Haryana

StateCommission

A/867/2019

NISHI GUPTA - Complainant(s)

Versus

HYUNDAI MOTORS INDIA LTD. ENGINEERING PVT. LTD. AND ANOTHER - Opp.Party(s)

SHREY GOEL

13 Nov 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

First Appeal No.867 of 2019

Date of Institution:01.10.2019

Date of decision:13.11.2019

 

Nishi Gupta D/o Sh.Anand Parkash Gupta (Registered owner of Vehicle No.HR 16-R-4290) resident of House No.25, Railway  Road, Clock tower, Kirorimal Colony, Bhiwani, Tehsil and District Bhiwani.

…Appellant

Versus

 

1.      Hyundai Motors India Engineering Pvt. Ltd. Kanchiguram Shri Perumbudur, Taluk Kachipuram District Tamilnadu 602117 through its MD/CEO.

2.      M/s Raghu Hyundai, Rohtak Road, Bhiwani Tehsil & Distt. Bhiwani.

…Respondents

 

CORAM:   Mr.Harnam Singh Thakur, Judicial Member.
                   Mrs. Manjula, Member.

 

Present:-    Ms.Shreya Vasishtha, Advocate counsel for the appellant.

                  

                                      O R D E R

 

HARNAM SINGH THAKUR, JUDICIAL MEMBER:

 

The appeal has been preferred against the order dated 26.06.2019 passed by the District Consumer Disputes Redressal Forum, Bhiwani (in short ‘District Forum’) vide which the complaint was partly allowed against OPNo.2 and directed the OP No.2 to pay Rs.25,000/- in lump sum as cost of repair of scr4atches/dent/paint of vehicle together with interest @ 9% per annum from the date of filing this complaint till its realization.  OP No.2 also to pay Rs.10,000/- as compensation on account of mental agony and physical harassment and Rs.5000/- as litigation expenses.

2.      The brief facts giving rise to the complaint are that she purchased new car from the opposite party No.1 in the year 2016 for domestic use.  At the time of delivery, the complainant found that four scratches on the front bumper of the car.  The engine cover was not painted properly by the O.Ps.  At the time of delivery of the vehicle, she objected the same and not ready to take the delivery of the defected vehicle, but, O.Ps. intentionally delivered the defected car to her. The complainant requested several times to the O.Ps to rectify the manufacturing defect, but, to no avail. There was deficiency in services on the part of the O.Ps.

3.      Upon notice,  Opposite party No.1 contested the complaint separately and alleged that there was no privity of contract between the complainant and OP No.1.  No problem was reported at the time of first free service.  The complainant has not raised any allegations regarding performance of the car.  Thus, there was no deficiency in service on the part of O.P.No.1.

4.      O.P.No.2 filed separate reply and submitted that  it was not possible that OP No.2 could have delivered the damaged car to the complainant deliberately and intentionally.  There was no defect on any part of the car except a pin point area on the bonnet of the car. Thus, there was no deficiency in service on the part of the O.P. No.2.

5.      An application for condonation of delay has also been filed.

6.      There is a delay of 65 days in filing the appeal.  Appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of 65 days wherein,  it is alleged that    the certified copy was prepared on 30.10.2018 and was delivered to the appellant on 12.11.2018.  Sh.Sunder Sham Dua, proprietor Dua General Store, Fell ill and could not contact his counsel at Chandigarh, Panchkula to file the instant appeal.  The appellant recovered from his illness in the first week of January, 2019 and collected the documents by 01.01.2019 and thereafter immediately contacted his counsel at Chandigarh to file the instant appeal. In these circumstances there was a delay of 65 days in filing of the present appeal. Thus, delay of 65 days in filing of the present appeal be condoned.

7.      Arguments heard on application for condonation of delay as well as on merits of appeal. File perused.

8.      It is argued by learned counsel for the appellant that certified copy was prepared on 30.10.2018 and same was delivered to her on 12.11.2018.  Sh.Sunder Sham Dua, proprietor Dua General Store, fell ill and could not contact his  counsel at Chandigarh, Panchkula to file the instant appeal.  It is further averred that the appellant recovered from his illness in the first week of January, 2019 and collected the documents by  01.01.2019 and thereafter immediately contacted his counsel at Chandigarh to file the instant appeal.  Learned counsel for the appellant vehemently argued that as per facts mentioned above, it is clear that delay in filing appeal is not intentional and may be condoned.

9.      However, it seems that the application for condonation of delay has been wrongly drafted.  It may be noted that Sh. Sunder Sham Dua, proprietor Dua General Store is not appellant in this case, but, the appellant in this case is Ms. Nishi Gupta-Appellant.  Thus, the delay of 65 days in filing the appeal is neither justified and nor reasonably explained.  No reasonable ground  and sufficient cause has been pleaded or proved.  Even if it was taken that appellant was in illness for about two months, there is no medical certificate appended with the  application for condonation of delay. Thus, inordinate delay for more than 2 months, cannot be condoned as there is no justifiable reason or cause to condone the same.

10.    Moreover, contention of learned counsel for appellant to condone delay is of no avail.  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 and rightly so, because it would vary from facts and circumstances of each case. It is settled law that delay of each and every delay should be explained properly with some reasonable cause  but in the appeal in hand but there is no reasonable justification and sufficient cause.

11.    Here reliance can be placed on 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 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”.

12.       Even on merits, there is no plausible ground to entertain the present appeal as learned District Forum partly allowed the complaint and directed the O.P. No.2 to pay an amount  of Rs. Rs.25,000/- in lump sum as cost of repair of scratches/dent/paint of vehicle together with interest @ 9% per annum from the date of filing this complaint till its realization to the complainant.  OP No.2 also to pay Rs.10,000/- as compensation on account of mental agony and physical harassment and Rs.5000/- as litigation expenses. 

13.       It is the case of the appellant that there were scratches dents on the vehicle.  There are two types of the defects i.e. one is patent defect and other is latent defect in the vehicle.  So far as the presence of scratches is concerned it was a patent defect, which could be detected by the appellant easily  with naked eyes, particularly when appellant is educationally well qualified and at present doing some job as stated at bar by learned counsel for the appellant.  Taking into consideration the principle of “caveat emptor” Buyer Beware, learned District Forum has already taken a liberal view while granting the relief. Thus, we find no illegality or infirmity in the impugned order which is quite reasonable and justified. There is no merit in the appeal, hence, the present appeal stands dismissed in limine.

 

13th  November, 2019       Manjula                                 Harnam Singh Thakur                                                      Member                                 Judicial Member                            

 

S.K

(Pvt. Secy.