No.2, made a statement, on 25.10.2012, to the effect that he did not wish to file separate reply and evidence, on behalf of Opposite Party No.2, and the reply and evidence, already filed, on behalf of Opposite Party No.1, be read as the reply and evidence, on his (Opposite Party No.2) behalf also. It was, however, stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor he indulged into unfair trade practice. The remaining averments, were denied, being wrong.
9. Opposite Party No.3, in its written version, pleaded that the complainant, himself, admitted that it was raining, on 02.09.2011, and that the car stopped, while crossing the rainy water, on the road. It was stated that contrary to the precautions prescribed, in the Owners Manual, the complainant drove the car, in more than 25 cm deep water. It was further stated that, otherwise water on the road, would not have entered, inside the engine of the said car, through air intake system, which was located at the height of 68.00 cms, from the ground, creating a buffer of 43 cms, for covering its (water) movement, on the road. It was further stated that the complainant never informed Opposite Party No.3, about breakdown of his car, and/or about the alleged acts of omission of Opposite Party No.2. It was further stated that since the car broke down and the problem occurred, in the engine, on account of negligent handling/driving of the same, by the complainant, Opposite Party No.3, was not liable to repair the same free-of-cost. It was further stated that warranty did not cover user related damage or damage caused due to negligent handling of vehicle, water logging and/or hydrostatic lock. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
10. Opposite Party No.4, the Insurance Company, in its written version, admitted that the car, in question, was insured with it, for the period, in question, when the incident took place. It was stated that the complainant lodged the claim, with Opposite Party No.4, whereafter M/s Pee Kay & Co., Surveyor and Loss Assessors, was appointed. Mr. Parvinder Kumar, Surveyor and Loss Assessor, of the said Company, visited the workshop of the repairer, and inspected the car, in question, whereafter, he gave his report dated 22.11.2011, as per the terms and conditions of the Insurance Policy. It was specifically mentioned by the said Surveyor and Loss Assessor, in his report that, on account of presence of water, in the air intake line, and also the engine was not rotating manually, which indicated that the moving parts were stuck. It was further stated that, on partial dismantling of the engine, it was found that the connecting rods were bent, pistons and connecting rod bearings were scratched, and this was possible, only due to running of the same (engine), for some-time, after it came into contact with water, and its entry through air inlet line. It was further stated, in this report, by the said Surveyor and Loss Assessor, that damage to the said parts of engine, was a mechanical failure, and was not admissible, as per the terms and conditions of the Insurance Policy. It was further stated that the Surveyor assessed the loss, to the tune of Rs.77,915.77Ps., as per the terms and conditions of the Insurance Policy. It was further stated that the Insurers Liability was limited to the replacement or repair of only those parts, which were affected, due to coming in contact with water, and loss had been assessed accordingly. It was further stated that Opposite Party No.4, offered this amount to the complainant, but he refused to accept the same. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.4, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
11. The Parties led evidence, in support of their case.
12. After hearing Sh.Ujjwal, son-in-law of the complainant, Counsel for Opposite Parties, No.1 to 4, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, against Opposite Party No.4, in the manner, referred to, in the opening para of the instant order.
13. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.4.
14. Service of respondents No.2 to 4, was dispensed with, by this Commission, vide order dated 31.12.2013, as the complaint qua them was dismissed, by the District Forum.
15. We have heard the Counsel for the appellant, Sh. Ujjwal Goyal, son-in-law, of respondent no.1/complainant, and, have gone through the evidence, and record of the case, carefully.
16. The Counsel for the appellant/Opposite Party No.4, submitted that the Consumer Complaint, out of the decision whereof, the instant appeal has arisen, was not maintainable, on account of the reason that earlier also the complainant filed the Consumer Complaint, bearing No.54 of 2012, titled as Om Parkash Jindal Vs. M/s Krishna Automobiles and Ors., on the subject matter which was dismissed, in default, vide order dated 03.04.2012, by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh. He further submitted that another Consumer Complaint, bearing No.209 of 2012, titled as Om Parkash Jindal Vs. M/s Krishna Automobiles and Ors., was filed by the complainant, with regard to the same subject matter, which was also dismissed, in default, by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh, vide order dated 20.07.2012. He further submitted that, instead of filing appeals, against the orders, referred to above, for setting aside the same, the complainant (now respondent no.1), filed another Consumer Complaint, out of the decision whereof, the instant appeal has arisen. He further submitted that the Consumer Complaint, out of the decision whereof, the instant appeal has arisen, was not legally maintainable, and, as such, no relief could be granted to the complainant, by the District Forum. He also relied upon Uddalak Vs. Electricity Supply Co. Ltd. and Ors., 2013 (1) CPC 542, Ansal Housing & Construction Ltd. Vs. Indian Machinery Company, 2013 (3) CPR 207 (NC) and M/s Purusharath Builders Pvt. Ltd. Vs. M/s Uppal Housing Ltd. III (2012) CPJ 500 (NC), in support of his contention. He further submitted that, as such, the order of the District Forum, being illegal and invalid, is liable to be set aside.
