Tripura

StateCommission

A/13/2019

The General Manager IndiGo - Complainant(s)

Versus

Sri. Sukhen Chandra Das - Opp.Party(s)

Mr. D. Bhattachrya

20 Sep 2019

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Case No.A.13.2019

 

 

1. The General Manager, IndiGo,

Inter Globe Aviation Ltd.,

Represented by the Station Manager (In-charge of IndiGo),

Agartala Station, Tripura, P.O. & P.S. Airport,

District - West Tripura - 799009.

… … … … Appellant/Opposite Party.

•  

 

1. Sri Sukhen Chandra Das,

          S/o Chandra Mohan Roy,

R/o Village Joynagar, 

Near Ration Shop No.79,

P.O. Agartala, P.S. West Agartala,

District - West Tripura – 799001.

 

2. Smt. Gita Das,

          W/o Sri Sukhen Ch. Das,

R/o Village Joynagar, 

Near Ration Shop No.79,

P.O. Agartala, P.S. West Agartala,

District - West Tripura – 799001.

 

3. Sri Santanu Das 

          S/o Sri Sukhen Chandra Das.

R/o Village Joynagar, 

Near Ration Shop No.79,

P.O. Agartala, P.S. West Agartala,

District - West Tripura – 799001.

… … … …Respondent/Complainants.

 

 

Present

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

 

Mr. Narayan Ch. Sharma,

Member,

State Commission

 

Dr. Chhanda Bhattacharyya,

Member,

State Commission

 

 

For the Appellant:                                    Mr. Kushal Deb, Adv.

For the Respondents:                                Mr. Rajib Saha, Adv.

Date of Hearing & Delivery of Order:     20.09.2019.

O R D E R [O R A L]

U.B. Saha, J,

 

The instant appeal is preferred by the appellant, General Manager, IndiGo (hereinafter referred to as opposite party) against the judgment dated 26.11.2018 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.38 of 2018 whereby and whereunder the learned District Forum allowed the complaint petition filed by the respondents (hereinafter referred to as complainants) directing the opposite party to pay Rs.6,000/- towards the loss of garments of the complainants, Rs.4000/- being the value of the suitcase and also to pay Rs.30,000/- for causing their mental agony and harassment together with Rs.3000/- being the cost of litigation, in total Rs.43,000/-. The aforesaid amount is to be paid within a period of two months from the date of judgment failing which the amount of compensation shall carry interest @9% per annum till the payment is made in full. The appellant-opposite party has also filed an application for condoning the delay of 153 days in preferring the appeal.     

2. Today the matter is fixed for order on condonation petition.
3. Heard Mr. Kushal Deb, Ld. Counsel appearing for the appellant-opposite party as well as Mr. Rajib Saha, Ld. Counsel appearing on behalf of the respondent-complainants.
4. Brief facts needed to be discussed are as follows:-

The complainants, namely, Sri Sukhen Ch. Das, Smt. Gita Das and Sri Santanu Das, all are family members, had filed a complaint petition under Section 12 of the Consumer Protection Act, 1986 before the learned District Forum complaining deficiency of service by the opposite party-IndiGo Airlines. The complainants' case, in short, is that, on 6^th April, 2018, all the complainants went to Kolkata by Indigo flight 6E 277 for the purpose of medical check-up of the complainant no.1, Sri Sukhen Chandra Das. After reaching at Kolkata Airport they did not find one number of luggage (suitcase) which they had booked in Agartala while they checked-in at the IndiGo counter. They waited for long time at Netaji Subhash Chandra Bose International Airport in Kolkata, but the suitcase was not traced out by the IndiGo staff. Ultimately, the complainant no.3, Sri Santanu Das approached the Station Manager, IndiGo Airlines, Kolkata and as per his instructions, a written complaint was prepared by one of the staffs of IndiGo Airlines on behalf of the complainants (PIR). All the complainants put their signatures on the written complain. On submission of complaint, one token of proof of the booked undelivered luggage was issued in favour of the complainants. Due to missing of the suitcase, the complainants suffered a lot. The suitcase was containing medical papers and other valuable documents as well as one mobile set with battery charger. Due to the missing of the medical papers, the complainant no.1 had to undertake different tests afresh at Kolkata as per the advice of the doctor on payment of necessary charges. The complainants had to buy new wearing apparels for their use in Kolkata and had to spent additional money for the medical treatment of complainant no.1. On 18.06.2018, the complainants had filed the complaint petition before the learned District Forum claiming compensation amounting to Rs.2,75,000/-.

