Delhi

North

CC/262/2024

YOGESH KUMAR - Complainant(s)

Versus

DAVA INDIA PHARMACY STORE - Opp.Party(s)

09 Apr 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.262/2024

In the matter of

Sh. Yogesh K Kumar

Advocate

113, PS Rathi Block,

Tis Hazari Courts, Delhi-110054                 …      Complainant

 

Vs.

Mr. Sumit

Dava India Pharmacy Store,

E-265, E-Block, Tagour Garden Extension,

New Delhi-110027                                               …      Opposite Party No.1

 

Dava India Corporate Office-1,

Near Batliboi,

Unity Industrial Estate, Pandesara, Udhna,

Surat, Gujarat-394310                                 …      Opposite Party No.2

 

Dava India Generic Pharmacy

(A brand of Zota Health Care Limited)

Zota House-2/896,

Hira Modi Street Sagrampura,

Surat, Gujarat-395002                                 …      Opposite Party No.3

 

 

 

ORDER

09/04/2024

Present:       None

(Divya Jyoti Jaipuriar)

1. We have heard the arguments of Complainant in person yesterday on the condonation of delay application as well as on merits of the complaint. We have also perused the records placed by the Complainant in this complaint.
2. At the onset, it is recorded that the Complainant herein is an Advocate practicing in Delhi, primarily in Tis Hazari Court Complex. He has annexed his identity card issued by Delhi Bar Association and also annexed the practice certificate issued by Delhi Bar Association.

MA No.  36 of 2024: Condonation of Delay Application

3. This application has been filed along with the complaint seeking condonation of delay in filing this compliant. Although the Complainant has not mentioned the exact period of delay that he seeks condonation for, but in paragraph 3 of the application, he has mentioned that there is a delay of more than six months in filing this complaint.
4. In the facts of the complaint, the first cause of action has arisen on 28.11.2020. As the said date was during Covid-19 pandemic, in view of the orders passed by Hon’ble Supreme Court, the clock of limitation was stopped. Subsequently, by its order dated 10.01.2022  in Re: Cognizance of extension of limitation [(2022) 3 SCC 117], Hon’ble Supreme Court has started the clock of limitation in terms of following order:

“5. Taking into consideration the arguments advanced by the learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of MA No. 21 of 2022 with the following directions:

5.1. The order dated 23-3-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801] is restored and in continuation of the subsequent orders dated 8-3-2021 [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452 : (2021) 3 SCC (Civ) 40 : (2021) 2 SCC (Cri) 615 : (2021) 2 SCC (L&S) 50] , 27-4-2021 [Cognizance for Extension of Limitation, In re, (2021) 17 SCC 231 : 2021 SCC OnLine SC 373] and 23-9-2021 [Cognizance for Extension of Limitation, In re, 2021 SCC OnLine SC 947] , it is directed that the period from 15-3-2020 till 28-2-2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.

5.2. Consequently, the balance period of limitation remaining as on 3-10-2021, if any, shall become available with effect from 1-3-2022.

5.3. In cases where the limitation would have expired during the period between 15-3-2020 till 28-2-2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 1-3-2022. In the event the actual balance period of limitation remaining, with effect from 1-3-2022 is greater than 90 days, that longer period shall apply.

5.4. It is further clarified that the period from 15-3-2020 till 28-2-2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29-A of the Arbitration and Conciliation Act, 1996, Section 12-A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.”

5. In accordance with the above directions, Hon’ble National Commission has also issued Office Order No. 7 dated 14.01.2022 extending the limitation periods under the provisions of CPA, 1986 as well as under CPA, 2019 following the same principals as laid down by Hon’ble Supreme Court.
6. In view the above judgment of Hon’ble Supreme Court and also in view of the Office Order issued by Hon’ble National Commission, the limitation clock in case of the Complainant started only on 01.03.2022. Hence, the limitation of two years in view of Section 69 of the CPA, 2019 expired on 29.02.2024. The instant complaint has been filed only on 19.03.2024, i.e. with a delay of 19 days.
7. In the application, the Complainant has stated that he was suffering from Covid-19 and the Consumer Commissions were also not functioning during Covid-19 pandemic period, the delay in filing the complaint was caused. The reasons so given by the Complainant is not sufficient. The medical report filed by the Complainant indicates that the he was suffering from Covid- 19 in the month of May 2021. The period said time, when the Complainant was suffering from Covid-19, has already been excluded from calculation of limitation period. Hence the Complainant suffering from Covid-19 cannot explain the delay since 29.02.2024.
8. Further, it indeed a fact that during Covid-19 pandemic, this Commission was not functioning normally. However this Commission is functioning normally and all routine works of this Commission are being performed since the date which is much prior to the date when the clock of limitation again stated to run. Hence non-functioning of the Commission during Covid-19 pandemic is also not a valid reason explaining the delay in filing of this complaint.
9. The accompanying complaint should have been filed on or before 29.02.2024 without any delay. As the accompanying complaint has been filed on 09.03.2024, the Complainant was required to explain the reasons of the delay after the said date. There is no averment in the application or document on record explaining the reasons of delay since 29.02.2024, we are not able to ascertain actual reasons for delay in filing of this complaint.
10. Hon’ble Supreme Court, in the matter of State Bank of India vs B S Agriculture (I) [(2009) 5 SCC 121], has held that Consumer Forum should deal with the merit of the case only if the complaint is filed within the limitation period or if the Complainant has explained the cause of delay. In such case, the Consumer Forum is required to pass a reasoned order on condonation of delay application.
11. Further, in the matter of Kandimalla Raghavaiah Vs. National Insurance Company Ltd. [(2009) 7 SCC 768], Hon’ble Supreme Court has further held that the complaint is liable to be dismissed, if the delay is not duly explained.
12. In the case in hand, as we have observed earlier, the Complainant has not explained the reasons explaining the delay in filing this complaint calculated from 01.03.2024. Hence, while following the principles laid down by Hon’ble Supreme Court in the above judgments, we cannot allow this application. Accordingly, the application seeking condonation of delay in filing the complaint is dismissed.

