Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:

(1)                This appeal was lying unattended since it was filed in 2003.  After filing of the appeal on 12.02.2003 notice before admission was issued but thereafter, this matter was not prosecuted by the Appellant and it was lying unattended.  On 5^th July, 2011 as per policy of this Commission this appeal was placed before us for disposal.  Since this matter was from sine die list we directed office to issue notice to both the parties returnable on 11.08.2011.  On 11.08.2011 both the parties were absent but we had not received postal acknowledgement and therefore, for awaiting service the matter was adjourned to 12.10.2011 i.e. today.  Today also we have not received postal acknowledgement but, since notices were sent to both the parties by post on 04.08.2011, by now they must have received the notices.  Speed post letter reaches addressee within 3-4 days.  Therefore, we presume that both the parties must have received the notice but they are absent.  Hence, we have decided to dispose of this appeal on merit.

(2)                We perused the impugned order and the condonation of delay application.  In filing appeal there is delay of 248 days and therefore, an application was filed by the Appellant under section 05 of the Limitation Act.  In fact Application under section 05 as such under Limitation Act is not warranted in law.  Because, Section 24-A of the Consumer Protection has given power to the State Commission or National Commission to take cognizance of appeal after condoning if sufficient cause is there.  So application should have been moved under section 24-A of the Consumer Protection Act and not under section 05 of the Limitation Act.  That apart, we treat this as one filed under section 24-A of the Consumer Protection Act.

(3)                We perused the condonation of delay application.  Delay is of 8 months and 10 days.  This is a voluminous delay and it is not properly explained.  It is the fault on the part of the Appellant only that after receipt of execution notice under section 27 of the Consumer Protection Act from the District Forum he has filed this appeal.  So we are finding that the delay is not properly explained and no just and sufficient cause has been given in the condonation of delay application and affidavit and therefore, we are not inclined to condone the delay and hence, we have decided to reject the Misc.Application No.287/2003 and therefore, appeal does not survive for consideration. 

(4)                However, by way of abundant precaution we have gone into the merit of the case.  Complainant Dr.Pradeep T. Shah  had sent through Opponent Nos.1 and 2 one hard disk to Mumbai.  He paid `45/- as charges to the Courier Agency.  But said hard disk was not delivered to the addressee and therefore, he had made correspondence with the Courier Company.  He did not get back hard disk nor any letter showing that they had effected delivery to the addressee.  In the circumstances, the District Forum held that there was deficiency in service on the part of the Courier Agency and directed Appellant to pay `22,000/- with interest @12% per annum from 29.01.2001 and also directed to pay `500/- as costs of the proceeding.  Said order, in our view, even otherwise is appearing to be just and proper and even on merit Appellant has got no case.  Hence, we pass the following order:

O  R  D  E  R

         (i)              Appeal is rejected as barred by limitation and even on merit the Appellant has no case.

       (ii)              Inform the parties accordingly.

Pronounced on 12^th October, 2011.