State Consumer Disputes Redressal Commission
The General Manager, Northern Railway ... vs Vikas Jindal on 23 September, 2020
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Miscellaneous Application No.1541 of 2020
in/and
First Appeal No.261 of 2020
Date of institution : 17.09.2020
Date of Decision : 23.09.2020
1.The General Manager, Northern Railway, Baroda House, New Delhi
2. The Northern Railway, through Divisional Manager, Ferozepur.
3. The Station Superintendent, Railway, Faridkot.
....Appellants/Opposite Parties Versus Vikas Jindal aged about 40 years, s/o Sat Pal Jindal R/o B-V/433, Gali Loharan Wali, Near Dr. Brar Nursing Home, Faridkot, Tehsil and District Faridkot.
....Respondent/Complainant Miscellaneous Application for condonation of delay.
in/and First Appeal against the order dated 21.10.2019 of the District Consumer Disputes Redressal Forum (now District Commission), Faridkot.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest Yes/No Present:-
For the appellants : Sh.Karminder Singh, Advocate (through VC) JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT Proceedings have been conducted through Video Conference due to pandemic of Covid-19.
2. The instant appeal has been filed by the appellants/opposite parties (hereinafter referred as 'OPs') along with Misc. Application for condonation of delay of 269 days in filing the First Appeal No.261 of 2020 2 appeal, which has been directed against the order dated 21.10.2019 passed by District Consumer Disputes Redressal Forum(now Commission), Faridkot (in short referred as, "the District Commission"), whereby the complaint filed by complainant against the opposite parties, under Section 12 of the Consumer Protection Act, 1986, was allowed and direction was given to the OPs to pay the amount of Rs.10,000/- to the complainant on account of price of lost mobile handset and also to pay compensation of Rs.5,000/- for causing mental agony and harassment and Rs.3,000/- as litigation expenses, within one month from the date of receipt of copy of the order.
3. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
Facts of the Complaint
4. Brief facts, as averred in the complaint, are that the complainant alongwith his family and friends made plan to go to Shri Shirdi Sai Mandir at Shirdi, Maharashtra and got booked seats in Train No.12138 for 22.12.2018. They reached Manmard on 24.12.2018. He also booked return seats from Igatpuri to Faridkot for 26.12.2018 in Train No.12137-Punjab Mail. It is averred that the scheduled time of train to reach at New Delhi was 21.15 hours and departure time is 21.50 hours after 35 minutes' stay at New Delhi. But the train was late by one hour and when the train arrived, the complainant and his family occupied the booked seats. It is further averred that when the train was leaving Kishanganj station its speed was slow. So the complainant after converting his seat into bed, took First Appeal No.261 of 2020 3 out his mobile for setting alarm but at once, one unidentified person snatched his mobile and jumped out from the train very fastly. It is then averred that he immediately searched for Coach Attendant but neither the Coach Attendant nor any Guard was available there. Even no TTE or Caretaker of the coach was available there. It is averred that after 20 minutes of the incident, two guards arrived and the complainant narrated the entire incident to them and got lodged FIR in train. It is averred that it is the duty of Coach Attendants to check the tickets of all the passengers present in the coach and to restrict entry of any unauthorized person in the train and also to ensure that number of passengers do not exceed the carrying capacity and it is also the duty of the Coach Attendant to keep the doors of the train closed during its running and to remain vigilant particularly at night, but employees of OPs did not perform their duty diligently and were negligent during working hours. It is further submitted that complainant got booked the ticket for travelling in the train from OP-3. It is also averred that FIR with regard to loss of mobile was lodged in the train. It is averred by the complainant that he made several requests to OPs to help him to find out his mobile phone or to pay the price of same as it was lost due to deficiency in service in not providing security during the journey but to no effect. It is alleged that this act and conduct of the OPs have caused great monetary loss and mental agony to him and it amounts to deficiency in service on their part. So he filed the complaint for seeking directions to OPs to pay Rs.10,999/- price of mobile and to pay Rs.1,00,000/- as compensation for harassment and mental agony suffered by him besides Rs.11,000/- as litigation expenses.