5. Based on the notice issued by the learned District Forum, initially the opposite party did not appear. Thus, on 26.07.2018, order was passed ex parte for evidence of the complainants. As per the case record on 21.08.2018, one vokalatnama was submitted by the opposite party and subsequently, on 05.10.2018, written statement was also filed on behalf of the opposite party. Thereafter, the opposite party did not take any step.
6. The opposite party in their written statement admitted the undertaking of journey of the complainants in their Airlines on 06.04.2018 and also missing of one booked luggage (suitcase) of the complainants. The opposite party further stated in their written statement that on behalf of the IndiGo Airlines, the complainants were offered an amount of Rs.3,850/- as compensation for the loss of their baggage.
7. The complainants submitted some documents, namely, air tickets, boarding passes of three persons, Property Irregularity Report (PIR) issued by the IndiGo Airlines, Doctor's Prescriptions and Advocate's Notice dated 21.05.2018. Complainants also examined one witness, namely, Sri Santanu Das as P.W.1.
8. The opposite party, on the other hand, did not produce examination-in-chief by way of affidavit of any witness. The opposite party also did not produce any documentary evidence.
9. The learned District Forum after considering the evidence on record passed the impugned judgment.
10. Being aggrieved and dissatisfied with the impugned judgment, the appellant-opposite party has preferred the instant appeal along with an application for condoning the delay of 153 days in preferring the appeal.
11.  

“

Reasons for causing delay in preferring the appeal are stated in paragraph 6 to 10 of the condonation petition which are as follows:-

 

6. Immediately thereafter, the concerned advocate of the law firm contacted the local counsel for an update in the matter. The said local counsel informed the said local counsel of the law firm that due to inadvertence he had missed out the email instructing him to appear in the matter. Upon hearing so, the concerned advocate on the law firm instructed him to apply for the certified copy of the Impugned Order, on an early basis.
7. That the concerned advocate of the law firm constantly followed up with the local counsel for an update on the certified copy of the Impugned Order. However, the said local counsel informed the concerned advocate of the law firm that he has not received the same yet from the Registry of the Ld. District Forum.
8. That on and around 30.04.2019, InterGlobe Aviation Limited was shocked to receive the execution petition being EA/08/2019. Immediately upon its receipt, InterGlobe Aviation Limited sent the same to the concerned advocate of the law firm.
9. That the concerned advocate of the law firm immediately contacted its local counsel about the status of the certified copy of the Impugned Order. That the concerned advocate of the law firm informed the local counsel that he had received the certified copy of the Order on 25.03.2019. However, due to inadvertence he was unable to update the concerned advocate of the law firm about the same. An affidavit of the local counsel in this regard, is annexed herewith and marked as “Annexure A/11” to the appeal.
10. That on and around 06.05.2019, the concerned advocate of the law firm received the physical copy of the certified copy of the Impugned Order from the said local counsel. A true copy of the tracking details is annexed herewith and marked is ‘Annexure A’.”

