STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. Canteen Stores Department through General Manager, Army Headquarters, DHQ, P.O., New Delhi – 01.

2. Mr. Lakhwinder Singh, Area Manager, Canteen Stores Department (Main), Barrack No.2, P.B. No. 8, Allenby Road, Ambala Cantonment- 133001.

3. Mr. Parbhakaran, Assistant Manager, Canteen Stores Department (Main), Barrack No.2, P.B. No.8, Allenby Road, Ambala Cantt – 133001.

                           ……Appellants

V e r s u s

1. Mr.Balraj Singh Rathee s/o Sh. Gagan Ram, #174, Adarsh Nagar, Pipli Wala Town, Manimajra, Chandigarh.

2. Hind Motors India Ltd., through its General Manager, 15, Industrial Area, Phase-I, Chandigarh.(Service dispensed with vide order dated 26.08.2011)

3. Tata Motors Finance Ltd., through its Manager, SCO No. 1124-1125, Sector 22-B, Chandigarh. (Service dispensed with vide order dated 26.08.2011)

              ....Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE SHAM SUNDER, PRESIDENT.

              MRS. NEENA SANDHU, MEMBER.

              SH.JAGROOP SINGH MAHAL, MEMBER.

Argued by:  Sh.GKS Taank, Advocate for the applicants/                           appellants

              Sh.Harish Sharma, Advocate for respondent no.1.

              Service of respondents no.2 and 3, dispensed with                  vide order dated 26.08.2011

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.             This appeal is directed against the Majority order dated 22.02.2011, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, and directed Opposite Parties no.1, 2 and 3, jointly and severally, as under:-

“(i)      The OPs shall pay a compensation of `35,000/- for causing physical harassment, mental agony and pain to the Complainant, on account of not processing/ finalizing his case for the delivery of Indigo Manza Aqua Q.J. car through CSD, even after the Complainant had completed all necessary formalities, including making full payment of `5,13,225/- to the OPs, required in the case, as per CSD Scheme of Govt. of India.

(ii)      The OPs shall pay a sum of `5,000/- as litigation costs to the Complainant.

The aforesaid order be complied with by the OPs, within a period of 30 days from the receipt of its certified copy, failing which OPs shall, jointly and severally, pay `35,000/-, along with interest @18% per annum from the date of filing the present complaint i.e. 12.04.2010, till the date of realization, besides paying the costs of litigation of `5,000/-“.

2.             The complaint against Opposite Parties no. 4 and 5, was dismissed.

3.             However, one Member of the District Forum, passed the dissenting order dated 23.02.2011.

4.             The facts, in brief, are that the complainant (now respondent no.1) being an Ex-serviceman, submitted an indent form alongwith affidavit and other requisite documents, for the purchase of Indigo Manza Aqua Q.J car, through CSD, as per the policy of Govt. of India, but Opposite Party No. 2, (now appellant no.2), who was the Area Manager of Canteen Stores Department (CSD), Ambala Cantt, did not process his application, due to which, he had to file Civil Writ Petition No. 4106 of 2010 on 08.03.2010, in the Hon’ble Punjab and Haryana High Court. It was only on issuance of notice of motion, that Opposite Party No.2, granted sanction for purchase of the aforesaid car, vide letter dated 20.03.2010 (Annexure C-3). Thereafter, the complainant, raised a loan of Rs.3.00 lacs, for the purchase of aforesaid car, from Opposite Party No. 5, through Opposite Party No. 4. On 8.4.2010, the complainant, sent his representative Sh. Sarvan Kumar, alongwith the demand draft of Rs.5,13,225/-, and authority letter, but Opposite Party No.2, refused to accept the same. Opposite Party No.2, desired the complainant, to furnish an affidavit, just to harass and humiliate him. As instructed by Opposite Party No. 2, the complainant submitted the said affidavit on 9.4.2010, to Opposite Party No.3 (now appellant no.3), since the former was not available in his office. Opposite Party No.3, received the said affidavit, demand draft, availability certificate, issued by Opposite Party No.4, and the covering letter dated 09.04.2010, which carried a specific request to release the Cheque/DD, alongwith release order, in favour of Opposite Party  No.4, so as to facilitate the immediate delivery of car, to him(complainant),  by it (Opposite Party No.4). It was further that Opposite Party No.3, refused to issue the receipt and acknowledgement of the same and this act was done, on the instructions and behest of Opposite Party No.2, just to harass the complainant. Finally, release order, in favour of Opposite Party No.4, was not issued by Opposite Party No.1,2 and 3. Due to non-issuance of the release order, the complainant suffered mental agony, physical harassment, as also financial loss. It was stated that the aforesaid acts of Opposite Parties no.1, 2 and 3, amounted to deficiency in service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), claiming compensation to the tune of Rs1.00 lac; Rs.5500/- towards costs of litigation; and interest on the loan obtained for the purpose, or in the alternative, for waiver of the said interest, on the loan, till the car was actually delivered to the complainant, was filed.

