Haryana

StateCommission

A/549/2015

RAJEEV GULATI - Complainant(s)

Versus

FORD INDIA - Opp.Party(s)

D.K.JANGRA

14 Jul 2015

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                First appeal No.549 of 2015

Date of the Institution: 26.06.2015

Date of Decision: 14.07.2015

 

Rajeev Gulati, proprietor of M/s Ganpati Industrial Traders, 220, Deep Plaza Civil Lines, Gurgaon.

…..Appellant

Versus

 

1.      M/s Ford India, Tower A, Ground Floor, Unitech Cyber Park, Sector 39, Gurgaon through its Manager.

2.      Shri Ashok Sachdev, Managing Director, Harpreet ford, plot No.34, Sector 18, Maruti Industrial Area, Gurgaon.

3.      ICICI Lombard General Insurance Company Ltd., S-13, Second floor, Uphaar Cinema Complex, New Delhi.

                                                                             .….Respondents

 

CORAM:    Mr.R.K.Bishnoi, Presiding Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mr.D.K.Jangra, Advocate counsel for the appellant.

 

O R D E R

R.K.Bishnoi, PRESIDING JUDICIAL MEMBER:

 

          Appellant has filed this application  under section 5 of Limitation Act, 1963 (In short “Act”)  for condonation of delay of 197 days in filing the appeal.  Due to back problem his father was confined to bed since 09.11.2014.  As being son he was to look after him as well as his business. He was also having stone problem since the month of February 2015 and could not pay attention to the case. Advocate appearing on his behalf at District forum did not inform him about this case. During discussion with the present counsel it was told that one case was also pending at Gurgaon. When he enquired about the complaint it came to the notice that same was decided on 11.11.2014.  He obtained certified copy of impugned order on 13.05.2015 and sent to the present counsel for filing the appeal. Due to these reasons there was delay of 197 days and the same may be condoned.

2.      Arguments heard.  File perused.

3.      Learned counsel for the appellant-complainant vehemently argued that father of complainant was having back problem since 09.11.2014 and was advised absolute bed rest, as mentioned in certificate dated 15.11.2014 issued by Gitanjli Hospital.  Complainant was also suffering from stone problem since 20 years. Due to these reasons he could not enquire about the fate of the complaint.  Result of the complaint was brought to his notice, as mentioned above.  Delay is not intentional and may be condoned.

4.      This argument is devoid of any force. Except certificate dated 15.11.2014, there is no document on the file showing that father of complainant was having any problem and was under treatment of Sh.Subhash Yadav.    The certificate is also not having admission note etc. Complainant has not shown any treatment record.
Same is the situation of certificate dated 13.02.2015 issued in the name of complainant.  It is also not having any serial number etc. such certificates can be obtained at any time.

5.      More so the case was decided on 11.11.2014 and it can not be presumed that he was unable to inquire about fate of the case till the month of May 2015.  The explanation about delay is not plausible.

 

6.      A period of 30 days has been provided for filing an appeal against the order of the District Forum. 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.

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.”

          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.  Rewa Coalfields  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.”

         

    Hon’ble Supreme Court in  Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 held as under;

“We have considered   the respective    submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same   time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”       

    In 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority, Hon’ble Apex Court observed as under:

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

7.      On merits also case is not sound. It was alleged by complainant that he purchased car from O.Ps. on 05.04.2006.  After few days it started giving trouble such as noise in the engine, shocker problem etc.  He visited workshop of O.P.No.2 to remove the defects. He also brought defects to the notice of O.P.No.1.  On 14.01.2008  the vehicle broke down and did not start despite lots of efforts. When vehicle was shifted from that place, there was no sign or mark on boot space or roof except touching on front bumper.  When he went to the workshop of O.P.No.2 it was found that pillars were also painted.  On enquiry it was stated that  vehicle met with an accident and that is why the same was repainted.  There was manufacturing defect in the vehicle and required replacing.  O.Ps. be directed to replace the vehicle or pay Rs.Seven lacs as of damages, as claimed in relief clause.

