Haryana

StateCommission

A/1025/2018

FANCY STATIONERY - Complainant(s)

Versus

AMIT AND ANOTHER - Opp.Party(s)

ASHWANI BHARDWAJ

12 May 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

               

       First Appeal No.1025 of 2018

                                                Date of Institution: 06.09.2018

Date of order: 12.05.2023

 

Fancy Stationery, Pushpa Complex Hisar through its Proprietor/Partner Jitender Kumar.

…..Appellant

Versus

1.      Amit S/o Atma Ram R/o H.No.518, Sector 15, Hisar Tehsil and Distt. Hisar.

2.      M/s Appsdaily Solutions Pvt. Limited, D-3137-39, Oberoi Garden Limited, Chandivali Farm Road, Anheri (East) Mumbai 400072 through its Managing Director.

…..Respondents

CORAM:    Mr.S.P.Sood, Judicial  Member

                  

Present:-    Mr.Sumit Sharma proxy counsel for Mr.Ashwani Bhardwaj, Advocate for the appellant.

                   Respondent No.1 was proceeded against ex parte.

                   Respondent No.2 was dispensed with vide order dated 14.12.2022.

                  

                                                ORDER

S P SOOD, JUDICIAL MEMBER:

The present appeal No.1025 of 2018 has been filed against the order dated 16.08.2016 of the District Consumer Disputes Redressal Forum, Hisar (In short  now “District Commission”) in complaint case No.317 of 2015, which was allowed.

2.      There is a delay of 719 days in filing the appeal.  Appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  719 days wherein,  it is alleged that appellant was not having any information about the order and when the complainant filed execution and notice was received then the appellant came to know about the said complaint as well as the consequent impugned order. The present appeal was filed without any further delay but registry of the court raised the objection  of not submitting of the certified copy of order under assail.  The appellant  tried to get the certified copy of the order dated 16.08.2016 but the original order was modified on 07.09.2017. Therefore the delay in filing the appeal was not at all deliberate and had occurred on account of the reasons mentioned herein above.  Thus, delay of 719 days in filing of the present appeal may please be condoned.

3.         Arguments Heard. File perused.

4.         Learned counsel for the appellants vehemently argued that appellant was not served and did not have any information about order rather he learnt about it when complainant filed execution petition whereinnotice was received.  This is how present appeal was filed without any further delay but even registry of the court also raised the objection  and directed it to file the certified copy of order dated 16.08.2016.  The appellant  tried to get the certified copy of the impugned order and found that the original order was modified on 07.09.2017. Due to the above said reasons, the appeal could not be filed, so the delay may be condoned. 

5.         This argument was not available.  A period of 30 days as per the old Act has been provided for filing an appeal against the order of the District Commission. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

6.                         The inordinate delay of 719 days cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

          The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“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 S.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 litigant who is not vigilant about his rights must explain every days delay.”

          The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

                In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been observed:

         “We hold that in each and every case the Court has to examine whether delay in filing the special appeal 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.”

      In Ram Lal and Ors.  Vs.  RewaCoalfields  Ltd., AIR  1962 Supreme Court 361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

         

7.      Taking into consideration the pleas raised by appellant in the application for condonation of delay and settled principle of law, this Commission does not find it a fit case to condone delay of 719 days in filing of the appeal. Hence application filed for condonation of delay  in appeal No.1025 of 2018 is dismissed.  

8.      The brief facts of the case are that the respondent herein/complainant had purchased a mobile hand set Sony Z-2 from Fancy Stationery, Pushpa complex, Hisar appellant vide invoice NO.9623 dated 12.11.2014 for a sum of Rs.38,000/-. Alongwith the mobile hand set, the complainant obtained the insurance policy for it by paying Rs.1749/-.  Unfortunately on 14.01.2015, when complainant was travelling in a metro from Rajiv Chowk to Civil Lines, Metro station  his mobile hand set got stolen.  FIR was lodged on the same day. Intimation was also given to the respondent about theft of the mobile hand set.  He obtained non traceable report from the local police.  Afterwards the complainant requested the OP to pay the insured amount, but, all in vain.  Faced with this situation, he got issued a legal notice dated 19.06.2015 to the OP but in vain. Thus there being deficiency in service on the part of the OP.

9.      Upon notice, OPs failed to appear and were thus proceeded  against ex parte vide order dated 18.11.2015.

10.    After hearing counsel for the complainant, the learned District Commission, Hisarhas allowed the complaint vide order dated 16.08.2016:-

“Considering the facts of the case, we allow the complaint of the complainant and direct the respondents to pay Rs.38000/- i.e. cost of the mobile hand set to the complainant, who shall be jointly and severally liable to comply the order within 30 days, from the date of passing of this order..”

11.    Feeling aggrieved therefrom, OP No.2-appellant has preferred this appeal.

12.    It is not disputed that  complainant purchased the cell phone make Sony Z-2 from the  opposite party No.2 in the year 2014 and also got it insured by paying Rs.1749/-.  It is also not disputed that on 14.01.2015 his said hand set got stolen.  It is also not disputed that on the same day when the mobile hand set was stolen, FIR was lodged by the complainant and intimation about this theft was also given to the insurance company.   Insurance policy Ex.C-2 shows that complainant had obtained insurance cover for his mobile hand set  against theft burglary, physical damage including fluid damage. Since FIR itself shows that mobile hand set was stolen therefore why the insurance company did not give insured amount to him. Untrace report Ex.C-4 also shows that inspite of best efforts by the police there was no clue could be found about culprits and stolen property  and the case was treated as untraced on 30.05.2015.   The learned District Commission has rightly allowed the complaint as all these contentions remained unchallenged and unrebutted.

13.    Resultantly, the contentions raised on behalf of the present appellant stands rejected as rendered no assistance and found to be untenable and the order passed by the learned District Commission does not suffer from any illegality or perversity and is well reasoned and accordingly stands maintained for all intents and purposes.Hence,  the appeal  stands dismissedon both the grounds i.e. delay as well as on merits.

14.    The statutory amount of Rs.19,000/- deposited at the time of filing the appeal be refunded to the respondent No.1-complainant-Amit S/o Atma Ram against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

15.    Applications pending, if any stand disposed of in terms of the aforesaid judgment.

16.    A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

17.    File be consigned to record room.

 

12thMay, 2023                                                                     S. P. Sood                                                                                                                            Judicial Member

S.K

(Pvt. Secy.)