5.             Opposite Parties no.1, 2 and 3, in their joint written version, admitted the factual matrix of the case. It was stated that the sanctioning authority, in case of purchase of new car was CSD (wrongly mentioned as CSH) HQ, Mumbai, and the Area Manager, was only the forwarding Officer. It was further stated that the documents submitted by the complainant, were forwarded to the CSD HQ, Mumbai, and its sanction was received on 19.3.2010,  in a routine manner, which was duly communicated to him(Complainant), vide letter dated 20.3.2010. It was further stated that, whosoever, approached the Depot/Opposites Parties, with complete documents/ payment, release order was issued against proper receipt. It was further stated that, as per the policy of the Department, the payments were released to the dealers, only after the receipt of bills from them, in token of having delivered the vehicle, to the customer(s). It was further stated that since the Depot, had never received any payment, from the complainant, therefore, there was no deficiency,  as the job of the Depot started, once proper payment was made, against receipt, by the customer. It was further stated that the complainant was still at liberty to take the car, as per his entitlement, from any approved dealer, located under the jurisdiction of the Depot, in the State of Haryana . It was further stated that neither there was any deficiency, in service, on the part of Opposite Parties No.1, 2 and 3, nor they indulged into unfair trade practice. The remaining averments, were denied being wrong.  

6.             Opposite Party No. 4 (now respondent no.2), in its written version, also admitted the factual matrix of the case. It was stated there was no business partnership, between Opposite Party No. 4 & Opposite Party No.5 (now respondent no.3). It was further stated that the role of Opposite Party No. 4, started only after receiving the entire amount, or voucher, whatsoever, from Opposite Parties  No. 1,2, 3 and 5. It was further stated that without receiving the entire amount, it could not release/deliver the vehicle, to the customer(s). It was further stated that neither there was any deficiency, in service, on the part of Opposite Party No.4, nor it indulged unfair trade practice. The remaining averments, were denied being wrong. 

7.             Opposite Party No.5, was duly served, but no authorized agent, appeared on its behalf, as a result whereof, it was proceeded against ex-parte on 24.05.2010.

8.             The complainant, as well as Opposite Parties No.1,2,3 and 4, led evidence, in support of their case.

9.             When the complaint was fixed for final hearing on 22.02.2011, none put in appearance, on behalf of Opposite Parties No.1, 2 and 3, whereas, Opposite Party No.5, had already been proceeded against exparte, as referred to above. The District Forum, however, proceeded to dispose of the complaint, on merits, under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987, read with Section 13(2) of the Act (amended up-to-date),in the absence of Opposite Parties No.1,2 and 3.

10.           After hearing the Counsel for the complainant, as well as Opposite Party No.4, and, on going through the evidence, and record of the case, the District Forum, vide majority order, accepted the complaint, against Opposite Parties No.1,2 and 3, in the manner, referred to, in the opening para of the instant order. 

11.           Feeling aggrieved, the instant appeal, was filed by the appellants/Opposite Parties No.1,2 and 3.

12.           Alongwith the appeal, an application for condonation of delay of 90 days (as per the applicants/appellants) and 61 days (as per the office report), in filing the same (appeal), has been moved. The grounds, set up in the application, are to the effect, that the Majority order, by the District Forum, was pronounced on 22.02.2011, and a copy of the same, for delivery was ready on 09.03.2011. The appeal was required to be filed within 30 days, from that date, but the same was filed after 90 days (as per the applicants/appellants) and 61 days (as per the office report). It was stated that, in fact, the applicants/appellants, obtained certified copy of the order from the District Forum, on 19.05.2011 and it was communicated by their Counsel on 20.05.2011, to the Head Office of the Canteen Stores Department, situated at Mumbai, which was to accord administrative approval, to file an appeal. It was further stated that, on account of the cumbersome procedure, which was required to be adopted, for obtaining approval, for filing an appeal, the delay occurred. Accordingly, the prayer, referred to above, was made.

