Per Mr B A Shaikh, Hon’ble Presiding Member

1.      We have heard advocates of both parties on the application made for condonation of delay of 359 days that occurred in filing of the present appeal.  We have also perused the entire record and proceedings of the appeal.

2.      As per the explanation given by advocate of the appellant about the said delay in brief that the impugned order was passed on 31.03.2016. But the local counsel engaged by the appellant at the Forum below did not intimate the appellant about the outcome of the complaint nor did he provide the appellant with copy of the impugned order, though the appellant made several attempts to contact him but of no avail. Therefore, appellant decided to change the counsel and accordingly another counsel was engaged in the month of March 2017, who came to know that the Forum below has already allowed the complaint.  Therefore, on receiving that information from another advocate, engaged as above, the appellant applied to the Forum below, for certified copy of the impugned order, which was received by the appellant’s advocate on 04.03.2017 and appellant got that copy on 15.03.2017 from its advocate. Thereafter, the appellant made preparation to file the present appeal and after  finalization and approval of management with regard to the draft of the appeal, it came to be filed before this Commission on 24.04.2017.

3.      The learned advocate of the appellant thus submitted that the delay was occurred because of the negligence and non-co-operative attitude of the previous advocate of the appellant and as soon as the appellant engaged another advocate and obtained certified copy of the impugned order, immediate steps were taken and thus appeal came to be filed.  Thus, according to him as there is no fault on the part of the appellant, the delay of 359 days which has occurred because of the inaction on the part of the previous advocate, may be condoned.

4.      The learned advocate of the appellant relied on the decisions in the following two cases.

i.        N Balakrishnana Vs. M Krsihnamurthy, reported in 1998 DGLS (SC) 874, decided on 03.09.1998.

          In that case, the following observations are made by the Hon’ble Supreme Court.

“It is axiomatic that condonation of delay is a matter of discretion of the Court and section 5 of the Limitation Act does not say that such discretion could be exercised only if delay was within certain limit.  Length of delay is no matter, but acceptability of explanation is the only criteria. In the present case explanation for the delay set up by the appellant was found satisfactory to the trial Court in the exercise of its discretion and the High Court went wrong upsetting the finding, more so when the High Court was exercising revisional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs.50,000/- from the delinquent advocate through the Consumer Disputes Redressal Forum.  We, therefore, allow these appeals and set aside the impugned order by reassuring the order passed by the trial court but on a condition that appellant shall pay a sum of Rs.10,000/- to the respondent (or deposit it in this Court) within one month from this judgement.

ii.       Improvement Trust, Ludhiana Vs. Ujagar Singh & Ors., 2010 DGLS(SC) 407, decided on 09.06.2010.

          In that case, the advocate of the appellant relied on the observations made in Para No.14. The said observations are as follows.

          “After all, justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it of on such technicalities and that too at the threshold. Both sides had tried to argue the matter on merits but we refrain ourselves from touching the merits of the matter as that can best be done by the Executing Court which had denied an opportunity to the appellant to lead evidence and to prove the issues so formulated.”

The learned advocate of the appellant alternatively submitted that as the appellant has got a very good case on merits, delay on the same ground may be condoned in view of the aforesaid decisions.

5.      On the other hand, the learned advocate of the respondent strongly opposed the application. He submitted that the aforesaid both decisions are not applicable to the facts & circumstances of the present case in as much as there is negligence and total inaction on the part of the respondent in not taking updates of the proceedings of the complaint when the same were available on the internet during these days of working of the Foras and uploading the progress of the complaint on internet.  It was very easy for the appellant to approach the Forum below and to take necessary information about progress of the complaint.  But they did not do so, which amounts to total negligence on their part.  He further submitted that no notice was given by the appellant to their previous advocate for the negligence or inaction on his part. He also contended that it was the own responsibility of the appellant to approach the Forum below and to obtain certified coy of the impugned order as the record shows that the certified copy of the impugned order was ready for delivery on 01.04.2016, but the appellant deliberately did not take the same from the Forum below and therefore, the appellant cannot take benefit of receiving that certified copy on 04.03.2017 from its subsequent advocate.  He, further submitted that even in the application it is not explained by the appellant as to why the appeal could not be filed within one month after receiving certified copy of the impugned order on 04.03.2017.  Therefore, he requested that as the delay is very long i.e. of 359 days and as it is not properly explained and as the said delay has been occurred only because of gross negligence on the part of the appellant, the same may not be condoned.  He denied that the appellant has got a very good case on merits.  Hence, he requested that the application may be rejected.

6.      Minute perusal of the copy of the impugned order shows that its copy was ready for delivery to the appellant on 01.04.2016 but it was received by the appellant on 04.03.2017.

7.      It is also seen that in the application made for condonation of delay it is stated by the appellant that there were several attempts made by the appellant to contact the local counsel, but of no avail.  However, no explanation is given by the appellant as to why its any of representative did not directly go to the office of the Forum below for making the enquiry to know the  progress made in the complaint. In our view, when the appellant is an Insurance Company, it ought to have sent its any of the representative to the Forum below to seek information about the progress made in the complaint or decision, if any, passed in the complaint.  In our view, when the local counsel did not give response in spite of making several attempts by the appellant to contact him, the appellant should not have waited for such long period of about 359 days for engaging another advocate and for obtaining certified copy of the impugned order. It was necessary for the appellant to immediately engage another advocate or to approach through its representative immediately to the Forum for seeking necessary documents and information. Therefore, we find that it was total inaction and gross negligence on the part of the appellant in not taking proper steps for obtaining the copy of impugned order and thereafter for filing of appeal.

8.      It is also seen from the application that the copy of the impugned order was received by the appellant through its counsel on 04.03.2017. Moreover, the explanation given in the application is that the delay from 04.3.2017 till 24.04.2017 was occurred because of finalization and approval of the management with regard to the draft of the appeal.  We find that in these days of working of the internet, no such delay of more than 30 days can occur in finalization of the draft of the appeal.  Thus, no proper explanation is given for the delay beyond 30 days from 04.03.2017.

9.      It is also pertinent to note that Hon’ble Supreme court in the recent case of Anshul Aggarawal Vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578, has specifically observed that as Consumer Protection Act special specifies the period of limitation, object of expeditious adjudication of consumer disputes would be defeated if belated petitions are entertained.  Therefore, the Hon’ble Supreme Court refused to condone the delay of 233 days in that case that had occurred in

challenging the order passed by Hon’ble National Commission.

10.    We find that the aforesaid observation of Hon’ble Supreme Court is squarely applicable to the present case. We find that if such in ordinate delay of 359 days without any proper explanation is condoned, then it would defeat the very object of expeditious disposal of the proceeding filed under the Consumer Protection Act, 1986. 

11.    We, therefore, find that in view of the aforesaid decision of the Hon’ble Supreme Court in the case of Anshul Aggarawal Vs. New Okhla Industrial Development Authority, the decisions relied upon by the learned advocate of the appellant are not applicable to the facts & circumstances of the present case. Moreover, facts & circumstances of those cases relied by appellant’s advocate are totally different from those of the present case and hence they are of no assistance to the appellant.  We are, therefore, of the considered view that the delay of 359 days has been occurred only because of inaction and gross negligence on the part of appellant and therefore such long delay cannot be condoned and application deserves to be rejected.  Accordingly, following order is passed.

ORDER

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

ii.       The appeal is dismissed as time barred.

iii.      No order as to costs in this appeal.

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