17. On the other hand, Mr.Ujjwal Goyal, son-in-law of respondent no.1/complainant, submitted that the mere fact that earlier two Consumer Complaints, referred to above, were filed by the complainant, with respect to the subject matter, were dismissed, in default, did not debar him (complainant), from filing a fresh Consumer Complaint. He further submitted that the provisions of the Code of Civil Procedure are not applicable to the proceedings, before the Consumer Foras. He further submitted that, as such, the Consumer Complaint, out of the decision whereof, the instant appeal has arisen, was maintainable. He also placed reliance on New India Assurance Co. Ltd. Vs. R. Srinivasan, 1 (2000) CPJ 19 (SC), in support of his contention. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
18. The core question, that falls for consideration, is, as to whether, the Consumer Complaint, out of the decision whereof, the instant appeal has arisen, was legally maintainable or not. In the complaint itself, the complainant admitted that he also earlier filed two Consumer Complaints, with regard to the same subject matter, which were dismissed, in default. It is also evident from the record, that the Consumer Complaint, bearing No.54 of 2012, titled as Om Parkash Jindal Vs. M/s Krishna Automobiles and Ors., was filed by the complainant, with regard to the same subject matter, on 24.01.2012, which was, ultimately, dismissed, in default, vide order dated 03.04.2012, by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh. The second Consumer Complaint, bearing No.209 of 2012, titled as Om Parkash Jindal Vs. M/s Krishna Automobiles and Ors., was filed by the complainant, with regard to the same subject matter, on 27.04.2012, which was, ultimately, dismissed, in default, vide order dated 20.07.2012, by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh. A similar question, fell for determination, in Uddalak Vs. Electricity Supply Co. Ltd. and Ors., 2013 (1) CPC 542, case (supra), decided by the National Consumer Disputes Redressal Commission, New Delhi. In that case, the Consumer Complaint was dismissed, for non-prosecution. An application for restoration, which was filed by the complainant, was also dismissed. Second application for restoration of the same, was also dismissed. Instead of filing the appeal, against the order, vide which the complaint of the complainant was dismissed, second complaint was filed, after one and a half years of the dismissal of second application for restoration, without explaining the delay. The National Consumer Disputes Redressal Commission, New Delhi, came to the conclusion, that the second Consumer Complaint, on the same cause of action, was not maintainable, before the District Forum. It was further held by the National Consumer Disputes Redressal Commission, New Delhi, in the aforesaid case, that the remedy, which lay, with the complainant was to file an appeal, against the order, vide which his complaint was dismissed, for non-prosecution. It was further held by the National Consumer Disputes Redressal Commission, New Delhi, that the complaint was liable to be dismissed on the ground of non-maintainability. In Ansal Housing & Construction Ltd. Vs. Indian Machinery Company, 2013 (3) CPR 207 (NC) and M/s Purusharath Builders Pvt. Ltd. Vs. M/s Uppal Housing Ltd. III (2012) CPJ 500 (NC), it was also held by the National Consumer Disputes Redressal Commission, New Delhi, that when the first Consumer Complaint, was dismissed for non-prosecution, then the second Consumer Complaint, was not maintainable. The ratio of law, laid down, in the aforesaid cases, therefore, is fully applicable to the facts of the instant case. The District Forum did not take into consideration, this aspect of the matter, in proper perspective and, thus, committed a grave illegality. It is, therefore, held that the Consumer Complaint, out of the decision whereof, the instant appeal, has arisen, was not legally maintainable. The District Forum was, thus, wrong, in granting relief, in the Consumer Complaint, which was not legally maintainable. The order of the District Forum, thus, being illegal, is liable to be set aside.
19. Even otherwise, if the Consumer Complaint, out of the decision whereof, the instant appeal has arisen, is held to be maintainable, that would amount to reviewing the orders dated 03.04.2012 and 20.07.2012, passed in the earlier Consumer Complaints, vide which the same were dismissed, in default. The Act does not vest either the District Forum, or the State Commission, with the power of review its own orders, in view of the ration of law, laid down, by the Honble Supreme Court, in Rajeev Hitendra Pathak and Ors. Vs. Achyut Kashinath Karekar and Anr., IV (2011) CPJ 35 (SC).