13.         In reply to the application, respondent no.1, stated that no sufficient cause, was constituted, from the grounds, mentioned in the application, for condonation of delay of 90 days (as per the applicants/appellants) and 61 days (as per the office report). It was further stated that, even if, the version put forth, by the applicants/appellants, to the effect that the certified copy of the impugned order was obtained on 19.05.2011, the appeal was filed on 12.08.2011 (infact 19.08.2011, as the said application was signed by the appellants on 12.08.2011, but was filed in this Commission, on 19.08.2011, by their Counsel). Therefore delay of 85 days (infact 90 days as per the applicants/appellants and 61 days as per the office report), which remained unexplained, was attributable to the palpable negligence of the applicants/appellants. Accordingly, a prayer was made, that the application be dismissed.

14.         We have heard the Counsel for the applicants/appellants, as well as  respondent no.1 (Service of respondents no.2 and 3, was dispensed with vide order dated 26.08.2011)  and, have gone through the evidence and record of the case, carefully. 

15.         First coming to the application, for condonation of delay, it may be stated here, that the same is liable to be dismissed, for the reasons to be recorded hereinafter. The first question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 90 days (as per the applicants/appellants) and 61 days (as per the office report), in filing the appeal under Section 15 of the Act. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the  Punjab & Haryana High Court,  that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In  New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court   held as under ;

“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”

16.            In  Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under;

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

17.       Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen,  as to whether, the applicants/appellants, have been able to establish that it was, on account of the circumstances, beyond their control, that they could not file the appeal, in time. The appeal could be filed within 30 days, from the date of receipt of a copy of the order. The grounds set up, by the applicants/appellants, in the application, for condonation of delay, are that, the Head Office of the Canteen Stores Department, being situated at Mumbai, it took sufficient time, to obtain its approval for filing the appeal.  The delay of 90 days (as per the applicants/appellants) and 61 days (as per the office report), which is three times, more than  the normal period of filing an appeal U/s 15 of the Act, was on account of  the complete inaction, and lack of bonafides, attributable to  the applicants/appellants.  The cause, set up by the applicants/appellants, in the application, for condonation of delay, could not be said to be such, as was beyond their control, which prevented them, from filing the appeal in time. Had the concerned Officers/Officials of the applicants/appellants, acted with due diligence, and prompt dispatch necessary sanction/approval/permission, from the Head Office, within the shortest possible time, could be obtained. It could not be said that the delay in filing the appeal, was, on account of the circumstances, beyond the control of the applicants/appellants. The mere fact that the concerned Officers/Officials, of the applicants/appellants, acted in a leisure mood, without envisaging the consequences, which could ensue, on account of non-filing of the appeal, within the stipulated period, provided under Section 15 of the Act, does not mean that they could be shown undue indulgence. The applicants/appellants, therefore, failed to prove, any sufficient cause, in filing the appeal, after such a long delay of 90 days. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 90 days cannot be condoned. The application is, thus, liable to be dismissed. 

 18.        The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory on the Commission, to condone the delay. The answer to this question, is in the negative. In  Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was  held as under ;

“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.”

 19.                    It is evident, from the principle of law, laid down, in Ram Lal & Ors.’s case (supra), that even 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, requires the Commission, to take into  consideration, all the  relevant factors, and it is at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, the Opposite Parties (now appellants no.1,2 and 3), were represented by Dr.G.K.S. Taank, Advocate, Central Government Senior Panel Counsel.  Further, it is evident from the record of the District Forum, that on 22.02.2011, when the complaint was fixed for final hearing, none put in appearance, on behalf of Opposite Parties No.1, 2 and 3. The District Forum, however, proceeded to dispose of the complaint, on merits, under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987, read with Section 13(2) of the Act (amended up-to-date), in the absence of Opposite Parties No.1,2 and 3(now appellants). This speaks volumes of the conduct of Opposite Parties No.1,2 and 3 (now appellants), and establishes that they were never vigilant and diligent, in pursuing the case, or defending the same, even before the District Forum. It was obligatory upon the Counsel for the applicants/appellants, to enquire about the final outcome of the complaint, and then take immediate steps, by filing the appeal, within the stipulated period, as envisaged under Section 15 of the Act.  It was, thus, a case of complete lack of bonafides and inaction, on the part of Opposite Parties no 1,2 and 3 (now appellants). The principle of law, laid down in Ram Lal & Others’ case(supra) is fully applicable to the instant case.   This is, therefore, not a fit case, in which this Commission should exercise its discretion, in favour of the applicants/appellants, in condoning the delay.

20.           Now coming to the merits of the appeal.      Admittedly, the complainant being an Ex-serviceman, submitted an indent form, alongwith all the requisite documents, to Opposite Party No.2 (now appellant No.2), for the purchase of Indigo Manza Aqua Q.J car, through CSD, on  account of the reason, that the rates of the vehicle, if purchased from the said canteen, were concessional. Annexure C1 to C-8, are the documents, which were submitted alongwith the indent form, by the complainant, for the purchase of the said car. It is evident, from the record, that right from the day one, the complainant, applied for the purchase of the car, from CSD, as an Ex-serviceman, he had to face trouble at every stage. Once his grievance was not redressed, he had to file a Civil Writ Petition, in the Hon`ble Punjab and Haryana High Court, wherein, notice of motion was issued to Opposite Parties No.1, 2 and 3. It was only thereafter, that on 20.03.2010, the sanction for the purchase of said car, was granted to the complainant. Annexure C-8, the document dated 09.04.2010, also reveals that the complainant, had fulfilled all the necessary formalities, including submission of affidavit, demand draft, invoice-cum-availability certificate issued by Opposite Party No.4 and the covering letter dated 09.04.2010, which carried a specific request to release the Cheque/DD in favour of Opposite Party No.5, alongwith release order in favour of Opposite Party  No.4, but Opposite Party No.2,  did not do so, as his intention was to harass the complainant, at every stage. No objection was raised, at the time of submission of the documents, as also the Demand Draft and affidavit, by the complainant, as per the asking of Opposite Parties No.1,2 and 3. Had there been any deficiency, in the documents, submitted by the complainant, Opposite Parties No.1,2, and 3, would not have accepted the same, and, on the other hand, returned the same, after making an endorsement thereon or by writing a separate letter that since the documents were not complete, his request for delivery of car, could not be taken into consideration. It was the CSD, which was to send the payment, made by the complainant, through the demand draft, to the dealer, as the latter, was to deliver the car only on receipt of the same. In their written version, Opposite Parties No.1,2 and 3, stated that on 09.04.2010, release order in favour of 200 persons/consumers, had been issued. As stated above vide letter Annexure C-8 dated 09.04.2010, that the complainant had deposited the demand draft of Rs.5,13,225/- alongwith the requisite documents, with the Area Manager of CSD, but he was singled out, by not issuing the release order to him. It was, on account of the reason, that the complainant, earlier knocked the door of the Hon`ble Punjab and Haryana High Court, and as per the order passed therein sanction order dated 20.03.2010 had been issued in his favour. Opposite Parties No.1,2 and 3, were feeling upset, and disturbed, on account of the legal   right, which was exercised, by the complainant, by resorting to the remedy available to him, by way of filing Civil Writ Petition in the Hon`ble Punjab and Haryana High Court. The concerned authorities, indulged into such nefarious activities, by discriminating one person like the complainant, vis-a-vis the similarly situated persons, only on account of the reason, that he filed Civil Wirt Petition, against Opposite parties No.1,2 and 3, resulting into passing of order and issuance of the sanction,  for purchase of car on 20.03.2010, Annexure C-3. The complainant, thus, underwent a lot of mental agony and physical harassment, as also financial loss, on account of the aforesaid acts of Opposite Parties No.1,2 and 3. The aforesaid acts of the Opposite Parties No.1,2 and 3, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice.

21.           Now, coming to the quantum of compensation, it may be started here, that keeping in view the totality of facts and circumstances of the case, prevailing, on the record, the District Forum, was right, in awarding compensation, in the sum of Rs.35,000/-. The compensation granted to the complainant, could not be said to be unreasonable or unfair. On the other hand, the compensation, awarded by the District Forum, could be said to be reasonable and fair, keeping in view the tremendous mental agony and physical harassment undergone by him(complainant), at the hands of Opposite Parties No.1 to 3. The findings of the District Forum, in this regard, being correct are affirmed.

22.           No other point, was urged, by the Counsel for the appellants, as well as, respondent no.1.

23.           The order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

24.           For the reasons recorded above, the application for condonation of delay is dismissed. Consequently, the appeal being barred by time and devoid of merit, is also dismissed, with no order, as to costs.

25.           Certified Copies of this order be sent to the parties, free of charge.

26.           The file be consigned to Record Room, after completion

Pronounced.

March 1, 2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Rg