PER JUSTICE SHAM SUNDER(Retd), PRESIDENT This appeal is directed against the order dated 30.3.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed the complaint for non-prosecution, and the order dated 10.5.2012, vide which, application for restoration was also dismissed. 2. The facts, in brief, are that the complainant, purchased a new car Honda City GXI on 7.3.2008 from Opposite Party No.1. The said car was under warranty upto 6.3.2010 and extended warranty was valid upto 6.3.2011. It was stated that the complainant got the car serviced from the authorized service station i.e. Opposite Party No.2. It was further stated that, on 15.9.2009, when the said car was taken out from the garage, the complainant noticed some abnormal noise from its engine. When the complainant took the said car to Opposite Party No.2, the mechanics doubted that some water might have entered into its engine during rain but the same was not visible and advised him to lodge claim with Opposite Party No.3, Insurance Company, with which the car stood insured. It was further stated that the complainant lodged complaint with the Manager, Customer Care of Opposite Party No.1, and received reply that they were not sure, as to whether, the said problem related to the manufacturing defect or seepage of water and asked him to allow them to open its engine. It was further stated that on 2.10.2009, Opposite Party No.1, was requested to depute their engineer, in whose presence, engine would be opened, but in the meanwhile, the claim was forwarded to the Insurance Company, Opposite Party No.3. It was further stated that on 4.10.2009, the complainant was informed that the alleged problem was not covered under the Insurance Policy of the said car. On 5.10.2009, the complainant asked the Opposite Parties to give finding about the problem, in writing, and also to submit estimate for repair. Mr. Jaswinder Singh, Service Manager of Opposite Party No.2, gave estimate for repair to the tune of Rs.1,26,331.14. 3. On 13.10.2009, during a meeting of the complainant, with the Opposite Parties, a fresh estimate of repair was prepared for Rs.24,000/-, but the surveyor of Opposite Party No.3, stated that the said problem was not covered under the Insurance Policy, as there was no sign of damage, because the car was driven through deep water. It was further stated that the engineers went on changing their stand every day. They also kept on changing their estimate for repair. Ultimately, on 25.11.2009, the complainant was forced to pay a sum of Rs.34080/- against the estimated cost of Rs.31497/-. When the engine was partly dismantled and checked, it was found that one of the connecting rods was bent, piston was found scratched at one point, depression in the cylinder caused by the thrust of piston, but the air cleaner/air inlet pipe when dismantled, there was no presence of any water marks inside the filter body and the air filter, which clearly proved that it was the manufacturing defect which was covered under the warranty which was valid upto 7.3.2010. It was further stated that by giving different estimates , and furnishing false and cooked up opinions, regarding the problem of abnormal noise coming out of the engine of the car, the Opposite Parties were not only deficient, in rendering service, but also indulged 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 by him, directing the Opposite Parties to refund Rs.34080/- paid for the repair of the vehicle ; compensation of Rs.3.00 lacs for harassment and mental agony and Rs.5000/- as costs of litigation. 4. The complaint was admitted vide order dated 25-10-2011, and notice was ordered to be issued to the Opposite Parties for 8.12.2011, by the District Forum. For 8.12.2011, Opposite Parties No.1&2, were served, and their authorized representatives/Counsel put in appearance. However, Opposite party No.3 was not served, as a report was received that it had shifted its office from the address given. The complaint was then adjourned to 12.1.2012 for service of Opposite Party No.3, and reply/evidence of Opposite Parties No.1 & 2. On the adjourned date, Opposite Party No.1 filed reply and evidence. However, OP No.3, could not be served, for want of correct address. The complainant did not furnish correct address of Opposite Party No.3, and, as such, it could not be served for 23.2.2012. The complaint was ultimately adjourned to 30.3.2012, with a direction to the complainant to furnish the correct address of Opposite Party No.3, within a week. 5. On 30.3.2012, the complaint was called many times, but none entered appearance, on behalf of the complainant, as a result whereof, the same was dismissed for non-prosecution, by the District Forum. 6. Feeling aggrieved, the instant appeal, was filed by the appellant/ complainant. 7. Alongwith the appeal, an application for condonation of delay of 134 days, in filing the same (appeal), has been moved. The ground, set up in the application, is to the effect, that an application for restoration of the complaint, against the order dated 30.3.2012, was filed within the period of limitation before the District Forum, but the same was dismissed, on the ground, that it (District Forum) was not vested with the power to review its own order. It was stated that the Counsel for the applicant/appellant had undergone nasal surgery and, therefore, he could not prepare the appeal, resulting into delay of 134 days, in filing of the same. It was further stated that due to illness of the Counsel , the appeal could not be filed, in time. It was further stated that the delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made. 8. We have heard the Counsel for the applicant/appellant, on the application, for condonation of delay, as also, in the main appeal, and have gone through the evidence, and record of the case, carefully. 9. First coming to the application, for condonation of delay, it may be stated here, that the same is liable to be dismissed, for the reasons, to be recorded hereinafter. The first question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 134 days, in filing the appeal, under Section 15 of the Act. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab & Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court held as under:- “No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.” 10. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under:- “There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.” 11. In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:- “We hold that in each and every case the Court has to examine whether delay in filing the Special 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”. 