20. Coming to the case New India Assurance Co. Ltd. Vs. R. Srinivasan, 1 (2000) CPJ 19 (SC), relied upon by respondent no.1/complainant, it may be stated here, that the same also does not support the case of respondent no.1/complainant. In that case, it is no doubt true that the Supreme Court of India, held that if the first complaint was not decided, on merits, and was dismissed, in default, of non-appearance, then the second complaint could be filed, explaining, as to why, the earlier/first complaint could not be prosecuted. However, in paragraph number 19 of the said Judgment, the Honble Supreme Court, observed as under:-
19. We cannot also lose sight of the fact that a complainant may harass a party by repeatedly filing a complaint against him. He may file a complaint, draw the opposite party to the State or National Commission and then have the complaint dismissed for default. He may repeat the exercise again only to harass the defendant. This practice, or to put it a little sternly, these tactics would be intolerable for any authority under the Act. In such a situation, the District Forum or the State or National Commission would not be helpless and it would not be open to them to dismiss the fresh complaint on the ground of abuse of the process available under the Act. They can, in that situation, legitimately invoke the principles of Order 9 Rule 9 CPC.
21. In the present case, first Consumer Complaint, bearing No.54 of 2012, titled as Om Parkash Jindal Vs. M/s Krishna Automobiles and Ors., was filed by the complainant, with regard to the same subject matter, on 24.01.2012, which was ultimately dismissed, in default, vide order dated 03.04.2012, by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh. Whereas, the second Consumer Complaint, bearing No.209 of 2012, titled as Om Parkash Jindal Vs. M/s Krishna Automobiles and Ors., filed by the complainant, with regard to the same subject matter, on 27.04.2012, was also, ultimately, dismissed, in default, vide order dated 20.07.2012, by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh. In the Consumer Complaint, out of the decision whereof, the instant appeal has arisen, no averment, was made by the complainant, explaining the reasons, as to why, he could not prosecute those complaints, which were filed by him, with regard to the same subject matter. Had any plausible explanation, been furnished by the complainant, in the complaint, the matter would have been different. In the absence of any explanation, having been furnished, as to what prevented the complainant, from prosecuting the earlier two Consumer Complaints, relating to the same subject matter, this Commission cannot coin any explanation, of its own. If the consumers are allowed to file the Consumer Complaints, with regard to the same subject matter, one after the other, especially when the other Consumer Complaints filed by him/them, relating to the same cause of action, were dismissed, in default, or for want of prosecution, then the Consumer Foras shall be mushroomed with such legally non-maintainable Consumer Cases, which would amount to the abuse of process. To meet with such circumstances, in paragraph No.19, it was held by the Hon`ble Supreme Court, in New India Assurance Co. Ltd.`s case (supra), that the complainant may file a complaint, draw the Opposite Party to the State or National Commission and then have the complaint dismissed for default. He may repeat the exercise again, only to harass the defendant. It was held that this practice, or to put it a little sternly, these tactics would be intolerable for any authority, under the Act. In such a situation, the District Forum or the State or National Commission, would not be helpless, and it would not be open to them, to dismiss the fresh complaint, on the ground of abuse of the process, available under the Act. They can, in that situation, legitimately invoke the principles of Order 9 Rule 9 CPC. Under these circumstances, no help can be drawn by Sh. Ujjwal Goyal, son-in-law of respondent no.1, from the principle of law, laid down, in New India Assurance Co. Ltd.`s case (supra).
22. Not only this, in Uddlak`s case (supra), the National Consumer Disputes Redressal Commission, New Delhi, also quoted paragraph 19 of New India Assurance Co. Ltd.`s case (supra), and then came to the conclusion that the second complaint, with regard to the same subject matter, in the face of dismissal, in default, or want of prosecution of the first Consumer Complaint, relating to the same subject matter, was not maintainable. The submission of Sh.Ujjwal Goyal, son-in-law of respondent no.1, therefore, being devoid of merit, must fail, and the same stands rejected.
23. Since, the Consumer Complaint, out of the decision whereof, the instant appeal has arisen, was not legally maintainable, no relief could be granted to the complainant, by the District Forum. The order of the District Forum, therefore, being illegal, is liable to be set aside.
24. For the reasons recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum is set aside, holding that the Consumer Complaint was not legally maintainable.
25. Certified copies of this order, be sent to the parties, free of charge.
26. The file be consigned to Record Room, after completion Pronounced.
March 3, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg STATE COMMISSION (First Appeal No. 556 of 2013) Argued by: Sh. Gaurav Bhardwaj, Advocate for the applicant/ appellant.