First Appeal No.261 of 2020 4
5. Upon notice, opposite parties filed their written statement taking preliminary objections that the complainant purchased the alleged mobile phone for Rs.10,999/- on 28.08.2017 and till snatching, it was being used by him and as such, the value of the mobile phone was not more than Rs.2,000/-. Therefore, claim sought by him is not justifiable. It is further pleaded that the complainant has not produced any document to show that he has purchased new SIM card and made any report to the said Mobile Company of which SIM Card was being used/inserted in the mobile. It is also pleaded that the complainant has not mentioned which mobile number, he was using at the time of said snatching incident nor there is any document showing that his mobile was under activation in the area of Delhi on that day. It is further pleaded that no call detail or tower location record of mobile handset is shown by him. It is further pleaded that at the time of said alleged incident, many passengers were available in the train, but nobody came forward to help the complainant and his complaint is not supported by any other passenger. No hue and cry was made by him nor did he pull the chain to stop the train at the time of said alleged snatching incident. Complicated questions of law and facts are involved in the complaint which require lengthy evidence, but the procedure under the Consumer Protection Act is summary in nature. OPs denied all the allegations levelled by the complainant being wrong and incorrect and pleaded that complainant has suppressed the true and material facts and approached the District Commission with unclean hands. It is pleaded that the said incident occurred due to negligence and carelessness of the complainant for which OPs are not liable to compensate him. Another objection has First Appeal No.261 of 2020 5 been taken that offence has taken place near Delhi, therefore, this Forum has no jurisdiction to hear and try the present complaint. It is pleaded that the complainant has concocted the entire story and has not come to the District Commission with clean hands. It is denied that doors of compartment were open during running of the train, rather doors were latched and bolted from inside, therefore, it is denied that someone had snatched the mobile of the complainant. However, it is admitted that the complainant got recorded FIR to this effect in train but the said FIR is incomplete and is not reliable. It is asserted that all the employees of OPs perform their duties diligently and there is no deficiency in service on the part of OPs. Allegations regarding loss suffered by the complainant were refuted with a prayer that complaint deserves to be dismissed with costs. Evidence tendered by the parties
6. The complainant tendered in evidence his affidavit Ex.C-1 and documents Exs. C-2 to C-5. On the other hand, opposite parties tendered in evidence affidavit of Vivek Sharma Ex.OP-1. Findings of the District Forum
7. Learned District Forum, after going through the same and hearing learned counsel on their behalf, accepted the complaint, as stated above. Hence, this appeal alongwith application for condonation of delay of 269 days in filing the appeal by the OPs. Grounds of Application for Condonation of Delay
8. Brief facts, as averred in the application, are that the delay in filing the appeal has occurred due to the fact that the appellants after receiving the order dated 21.10.2019, started the process for obtaining sanction from the Competent Authority to First Appeal No.261 of 2020 6 challenge the order and to engage the counsel. It is averred that thereafter the papers were sent to the counsel for filing the appeal but as the brief was not readily available with the counsel at Faridkot so it took some time for collecting the papers from that counsel and handing over the same to the counsel at Chandigarh. It is also averred that thereafter the appeal was drafted at Chandigarh and was sent to the appellant at Ferozepur for vetting, signing and notarization and then the same was returned to the counsel at Chandigarh for filing the same. In this process, the delay of 269 days has occurred. It is stated that the delay has occurred due to the abovesaid reason, which is neither intentional nor deliberate. It is prayed that the application be accepted and the delay in filing the present appeal be condoned, in the interest of justice.
Contentions of the Applicant
9. I have heard learned counsel for the applicants/appellants on the application for condonation of delay and have gone through the appeal file carefully.
10. Learned counsel for the applicants/appellants vehemently contended that the delay in filing the appeal is neither intentional nor deliberate but due to the reason that after receiving the copy of order dated 21.10.2019, sanction from the Competent Authority was obtained to challenge the order and to engage the counsel and then the papers were sent to the counsel at Chandigarh for filing the appeal, who informed that the papers are not complete. It is averred that as the brief was not readily available with the counsel at Faridkot as such it took some time in collecting the papers from that counsel at Faridkot and handing over the same to the counsel at Chandigarh. First Appeal No.261 of 2020 7 Thereafter the appeal was drafted at Chandigarh and then sent to the appellants at Ferozepur for vetting, signing and notarized. After doing the needful, the papers were again sent to the appellants counsel at Chandigarh for filing the same and in this process, the delay of 269 days has occurred. It is argued that the delay had occurred due to the above mentioned circumstances, so there is no intentional delay on the part of the applicants/appellants, rather, happened due to bonafide of the applicants/appellants and prayed that the same may be condoned and the appeal be admitted to be decided on merits.
