STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Whirlpool of India Limited (Corporate Office), plot No.40, Sector 44, Gurgaon (Haryana) 1222002 (through its Managing Director)

……Appellant/Opposite Party No.3

V e r s u s

B.S. Cheema, House No.2004, Phase VII, Mohali, (Punjab) - 160062

…......Respondent/complainant

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:    JUSTICE SHAM SUNDER (Retd.), PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

Argued by:  Ms. Geeta Gulati, Advocate for the applicant/appellant.

PER  JUSTICE SHAM SUNDER (Retd.), PRESIDENT

1.             This appeal is directed against the order dated 20.01.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, and directed the Opposite Parties, as under:-

“In view of the above findings, this complaint is allowed and the OPs are directed as under: -

(i) to refund Rs.28,000/- to the complainant being the cost of the A.C as per Bill (Annexure B), subject to the condition that the complainant shall return the A.C. in question  along with its Stablizer as mentioned in the Bill;

(ii)to pay an amount of Rs.5,000/- as compensation to the complainant for suffering mental agony and harassment due to deficiency in service.

(iii)to pay an amount of Rs.7,000/- to the complainant as costs of litigation.

This order be complied with by the OPs, join.0tly and severally, within 30 days from the date of receipt of its certified copy, failing which OPs shall be liable to pay Rs.33,000/- i.e. [Rs.28,000 + Rs.5,000] along with interest @18% per annum from the date of filing the present complaint i.e.14.11.2011 till actual payment besides payment of Rs.7,000/- as costs of litigation”.

2.             The   facts,   in   brief,   are   that       the complainant purchased a Split Air Conditioner (Aviator Model of Whirlpool), with a unique feature known as “Around Your Function”, from Opposite Party No.1, on 23.08.2011, for a sum of Rs.28,000/- vide bill Annexure B. At the time of purchase of the said Air Conditioner, the complainant was told that it had a unique feature of deflecting the cool air, to any corner of the room, as per the choice of the user. The Air Conditioner was installed in his house on 24.08.2011. At the time of demonstration, it was observed that the unique feature “Around Your Function”, was not functioning. The complainant, called upon Opposite Party No.1, and informed that the feature, for which the said Air Conditioner was purchased by him, was not functioning, but he did not get any satisfactory reply. The complainant asked Opposite Party No.1, to take back the Air Conditioner, and refund the amount paid by him, but to no avail. Thereafter, the complainant contacted the Opposite Parties, a number of times, for redressal of his   grievance,   but   to   no    avail. It was stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence 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.

3.             The Opposite Parties, were duly served, but no authorized representative, put in appearance, on their behalf, as a result whereof, they were proceeded against exparte, vide order dated 30.12.2011.

4.             The complainant led evidence, in support of his case.

5.             After hearing the complainant, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

6.             Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.3.

7.             Alongwith the appeal, an application for condonation of delay of 57 days (as per the applicant/appellant) and 45 days (as per the office report), in filing the same (appeal), has been moved.  The grounds, set up in the application, are to the effect, that the delay occurred, as the complaint was received late, by the Legal Department of the applicant/appellant, and before the Counsel could have been appointed,  by the applicant/appellant, it was proceeded against exparte,  and the order dated 21.01.2012, was passed. It was stated that due to administrative delay, 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 57 days (as per the applicant/appellant) and 45 days (as per the office report), 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.         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 its control, that it 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 grounds set up, by the applicant/appellant, in the application, for the condonation of delay, do not seem to be bonafide. Nothing is mentioned, in the application, as to when copy of the complaint was received by Opposite Party No.3. There is nothing, in the application, as to when that copy of the complaint was sent to the Counsel. The averments contained in the application are only vague and indefinite. The delay of 57 days (as per the applicants/appellants) and 45 days (as per the office report), which is around two times, more than  the normal period of filing an appeal U/s 15 of the Act, was on account of  the complete inaction, and lack of bonafides, attributable to  the applicant/appellant.  The cause, set up by the applicant/appellant, in the application, for condonation of delay, could not be said to be such, as was beyond its control, which prevented it, from filing the appeal, in time. Therefore, it could not be said that the delay, in filing the appeal, was, on account of the circumstances, beyond the control of the applicant/appellant. The mere fact that the concerned Officer/Official, of Administrative Section, of the applicant/appellant, acted in a leisure mood, without envisaging the consequences, which could ensue, on account of non-filing of the appeal, within the stipulated period, provided under Section 15 of the Act, does not mean that it could be shown undue indulgence. The applicant/appellant, therefore, failed to prove, any sufficient cause, in filing the appeal, after a delay of 57 days. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 57 days cannot be condoned. The application is, thus, liable to be dismissed.