Sh.
Ujjwal Goyal, son-in-law of Mr. Om Parkash Jindal- respondent no.1, in person Service of respondents no.2 to 4, dispensed with, vide order dated 31.12.2013 Dated the 3rd day of March 2014 ORDER Alongwith the appeal, an application for condonation of delay of 23 days, in filing the same (appeal) has been moved, by the applicant/appellant, stating therein, that since its (applicant/appellant) Head Office is located at Bangalore, necessary documents, alongwith the certified copy of order received on 10.12.2013, by its (applicant/appellant) Counsel, were required to be sent there, for consideration and approval of the Legal Team/Competent Authority, to file an appeal, and after obtaining the approval, cheque, in the amount of Rs.25,000/-, was prepared. Thereafter, the cheque, in question, as also the documents were handed over to the Counsel concerned, on 23.12.2013, for filing the appeal, which was finally filed, on 30.12.2013. It was further stated that, in these circumstances, the delay of 23 days, in filing the appeal occurred. It was further stated that the delay, in filing the appeal, was neither intentional, nor willful. Accordingly, the prayer, referred to above, was made.
2. Notice of this application, was given to respondent no.1/complainant, who filed reply, stating therein, that the application deserved to be dismissed, as no sufficient cause, was constituted, for condonation of delay.
3. No doubt, there is delay of 23 days, in filing the appeal. The question arises, as to whether, the delay was intentional, or on account of the reasons, beyond the control of the applicant/appellant. Before discussing this question, let us have a look at law, laid down by the Hon`ble Supreme Court and the Mumbai (Maharashtra) High Court, regarding the condonation of delay. In Lanka Venkateswarlu (D) By Lrs. vs State Of A.P. and Ors., A.I.R. 2011 S.C. 1199: (2011) 4 S.C.C. 190, the Apex Court held as under:-
(i). The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act.
(ii). Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.
(iii). Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that.
(iv). Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law.
4. In N.Balakrishnan v. M.Krishnamurthy (1998) 7 Supreme Court Cases 123, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-
It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice.
The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."
The Court further observed in paragraphs 11, 12 and 13 which run thus:-
"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality (1972) 1 SCC 366.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "
5. In Jyotsana Sharda vs Gaurav Sharda, (2010-3) 159 P.L.R. D15,Mumbai (Maharashtra) High Court, while condoning 52 days delay, in filing the appeal, observed as under:-
No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day`s delay in filing the appeal. The later judgments of theApex Court have considerably diluted this requirement of explaining each days delay by a party. The latest trend and the ratio cases which the Apex Court has laid down in the judgments is that the Court must adopt a liberal approach rather than pedantic approach while doing so. It must see the bonafides of the person who is preferring the appeal rather than seeing the quantum of delay which has been occasioned. Reliance in this regard can be placed on Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji & Ors. AIR 1987 SC 1353.
6. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. It is evident, from the record that delay, in this case, occurred due to the cumbersome procedure, which was required to be followed, to obtain approval for filing the appeal. Certified copy of the order impugned, after having been received, by the Counsel, and the necessary documents, were, in the first instance, sent to the Head Office of the applicant/appellant, at Bangalore, for consideration, and seeking approval of the Legal Department/Competent Authority, as to whether, it was a fit case, for filing an appeal or not. For taking decision by the Company, as to whether, an appeal against the order was to be filed or not, the file had to pass through many channels. No single person, could take the decision, at his own level independently, for filing an appeal. The delay of 23 days, in filing the appeal, cannot be said to be so huge, as to deny the substantial justice. Even otherwise, it is settled principle of law, that normally every lis should be decided, on merits. When substantial justice and the procedural wrangles are pitted against each other, then the former shall prevail over the latter. Under these circumstances, it could be held that delay in filing the appeal, was neither intentional nor willful, but, on account of the reasons, explained in the application. There is, thus, sufficient cause, for condoning the delay. The application. thus, deserves to be accepted.
7. For the reasons recorded above, the application for condonation of delay of 23 days, in filing the appeal, is allowed, and the delay is, accordingly, condoned.
8. Admitted.
9. It be registered.
10. Arguments, in the main appeal have already been heard.
11. Vide our detailed order of the even date, recorded separately, the appeal has been accepted, with no order as to costs. The order of the District Forum has been set aside, holding that the Consumer Complaint was not maintainable.
12. Certified copies of this order, alongwith the certified copy of the main order, be sent to the parties, free of cost.
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(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT (PADMA PANDEY) MEMBER Rg