Haryana

StateCommission

A/311/2018

SURAJ MAL - Complainant(s)

Versus

HYUNDAI MOTOR INDIA LTD. - Opp.Party(s)

JASDEV SINGH THIND

17 Apr 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                                               

                                                         First Appeal No.311 of 2018

                                                Date of Institution: 13.03.2018

                                                         Date of order: 17.04.2023

 

Suraj Mal, age 50 years S/o Chander Singh, R/o H.No.3, New Chander Lane, Hisar, Tehsil &Distt.Hisar.

…..Appellant

Versus

1. Hyundai Motors, North Regional, Office through its regional Manager, Unit No.C-113-114, 1^st Floor, Office suits, Ellante, Plot No.178-178A, Industrial and business Park, Phase 1, Chandigarh.
2. Hisar Hyundai, through its Manager, 11 KM stone, Delhi by pass road, Hisar.

…..Respondents

CORAM:    S.P.Sood, Judicial  Member

                  

Present:-    Mr.J.S.Thind, Advocate for theappellant.

                   Mr.Amrit Pal Singh, Advocate for the respondent  No.1.

                   None for the respondent No.2.

                                                ORDER

S P SOOD, JUDICIAL MEMBER:

          There is a delay of 95 days in filing the appeal.  Appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  seeking condonation of delay of  95 days alleging inter alia that the that  order was pronounced on 30.10.2017 and certified copy of the same was delivered on 08.11.2017.  It was further submitted that son of the appellant met with an accident, therefore appellant was unable to approach his counsel as he got busy in the said incident.The delay occurred in filing the appeal was neither intentional nor wilful but had occurred due to bonafide reasons.Therefore, delay of 95 days in filing of the present appeal may please be condoned.

2.         Arguments Heard. File perused.

3.         Learned counsel for the appellant vehemently argued that as per facts mentioned above, it is quite clear that delay in filing appeal is not intentional.    Further argued that son the appellant had met with an accident for which he could not consult his counsel on account of said incident. Due to the above said reasons, the appeal could not be filed, so the delay may be condoned. 

4.         This argument is not available.  A period of 30 days has been provided for filing an appeal as per the old C.P.Act,1986  against the order of the District Commission. 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 was “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.

5.                         The inordinate delay of 95 days cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

          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.”

          The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

                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.  RewaCoalfields  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.”

         

6.      Taking into consideration the pleas raised by appellant in the application for condonation of delay and settled principle of law, this Commission does not find it a fit case to condone delay of 95 days in filing of the appeal as the appellant has not placed any hospital record pertaining to his son. Hence application filed for condonation of delay  in appeal No.311 of 2018 is dismissed.  

7.      The brief facts of the case are that on 09.08.2014, the complainant purchased Hyundai Car Model Grand i10(d) from opposite party (OP) No.2.  On the first day, there was starting problem and abnormal engine vibration in it.  On 12.10.2015, he complained about this to OP No.2 and left the car with OP No.2 for attending to these faults/defects in the car and when the car was returned to him OP assured him that this problem will not occur again. However the problem still persisted so he again approached OP No.2 on 08.12.2015 for the same, and this time OPs replaced some parts and car was delivered back to him.  After some days, the same problem of starting of the car engine occurred and car could not be started and stopped working. On 25.01.2016, the complainant again approached to OP No.2 and after carrying out some repairs, again the vehicle was delivered back to him.  On 11.06.2016, the car was again with OP No.2 for repairs.  Infact complainant realized that the engine of the car was suffering from some manufacturing defect from the very beginning and was liable to be replaced with new engine as the car in question was still within warranty period of two years. He requested the Ops to replace the engine, but, to no avail.  Faced with this situation, he got issued a legal notice dated 13.06.2016 to the Ops, but, without any response. Thus there being deficiency in service on the part of the Ops, hence the complaint.

