(Delivered on 19/12/2018)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         We have heard advocate Mr. Aditya Joshi holding for advocate Mr. Sachin Jaiswal  appearing for the appellant and advocate Mr. Vora appearing for the respondent  No. 1 on the application  made by the appellant  for condonation of delay  of 82 days that occurred in filing  of the appeal.  We have also perused  the record and proceedings of the appeal. The respondent  No. 2 is already  proceeded   exparte.

2.         The learned advocate of the appellant  explained  the delay on the lines  of  the submission made in the said application. The explanation given  in the application  in short is that the copy of the impugned order dated 29/09/2016 was received  by the appellant  from the Forum below on 29/10/2016. The said copy was forwarded by  the appellant’s  advocate  to the  department  along with  his opinion  for  filing of appeal.  The office of the  appellant forwarded the said  opinion  along with  copy of the impugned order  to the  Head Office at Jaipur for  necessary guidance. The concerned  officer of the appellant  company after  consultation  of the Senior  Executive  Member  decided to  file  the appeal before  this Commission.  The said decision  was  communicated  to the  Nagpur /local office  of the appellant.  The Nagpur office requested  the counsel  to take  appropriate steps in  the matter  for filing  of appeal.  Thereafter appeal came to be filed. In that  process  the delay of 82 days  has been occurred.

3.         The learned advocate of the  appellant   submitted that  as the delay is  satisfactorily explained  as above,  it may be condoned. He also  relied  on the decision of the Hon’ble  National Commission in the case of Dileep Kumar Vs. Jaipur Development  Authority , in Revision Petition No. 3040/2016 decided by the  Hon’ble National Commission  as per order dated 27/04/2017.

            In aforesaid  case, the delay of 77 days that occurred in filing of appeal before the State Commission was condoned by the State Commission, Rajasthan. Thereafter, feeling  aggrieved  by that  condonation  of delay, the Revision  Petition  No. 3040/2016 was filed  before the Hon’ble National  Commission.The Hon’ble National Commission in that revision petition observed as follows.

            “It is  clear that the  State Commission is well within  its rights to condone the delay if it is satisfied.  From the observations of the State Commission mentioned above it is clear that the State Commission was satisfied in the interest of justice to condone the delay. As per  guidelines given by the  Hon’ble  Supreme Court in the case  of  Esha Bhattacharjee Vs.  Managing Committee of Raghunathpur Nafar Academy and others and judgment of Hon’ble  Supreme Court in case of N. Balakrishnan Vs. M. Krishnamurthy, the condonation of delay may be allowed on payment of cost  to the other party. In both  the cases cited by the learned counsel there are inordinate  delays of 233 days  and more than 1000 days, whereas  in the instant case the delay is only of 77 days. The Forum has rightly  condoned the delay in the interest of justice.  Even  otherwise  also, by allowing the application  for condonation of delay, the State Commission  has decided to proceed with the appeals and expectedly these appeals  will  be decided on merits and both parties will  get the opportunity  to put  forward their cases before  the State Commission  for adjudication of the appeals.  Hence, no prejudice is caused  to the petitioners  if the  appeals are decided on merit by the State Commission.”

            Thus, learned advocate of the appellant submitted that the application may be granted by applying aforesaid observations made by the Hon’ble  National Commission.

4.         On the other hand, the learned advocate  Mr. Vora appearing for the respondent No. 1 filed  reply to the said application and  strongly  apposed  the same.  His submission  in brief is that  no date wise explanation  is given by the appellant    and stereo type  grounds are raised in each of the appeal by the appellant  without  substance and without  filing  any documents. He also relied  on the decisions  of this Commission  in two cases. He submitted that  in those  cases  also identical grounds  were raised  by the  petitioner  for condonation of delay but this Commission  after hearing both the parties, rejected  the applications  made  in  both cases by giving  cogent reasons. He submitted that  in the instant case  also  no cogent  and satisfactorily  explanation for  delay is given  and  no document is  filed  to show that  the impugned order with opinion  was sent  from  one office to another  office for approval.  There is actual delay of 99 days that  occurred  in filing  of appeal. He also submitted  that   signatory  of the application is not  an authorized person  and he in  its affidavit  has not  stated that  he is authorized person.   Advocate Mr. Vora further  submitted that  appellant has not filed any  power of attorney or resolution of the Board of Directors  to show that  the appellant  has duly authorized  the aforesaid signatory  for filing  of the appeal. Hence,  on these  grounds  he requested  that  application  made for  condonation  of delay  may be rejected.