8.      As O.P.No.1 was proceeded against ex parte, only O.P.Nos. 2 and 3 filed the reply.  It was alleged by O.P. No.2 that the vehicle was repaired on 25.11.2007 due to damage in accident, as mentioned in the reply.  There is no mechanical report to show that there was any manufacturing defect in the vehicle.  He had concealed the true facts from the Forum.  He was not covered by the definition of Section 2 (1) d of Consumer Protection Act, 1986 (In short “Consumer Act”).  The defect pointed out during the warranty period were rectified, as mentioned in the job card.  On 10.09.2006 and subsequently on 25.11.2007 vehicle met with an accident and repaired, as mentioned in the reply.  Complainant also lodged claim with the concerned insurance company under cash less agreement.  As per service history there was no defect in the vehicle till it covered 54,103 kms. The amount of compensation sought by the complainant was on higher side.  Rather it was entitled to recovery Rs.2500/- per day from complainant against garage charges.

9.      In addition thereto O.P.No.3 alleged that it was not having any concern with the claim lodged by the complainant.  It had only insured the vehicle.  He was not covered by the definition of consumer because the vehicle was registered for commercial commodity.  Objections about maintainability of complaint etc. were also raised and requested to dismiss the complaint.

10.    After hearing both the parties, learned District Consumer Disputes Redressal Forum, Gurgaon (In short “District Forum”). Dismissed the complaint on the ground that complainant is not covered by the definition of consumer.

11.    Arguments heard.  File perused.

12.      As per averments raised by respondent No.2, it is clear that the vehicle was purchased in the name of M/s Ganpati Industrial Traders, not in the name of Complainant  i.e. Rajeev Gulati.  This fact is also clear from the estimate produced on the appeal file.  It shows that the vehicle was not purchased  by Rajeev Gulati in a personal capacity but in the name of  Ganpati Industrial Traders which is a business concern. Therefore, before proceeding further it has to be seen whether complaint could be entertained as vehicle was purchased for commercial purpose. If any vehicle/machinery is purchase for commercial purposes after the amendment of section 2(1) (d)  of the Act then the purchaser  cannot be considered as a consumer.  This point was dealt with by Hon’ble National Commission in General Motors India Pvt. Ltd. Vs. G.S.Fertilizers (P) Ltd.,  and India Automobiles (1960) Ltd. Vs. G.S.Fertilizers, decided on 07.02.2013 in first appeal No.723 of 2006 and 736 of 2006.  Relevant portion of Para No.9  of the above said judgement is reproduced as under:-

“We note that in his complaint before the State Commission the Respondent-complainant had clearly stated that the vehicle was purchased for the use of its Managing Director.  We agree with appellants’ contention that this clearly amounts to its purchase for a ‘commercial purpose’ since the Managing director of a private limited company would obviously not use this vehicle for self-employment to earn his livelihood but for ‘commercial purposes’ as a perk of his office.”

          After the opinion of Hon’ble National commission in the aforesaid case laws, it is clear that if anyone has purchased vehicle for commercial purpose such person cannot claim himself to be consumer.  In the present case vehicle was purchased in the name of M/s Ganpati Industrial Traders and vehicle was to be used for this company.  It is no where alleged by complainant that he purchased this vehicle for earning his livelihood. When he has failed to prove this fact he cannot claim himself to be consumer.

13.    Complainant cannot take any benefit from case laws cited by his counsel captioned as Govindbhai Shankarlal & Co. Vs. Mahindra and Mahindra, 1995 (1) C.P.J.207 of Hon’ble Gujarat State Commission because that matter was before the amendment in the year 2003.  In that case the vehicle was purchased in the year 1990.  Amended provision is no where discussed therein as in the aforesaid case law. 

14.    In view of the above discussion when the case is also not good on merits and explanation of delay is also not plausible then delay in filing appeal cannot be condoned. Hence application filed for condonation of delay as well as appeal are hereby dismissed.

 

July 14th, 2015        Urvashi Agnihotri                           R.K.Bishnoi,                                                                       Member                                             Judicial Member                                                     Addl. Bench                                     Addl.Bench