8.      Notice was issued to the Ops. The opposite parties appeared and filed separate written statements.  OP No.1 alleged  that vehicle was more than two years old and out of warranty. There was no manufacturing defect in the vehicle as it has covered mileage of 25145 KM’s in October 2016. The car was brought for first free service on 15.09.2014 at mileage of 1424 KM’s, second service on 20.08.2015 at mileage of 11591 KM’s.  The complaint with regard to this vehicle was reported on 12.10.2015 at a mileage of 13214 KM’s.  On 08.12.2015, the immobilizer unit was replaced and this was not a part of engine.  On 25.01.2016 general check up was carried out and finding it to be good and  completely road worthy it was delivered back to him. The alleged problem arose after second free service, which was duly rectified.  There was no manufacturing defect in the vehicle. All other allegations were also denied. Thus there was no deficiency in service on the part of the OP No.1.

9.      OP No.2 alleged that complainant purchased the car on 09.08.2014 and thereafter there was no complaint as such of any starting problem or that of abnormal engine vibration in the car. The complainant did not complain about any such problem at the time of  second service.It was only on 12.10.2015, that complainant for the first occasion disclosed the problem of starting to the service advisor of the dealer, it was found that filter cartridge which in routine is changed at the mileage 20,000 kms was required to be changed at the mileage of 13214 kms which clearly shows that some adulterous fuel was got filled in the vehicle, which caused the problem in injectors and its high pressure pump was also got repaired. Again same problem was got rectified by the OP. There was no manufacturing defect in the vehicle. The problem was only due to the adulterated fuel being used.  All other allegations were also denied by the OP No.2. As such there was no deficiency in service on the part of the OP No.2 and dismissal of the complaint as prayed for.

10.    After hearing both the parties, the learned District Commission, Hisarhas allowed the complaint partly vide order dated 30.10.2017. Relevant para is reproduced below:-

“Keeping in view the facts and circumstances the complaint is hereby partly allowed and the respondents are directed to pay Rs.49290/- to the complainant.  Respondents are also directed to pay Rs.15000/- as compensation and Rs.3000/- as litigation expenses.”

11.    Feeling aggrieved therefrom, appellant-complainant has preferred this appeal.

12.    This argument have been advanced by Sh.J.S.Thind, learned counsel for the appellant as well as Sh.Amrit Pal Singh,learned counsel for the respondent No.1. With their kind assistance entire record of the appealas well as that of original record of the District Commission, evidence led on behalf of  both the parties has also been properly perused and examined.

13.    It is not disputed that on 09.08.2014, complainant has purchased the vehicle in question.  It is also not disputed that the vehicle in question was giving complainant some starting problem.  It is also not disputed that the OP No.2 also  admitted that there wasstarting problem and vibration in the engine in this car.  It is not disputed that upon complaint by its owner, the vehicle was repaired free of costs by the Ops.  It is also admitted that the OP No.2 replaced the defective injectors of the said car alongwith metering unit, gear pump, S.kit, oil seal, shaft, the cost of which was Rs.68191/- including vat @ 13,125/- and  OPsimply charged a sum of Rs.2875/- on account of labour charges etc. It was only after keeping in view all these developments learned District Commission in its non wisdom has partly allowed this complaint and has awarded him a reasonable amount alongwith compensation and litigation charges. Moreover the cost of  all these spares which have been replaced by the company should also be not ignored. It was only the labour charges which were borne by appellant. Keeping in vie the totality of the circumstances the impugned order is fully justified Moreover as the Ops already repaired the vehicle by way of installation of new injectors. The learned District forum rightly allowed the complaint of the complainant. The learned District Forum had committed no illegality while passing the order dated 16.05.2018.  The appeal is also devoid of merits and stands dismissed.

14.    Application(s) pending, if any, stand disposed of in terms of the aforesaid order.

15.    A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

16.    File be consigned to record room.

 

17thApril, 2023                                                                                S. P. Sood                                                                                                                            Judicial Member                            

 

S.K

(Pvt. Secy.)