11. I have given my thoughtful consideration to the contentions raised by the learned counsel for the applicants.
12. Admittedly there is delay of 269 days in filing the appeal. However, no cogent reasons and grounds have come forward to explain the same. The explanation given on the part of the applicants/appellants is that the delay has occurred due to the reason that the applicants/appellants after receiving the copy of the order dated 21.10.2019, they obtained the sanction for challenging the order and engaging the counsel at Chandigarh. It is also mentioned that when the papers were sent to the counsel at Chandigarh, he informed that the papers are not complete. Thereafter, counsel at Faridkot was asked to provide the papers of the case but the same were not readily available with him and it took some time by him to collect the same and handing over the same to the counsel at Chandigarh. Then the counsel drafted the appeal and sent the same at Ferozepur for signing and notarized. It is clear from the abovesaid explanation of the appellants that there is casual approach on the part of the applicants/appellants in dealing with the case file, as firstly First Appeal No.261 of 2020 8 no date has been mentioned in the application, when the certified copy of the order has been received by the applicants/appellants, when they obtained the sanction to file the appeal and to engage counsel. It is also not written in the application when counsel at Faridkot was told to supply the papers of the case and when he sent the same at Chandigarh. Secondly, the affidavit has been signed by the Competent Authority on 27.08.2020 but thereafter, for notarizing the affidavit, they took almost 12 days' time. So it is clear that the total casual approach is adopted by the applicants/appellants in dealing with the case. Therefore, the grounds taken in the application for condonation of delay do not justify the delay on the part of the applicants/appellants. Only 30 days statutory period was available for filing the appeal against the order under the Consumer Protection Act, 1986. The explanation given by the applicants/appellants about the condonation of delay is not acceptable. Specific time has been prescribed under the Consumer Protection Act for the disposal of the complaint and for filing of the appeal and the right accrued to the other party cannot be taken away in favour of one party, who was slack and non-vigilant of its right. Reference is made to the judgment of Hon'ble Supreme Court in case "Kamlesh Babu and Ors. Vs Lajpat Rai Sharma and Others", 2008(3) The Punjab Law Reporter-455, wherein while interpreting and explaining the scope of Section 3(1) of the Limitation Act, it was observed as follows:-
"It is well settled that Section 3(1) of the Limitation Act casts a duty upon the court to dismiss a suit or an appeal or an application, if made after the prescribed period, although, limitation is not set up as a defence".
13. Therefore, no plausible explanation is given for the lapse of huge delay of 269 days in filing the appeal. Chain of sequence of First Appeal No.261 of 2020 9 events, which caused the delay of 269 days in filing the appeal, has not been described in order to co-relate the events which allegedly took place from time to time. The applicants have adopted a careless and casual approach in filing the application as well as the appeal. The law is settled that the delay can be condoned when it has been properly explained, but the delay due to casual approach cannot be condoned, at the asking of the applicants, which clearly shows on the part of appellants/OPs. It was held by the Hon'ble Supreme Court in "Anshul Aggarwal Vs. New Okhla Industrial Development Authority", 2011 (14) SCC 578 that while deciding an application for condonation of delay in the cases under the Consumer Protection Act, the Court has to keep in mind that special period of limitation has been prescribed under the Act for filing the appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated, if the highly belated petitions are to be entertained.
14. The Hon'ble Supreme Court in case "Lanka Venkateswarlu (D) By LRs. Vs State of A.P. & Others", 2011 (2) RCR Civil-880 (SC), after considering the entire case law on the point of delay, in Para-26 (relevant portion) observed as under:-
"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 right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly".First Appeal No.261 of 2020 10
15. The Hon'ble Supreme Court in case SLP (Civil) Diary No.(s)13348 of 2019 "The State of Bihar & Ors. Vs. Deo Kumar Singh & Ors.", decided on 09.05.2019 observed (relevant portion) as follows:-
".......We are of the view that a clear signal has to sent to the Government Authorities that they cannot approach the Court as and when they please, on account of gross incompetence of their officers and that too without taking any action against the concerned officers. No detail of this delay of 728 days have been given as if there is an inherent right to seek condonation of delay by State Government. The law of limitation apparently does not apply to the State Government according to its conduct.
That such condonation of delay is no more admissible on the pretext of Government working lethargy is clear from the judgment of this court in The Chief Post Master General vs. Living Media India Ltd. [2012(3) SCC 563] We strongly deprecate the casual manner in which the Division Bench was approached and also this Court has been approached; the objective possibly being to get a certificate of dismissal from this Court. This is complete wastage of judicial time and the petitioners must pay for the same........."
16. In view of above discussion and the law laid down, it is clear that the delay has to be explained properly and sufficient cause for causing delay must be disclosed and the delay caused on account of dilatory tactics, inaction and casual approach cannot be condoned. In the present case, as discussed above, no valid reasons or the explanations have been given for condonation of the delay of 269 days, which occurred due to casual approach. Thus, I do not find any ground to condone the delay of 269 days in filing the appeal.
17. In view of my above discussion, the application for condonation of delay is dismissed, being without any merit. Main Case
18. As the application for condonation of delay has been dismissed, therefore, appeal also stands dismissed, being barred by time.
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19. The appellants had deposited a sum of Rs.9,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The complainant may approach the District Commission for the release of the above amount and the District Commission may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT September 23, 2020.
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