HON’BLE MR. SUDEB MITRA, PRESIDING MEMBER

Order No.: 08

Date : 06.12.2024     

Feeling aggrieved by and dissatisfied with the order dated 29.12.2023 passed in CC/167/2022 by the Ld. DCDRC, Purba Bardhaman by pronouncing which the Ld. DCDRC, Purba Bardhaman was pleased to dismiss the CC/167/2022 filed by the complainant of the said complaint case Ganga Yadav, for default of his not filing show cause before the Ld. Concerned DCDRC in response to the Ld. Commission’s assertion as to why that complaint case CC/167/2022 shall not be dismissed for default for his not remaining physically present on 13.12.2023, before the Ld. DCDRC in proceeding of CC/167/2022, the complainant of CC/167/2022, Ganga Yadav has preferred A/23/2024 on 13.03.2024 before the Ld. SCDRC praying for setting aside the impugned order dated 29.12.2023, passed in CC/167/2022 with further prayer for restoring the said CC/167/2022 to its original status to lend scope to the appellant/complainant Ganga Yadav to contest in that CC/167/2022.

    It is forthcoming from the contents of the instant petition filed by the appellant/appellant/complainant Ganga Yadav that he has filed the instant Petition (IA/42/2024 dated 16.03.2023) praying for condonation of delay in preferring the Appeal A/23/2024 dated 13.03.2024 since the said Appeal was preferred after the exhaustion of the statutorily stipulated period of time, fixed as per C.P. Act of 2019, for filing/preferring Appeal against final order/judgement of any complaint case passed by the Ld. DCDRC.

    By filing the instant petition (IA/42/2024), the applicant of this IA Ganga Yadav has contended he was unaware of the method/procedures of the proceedings in respect of CC/167/2022 and was not aware of the relevant directions of the Ld. DCDRC, Purba Bardhaman, passed on 13.12.2023 in connection with CC/167/2022, upon him, to show cause as to why the CC/167/2022 shall not be dismissed for default and had he been aware of it in time, he must have complied with the order/direction of the Ld. DCDRC and he could come to know about the existence of the relevant order besides the order dated 29.12.2023 after receiving the plain copy of the order of dismissal from the Ld. DCDRC sent on 12.12.2023.

    By filing the instant IA/42/2024 dated 16.03.2024, the Applicant/Petitioner Ganga Yadav has contended that there was gross miscommunication of the pertinent directions of the Ld. DCDRC, Purba Bardhaman and that was unintentional and there was bonafide mistake in proceeding with CC/167/2022 and in filing the A/42/2024 on time and the applicant has prayed for the positive consideration of his instant prayer to restore the CC/167/2022 for hearing on contest.

   The respondent side of this IA and Appeal were all duly summoned, out of total 6 of them, the Respondents No. 1 to 4 have resisted this instant IA of the Applicant/Appellant contending that since the case record of CC/167/2022 reflected categorically that the applicant/appellant, being the complainant of CC/167/2022 was not attending the proceeding of CC/167/2022 time and again, so the Ld. DCDRC was compelled to pass the order of dismissal of CC/167/2022 on 29.12.2023 appropriately and there remains no legally appreciable scope to set aside the said order dated 29.12.2023  passed in CC/167/2022, by the Ld. DCDRC, Purba Bardhaman.

Point for consideration

Now it is to be ascertained as to whether the instant IA/42/2024 filed by the appellant/applicant/complainant Ganga Yadav deserves to be entertained or not.

Decision with reasons

    This has been forthcoming from the available materials on record that in CC/167/2022 the complainant of said complaint case was remaining frequently absent in proceedings of CC/167/2022 filed by him against the OPs of CC/167/2022 and he had not complied with the direction of the Ld. DCDRC dated 15.09.2023 directing his personal appearance in CC/167/2022 on 13.12.2023 before the Ld. DCDRC, Purba Bardhaman and as on 13.12.2023 the complainant of CC/167/2022 had not attended the commission personally, as directed, the Ld. Commission was pleased to direct the complainant of CC/167/2022 to show cause by 29.12.2023 as to why the CC/167/2022 shall not be dismissed for default and since on 29.12.2023, the complainant had not filed Show Cause, so the Ld. DCDRC justifiably dismissed the CC/167/2022 dismissed for default.

