KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
I.A. No. 518/2023 in APPEAL No. 251/2023
ORDER DATED: 31.07.2023
(Against the Order in C.C. 156/2019 of CDRC, Malappuram)
PRESENT:
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
SMT. BEENA KUMARY. A : MEMBER
SRI. RADHAKRISHNAN K.R. : MEMBER
PETITIONER/APPELLANT:
Spicejet Ltd., 319, Udyog Vihar, Phase-IV, Gurugram, Haryana.
(By Adv. Baby Abraham)
Vs.
RESPONDENT:
Jishad M., S/o Muhammed Musthafa, Madasseri House, Marutha, P.O. Mundapotty, Nilambur, Malappuram-679 333.
ORDER
SRI. RADHAKRISHNAN. K.R.: MEMBER
This is a petition for condonation of a delay of 418 days in filing the appeal. The appellant is the first opposite party before the Consumer Disputes Redressal Commission, Malappuram (District Commission for short) in C.C. No. 156/2019. The District Commission by its order dated 03.03.2022 allowed the complaint and directed the opposite parties to pay to the complainant:
- Rs. 8,700/-, the taxi fare he had paid for travelling from Kochi to his native place.
- Compensation of Rs. 50,000/- on account of deficiency in service on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant.
- Rs. 10,000/- as costs of the proceedings
If the amount is not paid within 30 days of the receipt of copy of the order, the amounts shall carry interest @ 12% per annum from the date of receipt of the order till realisation.
2. The complainant was a passenger of the opposite party airlines from Bagdogra to Bangalore on 07.12.2018. As the flight was delayed, he missed the connection flight to Calicut. Though they had arranged an alternate flight later, he had to suffer mental agony, physical hardships and sufferings because of the delay of the flight. Hence he filed the complaint alleging deficiency in service on the part of the opposite parties. As the opposite parties did not file any version, the District Commission passed the impugned order. Aggrieved by the said order, the first opposite party has filed this appeal with a delay of 418 days.
3. The petitioner seeks condonation of a delay of 418 days in filing this appeal. The learned counsel for the appellant/petitioner submitted that no notice was sent to or was served upon the appellant, when the proceedings started again after lock down due to Covid 19 pandemic was relaxed. The appeal may be considered as deemed to have been filed within the stipulated period of limitation by condoning the delay in view of the order of the Hon’ble Supreme Court in Suo Moto Writ Petition (C) No. 3 of 2020. It was further submitted that all cases related to the appellant are managed by the corporate office at Gurugram, Haryana, and so they could not enquire about the said matter and could not properly defend the proceedings. They came to know about the order only when they were served with notice of execution application. The delay was neither intentional nor deliberate but has been caused due to reasons beyond their control. There is no wilful negligence or delay on their part in filing the appeal and hence the learned Counsel prayed to condone the delay of 418 days in filing the appeal.
4. We have considered the submissions of the learned counsel for the appellant and perused the affidavit and other the records. The contention of the learned counsel for the appellant is that the appellant was not served with notice in the complaint. They came to know about the order of the District Commission only when the appellant was served with the notice of execution application. Paragraph 4 of the order of the District commission is relevant in this context. It states as under:
In paragraph 6 it is stated that opposite parties did not file their version. Absolutely, no evidence has been produced by the opposite party to show that the observation of the District Commission is erroneous in any manner. After having received the notice the appellant/opposite party is bound to enquire about the progress of the complaint. Hence their argument that they have not received any notice after the Covid 19 pandemic is not tenable.
5. The learned Counsel for the appellant further submitted to exclude the period of delay by considering exclusion of limitation period due to Covid 19 pandemic as per the order of apex Court. Relevant portion of the order dated 10.01.2022 of the apex Court in WP (C) 3 of 2020 is reproduced below:
“5. III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply”.
Evidently the appellant is not eligible for the exclusion of limitation as contemplated under the said order as the appeal is filed much after the relaxation period given in the said order. Other contentions raised by the appellant are also not convincing and acceptable.
6. Needless to say that condonation of delay cannot be claimed as a matter of right. Where there is a delay, the burden is upon the person who appears before the Commission seeking condonation of delay to explain it with sufficient reasons. The appellant appears to have not acted diligently and had remained inactive for quite some time. They have not been able to give adequate and sufficient reasons to show that they were prevented from approaching this Commission within the limitation period, due to circumstances beyond their control. We are not satisfied with the reasons submitted by the appellant for condonation of delay in filing the appeal.
7. Apart from the above, though notice was served on the appellants /opposite parties in this case, they have not filed any written version before the District Commission. Therefore, they were set ex-parte and the complaint has been decided by the District Commission on the evidence that was adduced by the complainant. The said procedure of the District Commission is in conformity with the dictum laid down by the Constitution Bench of the Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757. It is not permissible for them to be provided with any further opportunity to plead and prove their case.
In view of the foregoing reasons, we find no grounds to condone the inordinate delay of 418 days. The petition for condonation of delay is accordingly dismissed. As a consequence, the appeal is also dismissed in limine being barred by limitation.
JUSTICE K. SURENDRA MOHAN: PRESIDENT
AJITH KUMAR D. : JUDICIAL MEMBER
BEENA KUMARY. A : MEMBER
jb RADHAKRISHNAN K.R. : MEMBER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 251/2023
JUDGMENT DATED: 31.07.2023
(Against the Order in C.C. 156/2019 of CDRC, Malappuram)
PRESENT:
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
SMT. BEENA KUMARY. A : MEMBER
SRI. RADHAKRISHNAN K.R. : MEMBER
APPELLANT:
Spicejet Ltd., 319, Udyog Vihar, Phase-IV, Gurugram, Haryana.
(By Adv. Baby Abraham)
Vs.
RESPONDENT:
Jishad M., S/o Muhammed Musthafa, Madasseri House, Marutha, P.O. Mundapotty, Nilambur, Malappuram-679 333.
JUDGMENT
SRI. RADHAKRISHNAN. K.R.: MEMBER
Petition for condonation of delay dismissed. Therefore this appeal is dismissed.
The amount of statutory deposit made by the appellant shall be refunded to them, on proper application.
JUSTICE K. SURENDRA MOHAN: PRESIDENT
AJITH KUMAR D. : JUDICIAL MEMBER
BEENA KUMARY. A : MEMBER
jb RADHAKRISHNAN K.R. : MEMBER