12.         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.”

 13.                    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 Counsel for the applicant/appellant, to take immediate steps, by filing the appeal, within the stipulated period, as envisaged under Section 15 of the Act.  It was, thus, a case of complete lack of bonafides and inaction, on the part of Opposite Party No.3 (now 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.

14.           Coming to the main appeal, it may be stated here, that there is, no dispute, about the factum, that the Air Conditioner, in question, was purchased by the complainant, from Opposite Party No.1, vide invoice Annexure B, in the sum of Rs.28,000/-, on 23.08.2011 Alongwith the invoice, the brochure/pamphlet, Annexure A, was also supplied to the complainant. Since the feature i.e. “Around Your Function”, of the Air Conditioner was mentioned in this brochure, it was on account of this reason, that the Air Conditioner was purchased by the complainant, from Opposite Party No.1. However, when the same was installed, in the house of the complainant, the said feature was not functioning. The complainant was also told at the time of purchase of the Air Conditioner that it had a unique feature of deflecting the cool air to any corner of the room, as per his choice. The Opposite Parties, by providing the brochure/pamphlet, wherein, it was clearly mentioned that the Air Conditioner had a unique feature of “Around Your Function”, though it was not actually having the same, when the same was installed, indulged into unfair trade practice. Not only this, by not refunding the amount, when demanded by the complainant, on account of the reason, that the feature, which was disclosed, in the brochure, and told to him, at the time of purchase of Air Conditioner, was not in existence, the Opposite Parties, were also deficient, in rendering service. The District Forum was also right, in holding so.

15.           No doubt, the Counsel for the appellant, submitted that the complainant was informed by the Opposite Parties, at the time of purchase of the Air Conditioner, that the said model was not having the feature of “Around Your Function”. She further submitted that the brochures are printed in bulk, by the Company, and are the standard one, wherein, the Company/appellant, reserves its right to change the specifications, at any point of time. The Company may be having its option to change the features, at any point of time, but,  the question, as to whether, this feature existed in the model of the Air Conditioner, which was purchased by the complainant, or not, is required to be determined. Once, the brochure/pamphlet Annexure A, was supplied to the complainant, at the time of sale of the Air Conditioner, and it clearly depicted the feature of “Around Your Function”,  and he was also specifically told by the representative of Opposite Party No.1, with regard to the existence of this feature, there was no reason, on the part of the complainant, not to believe such a representation.  In case, the Company had changed this feature, or the model of the Air Conditioner, which was purchased by the complainant, did not carry this feature, then Annexure A Brochure/pamphlet, was not required to be supplied to him, to mislead him. Under these circumstances, the submission of the Counsel for the appellant, that the feature of “Around Your Function”, did not exist, in the Air Conditioner, which was purchased by the complainant, and he was told about the same, does not carry any substance. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail, and the same stands rejected.

16.           No other point, was urged, by the Counsel for the appellant.

17.           The order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

18.           For the reasons recorded above, the application for condonation of delay, is dismissed. Consequently, the appeal being barred by time, and devoid of merit, is also dismissed, at the preliminary stage, with no order, as to costs. The order of the District Forum is upheld.

19.           Certified Copies of this order be sent to the parties, free of charge.

20.           The file be consigned to Record Room, after completion

Pronounced.

June 1, 2012

Sd/-

[JUSTICE SHAM SUNDER (Retd.]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg