Per Hon’ble Mr. Justice S.B.Mhase, President
Heard Advocate Mr.Amit Singh for the appellant.
2. This appeal takes an exception to an order passed by the District Forum Thane on 15/03/2008 in consumer complaint no.332/2007. By this complaint the appellant is directed to pay an amount of `1,000/- by way of costs of the litigation to the respondent. The appellant is further directed to pay an amount of `44,800/- along with interest @ 8% p.a. from 01/01/2007. The appellant is further directed to make payment of `5,000/- towards mental agony. If the amount is not paid within a period of two months, appellant shall pay interest @ 3% p.a. on `44,800/-.
3. Free copy of this order was dispatched on 27/06/2008 by hand-delivery and further duplicate copy has been issued on 18/08/2008. According to the appellant, there is delay of five months and 17 days. IN the application for delay condonation, appellant has made a grievance that appellant has received information of the order when appellant received notice of execution on 06/10/2008 and, thus, calculated delay. However, we find that said statement is incorrect. In fact, appellant has received duplicate certified copy on 18/08/2008. The appellant’s statement that appellant has received information on 06/10/2008 is incorrect statement and, therefore, actual delay is not of five months and 17 days, but it is much more if calculated from the date of the receipt of the copy to them. Further grievance of the applicant is that there was no service and, therefore, the order which has been passed ex-parte is without any merit. Appellant tried to point out that acknowledgement which is on record is not correct. In dispatch receipt address has been stated that “Writ International Residential School, Pimpoli Village, Badlapur”. Acknowledgement is not on record. However, from this we find that notice was properly addressed. Even the address given in the appeal memo is same address and, therefore, it was deemed to be properly served. Therefore, presumption under section 28-A of Consumer Protection Act, 1986 that the notice has been properly served can be legally drawn and is sustainable under the law. As such, the grievance of the appellant that notice was not properly served is without any substance. What is important to be noted is that that there is no other school of similar name in the locality. There cannot be mistake on the part of postal authority while serving the notice of the District Forum on appellant.
4. The third ground is that Principal of said school was suffering from high blood pressure, diabetes and heart ailment and due to this reason appeal cannot be filed. There is also submission that Principal was suffering from slip disk and, therefore, unable to look after day to day work. On this ground the delay need not to be condoned. In order to substantiate his contention, a medical certificate issued by B.A.M.S. doctor is produced on record. Said certificate states that Mr.Shivrajan was under treatment from 02/10/2008 and he was suffering from lumbagos and complaint of diabetes mellitus and, therefore, advised rest. It is further to be noted that whether he was diagnosed as diabetes is not known from this certificate because it was stated that he was having complaint of diabetes. Therefore, further investigation to conclude as diabetes was very much necessary. So far as lumbagos is concerned, it is a problem of spine and, therefore, radiological or MRI report should have been made available on record. Presently, only lumbagos has been stated but what was the problem of spine has not been stated. This appears to be a manipulated certificate taken only for condonation of delay. Therefore, we asked Learned Counsel for the appellant that whether as a result of illness Principal whether school was closed. He replied that school was not closed. There were other officer who could have looked after filing of appeal. At the most it can be said that if the Principal was not available, other officer of school like Vice Principal were there to look after this issue. In fact, these are the educational trusts run by the Trust and Trustees could have filed the appeal. Apart from this if according to school Principal was bed ridden, then leave application duly sanctioned should have been produce along with appeal. Therefore, this ground of illness is not established. In the result there is no valid reason for condonation of delay. It is hereby rejected.
5. However, we do not rely upon this technical aspect only. Therefore, we have decided to look into merits of the case. As we have stated that in spite of service, appellant preferred to remain absent for reasons best known to them but we find that this is artificial attempt to invite remand of the case. It is interesting to note that Shri Pradeep Koli has taken admission for his son in the residential school (appellant) and he has paid 44,800/- and, therefore, it was obligatory for the appellant to look after the child. It has been found that no treatment was given. This aspect was investigated and inquired into by the education officer and his report is on record. The education officer has also directed to appellant to return money of complainant. All this material is on record and taking cognizance of these aspects, the complaint has been allowed by the District Forum. Therefore, we find that there is no substance in the present appeal. Filing of this appeal is an attempt of appellant to harass the respondent (original complainant) by involving him in further litigation when it is found that there is deficiency in service and proper treatment has not been given at their end. Under this circumstances, delay condonation application is rejected. Therefore, appeal stands rejected at admission stage. Apart from that since we considered appeal for admission at this delay condonation stage and have found that there is no merit in appeal, we reject this appeal in limine.
ORDER
Appeal is rejected in limine.
Inform the parties accordingly.
Pronounced on 09th August, 2010.