12. The respondent-complainants have filed an objection to the prayer for condonation of delay wherein it is stated that the contention made in the condonation petition are mainly depicting the internal transactions between the appointed lawyers of the opposite party, except that, no other reason or explanation has been given for causing such huge delay in preferring the appeal.
13. Mr. Deb, Ld. Counsel appearing for the appellant-opposite party while urging for condoning the delay as sought for would contend that admittedly, one bag (suitcase) of the complainants was lost and the opposite party offered an amount of Rs.3,850/- as compensation for the loss of their baggage. He again submits that admittedly there is no mention in the condonation petition as to when the certified copy of the impugned judgment was received by the Ld. Counsel of the opposite party. His main contention is that the local Counsel, Mr. Debalay Bhattacharya informed the Ld. Counsel of the law firm that due to inadvertence he had missed out the email instructing him to appear into the matter who had received the certified copy of the Order on 25.03.2019. However, due to inadvertence he was unable to update the concerned advocate of the law firm about the same. Hence, the delay.
14.  

“

Per contra, Mr. Saha, Ld. Counsel appearing on behalf the complainants while objecting to the prayer for condonation of delay has relied upon the Paragraph-13 to 18 of the objection which are as follows:-

 

13. In turn to the statements made in paragraph No.10 and 11 of the instant application, the answering respondents most respectfully submit that these are matters of record as such required to proved by adducing evidences in this regard to substantiate it’s plea by the appellant before this Hon’ble Commission. It is humbly stated here that there are so many lapse and long gap between the transactions one after another as mentioned by the appellant as such the delay has not been properly explained in any manner by the appellant and on this score only the present application deserves no merit at all by this Hon’ble Commission.
14. That the present application for condoning the delay of 153 days contains only some vague statements supported by an affidavit on oath shows, nothing but absolute casual approach by the appellant in presentation of the present application. Hence the instant application of the appellant deserves no liberal approach of this Hon’ble Commission in absence of proper explanation for causing delay, from the side of the appellant.
15. It is humbly stated here that the appellant is in no way diligent to pursue/prefer the appeal, moreso the appellant not even care to contest the complaint case before the Ld. Forum below. Resultantly, the Ld. Forum has passed the ex-parte judgment in the complaint case. Had the appellant been so diligent in pursuing the appeal they would have approach this Hon’ble Commission in following manner and prayer:

1. With clean hands;
2. With proper day to day explanation for causing delay in preferring appeal instead of such vague statements;
3. With the proper and reasonable explanation as to why the appellant did not file the appeal within the statutory limitation period, before this Hon’ble Commission;

16. The answering respondents most respectfully deny that such delay as mentioned by the petitioners was unintentional rather the application submitted by the appellant with mala fide and deserves no merit at all and the same warrants to be dismissed with cost.
17. That it is most humbly submitted by your humble respondents that a simple reading of the application for condonation of delay, clearly demonstrates that the appellant have not given the reasonable explanation for the period of delay caused in filing the connected appeal further the evasive statements, as made in the application, leads to an irresistible conclusion that there is serious latches on the part of the appellant in preferring the appeal and as such the appellant has lost its all rights to seek for condoning such long delay. Further it is submitted that the aforesaid delay was intentional, apparently, and the prayer for condonation of the delay is filed mala fide and as such the present application worth dismissal with heavy cost.
18. That the answering respondents most humbly submits that the reasons for delay, as stated in the present application, are not reasonable and the appellant could have avoided such delay if the appellant took due carte in filing the connected appeal. The delay has been resulted due to latches and negligence on the part of the appellant and the connected appeal has been filed with the view of defeating the legitimate right of the respondents and due to this the present application, for condoning the delay, is liable to be dismissed at the threshold, for the fair ends of justice.”  

He again submits that an advocate is the agent of the party and his acts and statements made within the limits of authority given to him, are the acts and statements of the principal, i.e. the party who engaged him. He further submits that in the condonation petition, there is nothing as to which date the Ld. local Counsel informed the Counsel of the law firm regarding the impugned judgment and when the Ld. Lawyer of the law firm contacted with the local Counsel. He has finally contended that the contentions made in the condonation application are nothing but a portrait of some vague statements. Thus, the condonation petition may be dismissed.