CC No. 262/2024

13. In view of the fact that the application seeking condonation of delay is already dismissed, the complaint is also liable to be dismissed on the ground of delay. However, we have examined the complaint on merits as well. The main case of the Complainant herein is that the OP-1 herein, which franchisee pharmacy store of M/s Dava India Generic Pharmacy (A brand of Zota Healthcare Limited) (OP-2 and OP-3 herein) has charged Rs. 21/- in excess for the medicines that the Complainant purchased on 28.11.2020 and has allegedly refused to refund the said amount. However, while going through the complaint, we noticed following relief claimed by the Complainant herein:

“It is most respectfully prayed that kindly consider this complaint in light of larger public interest, as the Guidelines and Directions of Hon’ble Supreme Court of India along with National Consumer Dispute Redressal Commission Order. (copy annexed)

It is therefore, most respectfully prayed that the respondents may kindly be directed:-

(a)To pay a sum of Rs.5,00,000/- as compensation and losses of complainant in term of deficiency in services, financial cheating fabrication, manipulation, mental harassment, disrespectful behaviour, etc.

(b)To pay the cost of the present litigation, to the complainant.

Any other and further relief which the Hon’ble court may deem fit and proper in present facts and circumstances, as mention above, in the interest of justice.”

14. Firstly, the Complainant has filed this complaint in “larger public interest”, but has failed to show that OPs herein is deficient in providing service to everyone/ public in general. The averment of the Complainant is completely speculative, which cannot be basis for considering the “public interest” aspect. Further, Consumer Commission is required to address the consumer disputes involving individual consumers or group of consumers having similar grievance. In the case in hand, there is just one consumer, who cannot be said to be representing a group of consumers having similar grievance. Further, the incident so alleged in this complaint is singular, which cannot be generalised and stated to by in “larger public interest” by any stretch of imagination.
15. Secondly, although the Complainant alleges that OP-1 has charged excess of Rs. 21/-, but he has not sought refund of the said amount in the complaint. He has only sought a sum of Rs. 5,00,000/- on account of compensation and loss to the complainant in terms of term of deficiency in services, financial cheating fabrication, manipulation, mental harassment, disrespectful behaviour, etc; and litigation expenses.
16. On the aspect of litigation expenses, Complainant has not filed any document to show that he has incurred any cost for filing this complaint. He has also not justified his litigation expenses by filing any payment receipts for his payments to any of his lawyers, if any.
17. For alleged compensation and loss to the complainant in terms of term of deficiency in services, financial cheating fabrication, manipulation, mental harassment, disrespectful behaviour, etc, there are no specific averments or proof of exact injury or harm inflicted upon the Complainant. The allegation of harm and mental agony is very vague and not specific. It is a settled law that the Complainant filed under CPA 2019, is meant for saving consumer from being exploited and it is not meant for windfall or making purchaser millionaire overnight. CPA, 2019 is a welfare registration and is not meant to be a tool to wrong gains. The compensation sought by the Complainant is dis-appropriately high and the Complainant has not given any proper justification for the same. In our opinion, prayer for high compensation and cost without proper justification by the Complainant herein is not correct and is to be discouraged. For this, reliance is placed on the judgment of Hon'ble National Commission in the matter of Dr. Uttam Kumar Samanta vs. Vodafone East Limited [FA 847/2017 decided on 05.10.2018]. However, considering the noble profession, the Complainant is carrying; we are refraining from passing any adverse order on this aspect against the Complainant.
18. For the reasons explained above, we also do not find any merit in the case and the complaint is liable to be dismissed even on merits.
19. Accordingly, the complaint is dismissed on both grounds- (i) delay in filing the complaint, which has not been properly explained and (ii) complaint being devoid of merit. No costs.
20. Office is directed to supply the copy of this order to the parties as per rules. Office is also directed to return all original documents filed by the Complainant, if any, after keeping copies of the same in the record. Thereafter, file be consigned to the record room.

 

 

 

 

___________________________

Divya Jyoti Jaipuriar, President

 

 

 

___________________________

Ashwani Kumar Mehta, Member

 

 

 

___________________________

Harpreet Kaur Charya, Member