12. Recently, Supreme Court in Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) has laid down that:- “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the 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 this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras” 13. Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant, has been able to establish that it was, on account of the circumstances, beyond his control, that he could not file the appeal, in time. The appeal could be filed within 30 days, from the date of receipt of a copy of the order. The ground set up, by the applicant/appellant, in the application, for condonation of delay, is that the delay aforesaid, in filing the appeal, occurred on account of the illness of his Counsel, who was undergoing nasal surgery. Copy of the Out Patient Card dated 12.3.2012 of the Postgraduate Institute of Medical Education and Research, Chandigarh, placed on the District Forum file, alongwith the application for the restoration of complaint, shows that Arvinder Arora aged 32 years was a outdoor patient of Pre-anesthesia Clinic/GA and last date of visit shown therein is 28.3.2012. No affidavit of the Counsel for the complainant ,was filed, to the effect, that he was immobile and remained in the hospital/house for the aforesaid period, or thereafter. Certified copy of the impugned order dated 30.3.2012 was received by the applicant/appellant on 2.4.2012. In the application for restoration filed by the Counsel for the complainant on 30.4.2012, it was stated that the complainant came to know of the order dated 30.3.2012 on 4.4.2012. Certified copy of the order dated 10.5.12, dismissing the application for restoration/review, was received by the applicant/appellant on 31.5.2012, whereas, the appeal was filed on 21.9.2012. Even if, the version of the applicant/appellant, is believed to be true for the sake of arguments the appeal could be filed within time. The applicant/appellant apparently acted leisurely, and did not take action for filing the appeal within 30 days, from the date of receipt of a copy of the order. Thus, the delay of 134 days, in filing the appeal which is about 4½ more than the normal period of limitation, within which the same(appeal) could be filed, was on account of the complete inaction and lack of bonafides, attributable to the applicant/appellant. The cause, set up by the applicant/appellant, regarding the alleged illness of his Counsel, in the application, for condonation of delay, is not wholly correct. By 30.4.2012, the Counsel for the complainant was hale and hearty, when he filed an application for review of the order dated 30.3.2012 vide which the complaint was dismissed for want of prosecution. By that time, he still had time to file an appeal against the order dated 30.3.2012, within the period of limitation. The delay, in filing the appeal was, thus, intentional and deliberate. The applicant/appellant, therefore, failed to prove any sufficient cause, in filing the appeal, after such a long delay of 134 days. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 134 days , cannot be condoned. The application is, thus, liable to be dismissed. 14. The Counsel for the applicant/appellant, submitted that, since he moved an application for review of the order dated 30.3.2012 before the District Forum on 30.4.2012 and the same was dismissed on 10.5.2012, that period is required to be excluded from the period of limitation, as he was prosecuting the proceedings, before the District Forum, in that application, in good faith and with due diligence. The submission of the Counsel for the applicant/appellant , in this regard, does not appear to be correct. The Act does not vest the District Forum, and the State Commission. with the powers of review of its own order. The Counsel for the applicant/appellant, was well aware of the fact that power of review, was not vested in the District Forum, and despite that, he moved an application for review/recall of the order dated 30.3.2012, vide which the complaint was dismissed . In Zafar Khan and others Versus Board of Revenue, UP and others AIR 1985 Supreme Court 39, the Hon’ble Apex Court, observed that in order to attract the application of Section14, the parties seeking its benefit, must satisfy the Court that (i) the party as the plaintiff was prosecuting another civil proceeding, with due diligence (ii) that the earlier proceeding and the later proceeding relate to the same matter in issue and (iii) the former proceeding was being prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. However, in the instant case, there is no material, available, on record, showing that the applicant/appellant was pursuing his remedy, by filing an application for recall of the order dated 30.3.2012, with due diligence and in good faith. On the other hand, in our considered opinion, the applicant/appellant was pursuing that remedy, knowing fully well that the District Forum was not vested with the power to review or recall its order. Since the applicant/appellant was not prosecuting the litigation, before the District Forum with due diligence and in good faith, he could not seek exclusion of the period for counting the period of limitation. The submission of the Counsel for the applicant/appellant, in that regard, being without merit, must fail and the same is dismissed. 15. The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory on the Commission, to condone the delay. The answer to this question, is in the negative. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was held as under:- “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.” 16. It is evident, from the principle of law, laid down, in Ram Lal & Ors.’s case (supra), that even 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, requires the Commission, to take into consideration, all the relevant factors, and it is at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory upon the applicant/appellant, to take immediate steps, to ensure that the appeal was filed within the stipulated period, as envisaged under Section 15 of the Act. However, the applicant/appellant, just slept over the matter and did not take steps to file the appeal in time. It was, thus, a case of complete lack of bonafides and inaction, on the part of applicant/appellant. The principle of law, laid down in Ram Lal & Others’ case(supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission should exercise its discretion, in favour of the applicant/appellant, in condoning the delay. 17. For the reasons, recorded above, the application for condonation of delay of 134, being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal under Section 15 of the Act, is also dismissed, being barred by time, with no order as to costs. 18. Certified Copies of this order be sent to the parties, free of charge. 19. The file be consigned to the Record Room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