15. We have gone through the condonation petition as well as the objection. In the condonation petition, there is no date and time as to when the Ld. local Counsel, Mr. Debalay Bhattacharya informed the Counsel of the law firm regarding missing of the email instruction wherein he was asked to appear in the matter. It is also not there in the condonation petition when Mr. Bhattacharya was asked to apply for the certified copy of the impugned judgment.
16. In Basawaraj & Anr. Vs The Spl. Land Acquisition Officer (Civil Appeal No.6974 of 2013), the Hon’ble Apex Court observed that “It is a settled legal proposition that law of limitation may 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. ‘A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.’ 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. The legal maxim ‘dura lex sed lex’ which means ‘the law is hard but it is the law’, stands attracted in such a situation. It has consistently been held that, ‘inconvenience is not’ a decisive factor to be considered while interpreting a statute.”
17. ‘Sufficient cause’ is the cause for which the opposite parties could not be blamed for their filing of appeal in time. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. In other way, it can be said 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 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".
18. As per settled law, culled out from various judicial decisions, the above expression, 'sufficient cause' though deserves to receive a liberal construction, yet, a just and equitable balance has to be maintained between the right secured by the respondent as a result of the expiry of the prescribed period of limitation and the injustice of depriving the appellants of adjudication of their grievances on the merits of their appeal for causes beyond their reasonable control, which means the cause is bona fide and beyond the control of the appellants. There is no hard and fast rules what should be the 'sufficient cause' in a given case.
19. In Cicily Kallarackal Vs Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein the Hon'ble Supreme Court observed:-

“4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC), has explained the scope of condonation of delay in a matter where the special Courts /Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute(s).

5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.

6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay”.

In the aforesaid judgment Hon’ble Supreme Court has highlighted that while dealing with an application for condonation of delay the Court must bear in mind the object of expeditious disposal of consumer dispute which would get defeated if the Court was to entertain highly belated petitions.”

20. In the case of Dr. Chandrakant Parshuram Mahajan Vs. New India Assurance Co. Ltd. and others [Revision Petition No.698 of 2018] 2019 (2) CLT 366, the Hon’ble National Commission while deciding the Revision Petition held that “It is true that counsel represents the party in the proceedings, however, the case relates to the party and party is required to be vigilant and watchful for its interest in the case proceedings before any court. It seems that the complainant was not pursuing the case properly, otherwise, he should himself have contacted the counsel to know the progress of his case. Special limitation periods have been prescribed in  for speedy disposal of consumer disputes. Honble Supreme Court in , IV (2011) CPJ 63 (SC) has observed the following:

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  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.”

The Honble National Commission also considered the case of R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108 wherein the Hon’ble Apex Court 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.”

21. There is no doubt that an application for condonation has to be considered liberally, but that does not mean that when there is no reasonable explanations in the condonation petition, the prayer for condonaton is to be allowed. In the instant case, there is no reasonable explanation as to why the appellant-opposite party was not pursuing their case vigilantly when they have admittedly filed their written statement in the learned District Forum. Thus, it can be said that the appellant-opposite party were not pursuing their case vigilantly, when they have filed their written statement in the learned District Forum. Thus, it can be said that the appellant-opposite party was not pursuing their case properly, otherwise; they should themselves have contacted the Counsel in time to know the progress of their case. This is not the first case of the appellant-opposite party for condonation of delay, rather in some other cases also, on similar grounds i.e. the lapses of the engaged counsel, the appellant-opposite party have filed condonation petition and those were also dismissed by this Commission.     

In view of the above, we are of the opinion that the delay in filing the instant appeal has not been properly explained and the same is also not reasonable and satisfactory as required under law. Accordingly, the condonation petition is dismissed and in consequent thereto, the appeal also stands dismissed.

Send down the records to the learned District Forum, West Tripura, Agartala.

 

 

 

MEMBER State Commission Tripura MEMBER State Commission Tripura PRESIDENT State Commission Tripura