    It is forthcoming from the contentions of the Applicant/Appellant Ganga Yadav that he tried to justify/rationalize the delay in preferring the Appeal (A/23/2024 dated 13.03.2024) for setting aside the impugned order of the Ld. DCDRC, Purba Bardhaman dated 29.12.2023 passed in CC/167/2022 on the ground that he had been sick and was under medical treatment that had prevented him from attending the proceedings of CC/167/2022 in December 2023.

    The Xerox Copies of the medical papers furnished from his end to indicate his absence from the proceedings of CC/167/2022 before the Ld. DCDRC, Purba Bardhaman, on medical ground are not appearing to be convincing enough to be considered rational ground to avoid filing of show cause, as directed by the Ld. DCDRC, Purba Bardhaman in CC/167/2022. Those Xerox Copies of medical papers could not show that he was remaining admitted in Hospital/Medical establishment owing to his illness either on 13.12.2023 or on 29.12.2023.

    This is forthcoming from the cited reference placed by the Ld. Counsel for the appellant that basing on the findings of the Hon’ble Supreme Court in the matter of Housing Board, Haryana the Hon’ble NCDRC was pleased to hold in connection with Rita Kesh – Appellant VS Biswanath Singh – Respondent in RP 3052 of 2017 directed on 07.05.2018 that period of limitation for filing Appeal/Revision shall start running from the date, on which the free copy of the certified order is communicated to the party as contemplated as per R 5 (10) of the W.B. Consumer Protection Rules.

Relying on this the Ld. Counsel for the Applicant/Petitioner that the certified orders dated 29.12.2023 of CC/167/2022 that had dismissed the CC/167/2022 for default against the complainant of CC/167/2022 i.e. the present Applicant of this IA Ganga Yadav was prepared on 06.02.2024 and thereafter the said order was communicated to the complainant of CC/167/2022. So, there was no delay in filing Appeal A/23/2024 dated 13.03.2024 since that was filed within 45 days from 06.02.2024. However, when the Applicant received that certified copy of order dated 29.12.2023 of CC/167/2022 what had he done with it remained unanswered by the Applicant side. Nothing significant could be elicited to refute this argument, either from the case record or from the submission of the respondent.   

   Having regard to the available materials on record, submissions of both sides, since substantial justice being paramount and pivotal, the technical consideration should not be given undue importance.

    Since this is forthcoming, at least prima facie, that the complainant/applicant Ganga Yadav is almost a layman and was dependent on his Ld. Counsel to proceed CC/167/2022 from his end, he may be given a scope to contest by reflecting his stand point in the instant Appeal (A/23/2024) filed from his end to assail the finding of the Ld. DCDRC, Purba Bardhaman, pronounced by its orders dated 29.12.2023, in CC/167/2022, against him.    

    Hence, it is

                             ORDERED

    That the Applicant/Appellant’s petition (IA/42/2024 dated 16.03.2024) praying for condonation of delay is his preferring A/23/2024 is allowed on contest but without cost and is thus disposed of.

    To 12.02.2025 is fixed for hearing A/23/2024, arising from the order dated 29.12.2023 passed in CC/167/2022 passed by the Ld. DCDRC, Purba Bardhaman, before this Commission of SCDRC, Asansol, Paschim Bardhaman, West Bengal.

    Both sides must come ready on the date fixed for hearing of this A/23/2024 before this Commission at Asansol.

The digitalized Xerox copy of CC/167/2022, so sent up by the Ld. Concnred DCDRC before this Commission be kept with this case record for reference.

    Inform all concerned. Free supply of cost free copy of this order in this IA be arranged and furnished to the contesting parties of A/23/2024 forthwith.

    Inform the concerned Ld. DCDRC, Purba Bardhaman, forthwith about the latest position of the CC/167/2022.