Haryana

StateCommission

A/383/2019

KUWAIT AIRWAYS AND ANOTHER - Complainant(s)

Versus

ABROL ANGAD - Opp.Party(s)

ADITYA VERMA

12 May 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

               

       First Appeal No.383 of 2019

                                                Date of Institution: 22.04.2019                                                        Date of order: 12.05.2023

 

1.      Kuwait Airways,  401, (fourth-Floor), Ashoka Estate, 24 Barakhamba Road, New Delhi 110001, Through its Director/Manager.

2.      Kuwait Airways India, Room No.109, Level-V, Indira Gandhi International Airport, Terminal-3, New Delhi-110037, through its Director/Manager.

…..Appellants

Versus

Abrol Angad S/o Dr.Abrol Rajesh R/o H.No.355, Model Town, Abrol Hospital in front of Civil Hospital, Distt. Fatehabad, Haryana.

…..Respondent

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

                  

Present:-    Nonefor the appellant.

                   Mr.R.K.Narang, Advocate for the respondent.

 

                                                ORDER

S P SOOD, JUDICIAL MEMBER:

The present appeal No.383 of 2019 has been filed against the order dated 29.11.2018 of the District Consumer Disputes Redressal Forum, Fatehabad (In short  now “District Commission”) in complaint case No.179 of 2018, which was allowed partly.

2.      There is a delay of 83 days in filing the appeal.  Appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  seeking condonation of this delay  alleging inter alia that delay of 83 days has resulted due to wrong placement of prepared documents by the clerk in some other brief in the office of the appellant. This is how when members of legal team of the appellant found those misplaced documents then the same were sent to the arguing counsels and caused this delay. Therefore, the delay was neither intentional nor deliberate but it was purely for these reasons. Thus, delay of 83 days in filing of the present appeal may please be condoned.

3.         Arguments Heard. File perused.

4.         Learned counsel for the appellants vehemently argued reiterating that the delay of 83 days was caused due to wrong placement of prepared documents by the clerk in some other brief in the office of the appellant. When members of legal team of the appellant found those misplaced documents then the same were sent to the arguing counsels. Due to the above said reasons, the appeal could not be filed, so the delay may be condoned. 

5.         However, this argument is 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 83 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 appellants in the application for condonation of delay and settled principle of law, the explanation furnished by appellant is not acceptable especially in view of the fact that name of the clerk  who allegedly put documents in some other brief has not been disclosed and even his sworn affidavit is also not filed. Further even name of the other case file brief has also not been disclosed.This Commission does not find it a fit case to condone delay of 83 days in filing of the appeal. Hence application filed for condonation of delay  in appeal No.383 of 2019 is dismissed.  

8.      The brief facts of the case are that the complainant-respondent here had booked two return tickets with appellant-Kuwait Airways from Delhi to London, one for himself and another for his father Sh.Abrol Rajesh online at Fatehabad. On 21.10.2017, the payment of both the tickets amounting to Rs.35,691/- each was also remitted to OPs through HDFC bank. Thereafter complainant also received the electronic tickets on 21.10.2017 from Delhi vide flight KU384 Departure 21.12.2017 and return on 30.12.2017. As per norms two bags of 23 KG kg. each was allowed to be carried in the flight per person. On 21.12.2017, the complainant alongwith his father went aboard with OP flight No.384. His father returned to India on 30.12.2017 in flight No.383 of the OPs and reached Delhi airport. However complainant did not find one of his bag which was checked in and handed over to OP Airways during check-in assuring it to be delivered at the destination.  The complainant enquired from the official of the OP  about his trolley bag but no reply was given. The bag contained valuable clothes.  The complainant had purchased garments articles and winter clothes for daily use which all were kept in the bag which was entrusted with the OPs.  After receiving no reply from OPs, the complainant had to purchase several articles including track suit online worth Rs.2774/-, undergarments of Rs.3080/- from Price super store and items of Rs.6490/- were also purchased from Durga Sper store, Fatehabad etc.  In all the complainant had to spent Rs.73,382/- on all these articles. He requested the  OPs to file and give the bag back but all in vain. It was only on 24.01.2018 that his lost bag was returned to him.  The complainant requested the OPs to give compensation but all in vain. Thus there being deficiency in service on the part of the OPs, hence the complaint.

9.      Upon notice, OPs failed to appear and were thus proceeded  against ex parte vide order dated 02.08.2018.

10.    After hearing counsel for the complainant, the learned District Commission, Fatehabadpartly allowed the complaint vide order dated 29.11.2018:-

“Therefore, we think it appropriate to direct the OPs for making a payment of Rs.50,000/- (Fifty Thousand only) in lumpsum. The OPs are further directed to comply the present order within 30 days from the date of receipt of copy of this order, otherwise the amount shall carry an interest at the rate of 9% per annum during the default period.”

11.    Feeling aggrieved therefrom, OPs-appellantshave preferred this appeal.

12.    It is not disputed that On 21.10.2017, complainant booked two return tickets with Kuwait Airways from Delhi to London and payment of both of these tickets Rs.35,691/- each was paid to the OPs through HDFC Bank. It is also not disputed that on 21.12.2017, complainant alongwith his father went abroad with OP flight No.384.  It is also not disputed that on return to India on 30.l12.2017 with flight No.383 of the OPs, the complainant did not find one of his checked bags. The complainant carrying expensive clothes and other daily use valuable items in his bags were mis placed.  Faced with this situation, he had to purchase track suit, undergarments and several other articles from Prince Super Store and Durga Super Store Fatehabad.    It is also not disputed that it was on 24.01.2018 that the lost bag was returned to the complainant.  Perusal of the file shows that the complainant enquired from the employees of the OPs but every time he did not get any satisfactory reply. The complainant has also placed on record bills, which proved that he did purchase various items of daily use from the market on account of loss of his articles. Since the complainant has received his lost bag after 24 days and the compensation allowed by the learned District Commission was legal and justified. The learned District Commission has rightly allowed the complaint partly as all the evidence led by complainant remained unchallenged also.

13.    Resultantly, the contentions raised on behalf of the present appellants stands rejected as having 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.25,000/- deposited at the time of filing the appeal be refunded to the respondent-complainant-AbrolAngad 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.)