5.         The learned advocate Mr. Vora  relied on the following two decisions of this Commission.

i.          Iffco -Tokio General  Insurance  Co. Ltd. Vs. Bashir Khan Ajij Khan in First Appeal No. FA/12/467 decided by this Commission on 28/09/2016. In that case there was delay of 110 days that occurred in filing of appeal.  It is observed by this Commission that no such long  delay can be occurred  simply for  seeking  administrative approval of higher authority  for filing  of appeal.  Hence, this Commission   rejected the application made for condonation of delay.

ii.          Shriram General Insurance Co. Ltd. Vs. Gurlochansingh Harcharansingh Ghoitra in First Appeal No. A/17/72, decided by this Commission as per order dated 24/01/2018. In that appeal there was inordinate delay of 110 days for filing of an appeal.  It is observed  by this Commission  that the said delay was occurred  only because  of inaction  and gross negligence  on the part of the appellant in taking  immediate steps required for filing of appeal. It is also observed by this Commission that if such a long delay is condoned without sufficient explanation, then it would defeat the very object of expeditious disposal of the proceeding under the Consumer Protection Act, 1986. Hence, this Commission rejected the application made for condonation of delay.

6.         It is seen that  the copy of the impugned order was received by the appellant on 29/10/2016. Therefore, the appeal ought to have been  filed on or before 28/11/2016.  But appeal was filed on 08/03/2017. Thus there is actual delay of 99 days  that occurred in filing of appeal.

7.         No date wise explanation of the said delay  of 99 days  is given in the  application.  It is not stated  in this application   as  to on which date the copy of the impugned order was forwarded   by advocate of the appellant  to the local  office of the appellant  and  on which  date the  local  office of the appellant forwarded  the  copy of the impugned order along with opinion of advocate  to the  Head Office of  the appellant  for necessary guidance. It is also not  stated in this application   as to on which date  the  Senior Executive Member  decided  to file the appeal and  on which date said   decision was communicated to   Nagpur Office of appellant  and on which date  the counsel of Nagpur  was  instructed by appellant  for filing of appeal. Moreover, no document   is filed  in support  of the application  about  sending  copy of the impugned order  to the Head Office and about  decision taken  by the Head Office for the purpose of filing of appeal.  Therefore, it is very  difficult to accept  that  actually any such steps  were taken  by the appellant  before filing of appeal. Even if it is assumed that said steps  were  taken for  purpose of filing of appeal, then also we find that  as no  such  long delay of 99 days can occur for taking  such steps. Hence,  the explanation given  as above  cannot be  said  to be satisfactorily or convincing,  for the  purpose  of condonation of delay.

8.         We also  find that  the aforesaid  decisions of the Hon’ble National Commission as relied   by the learned advocate of the appellant  is not applicable to the facts and  circumstances of the present case.  In that case the delay of 77 days  only had occurred  in filing  of appeal before the State Commission  and it was condoned  for the reasons mentioned  in the said decision.  However, in the instant case  there is delay of 99 days  and  no  satisfactorily explanation  is given by the appellant  for the said delay  as discussed  above. Thus,  the facts and circumstances of the present case are totally different  from the facts and circumstances of  the said  case.  Hence,  the  said  decision relied  on the learned advocate of the respondent No. 1 is applicable to the present case. 

9.         We further  find that  if such a long  delay of 99 that  occurred  in filing of appeal  is condoned without  any satisfactorily explanation  then it will   defeat the very object  of  expeditious disposal of  appeal  filed under  the Consumer Protection Act, 1986.  Thus, we  are of the view  that  the  99 days delay has been occurred simply because   of  total inaction  and gross negligence on the part of the appellant  in taking  prompt and diligent  steps. Hence,  the said  delay cannot be condoned. Accordingly, the following order is passed.

ORDER

i.          The application made for condonation  of delay is rejected.

ii.          Appeal is dismissed  as time barred.

iii.         No order  as to cost in appeal.

iv.        Copy of order be  furnished  to both  parties,  free of cost.