STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 42 of 2014 |
Date of Institution | : | 05.02.2014 |
Date of Decision | : | 11.02.2014 |
Varun Bhardwaj s/o Sh.Arun Kumar, resident of House No.3220, Sector 37-D, Chandigarh.
…..Appellant/complainant
V e r s u s
1.Parle Agro Pvt. Ltd., through its Managing Director, Western Express Highway, Andheri (E), Mumbai – 400099.
2.The Managing Director, Parle Agro Pvt. Ltd., Western Express Highway, Andheri (E), Mumbai – 400099.
3.Arora Karyana & Confectioner, through Sh.Amar Lal, Booth No.8, Mini Market, Sector 37-D, Chandigarh.
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE:
Argued by:
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT
“For the reasons recorded above, we find merit in the complaint and the same is allowed only against OP No.3 because he sold a cold drink (Frooti) to the complainant, in which a black object was floating inside the bottle, due to which, it could not be consumed by the complainant and the deficiency in service on the part of OP No.3 is proved on this count. At the same time, in the absence of any chemical report, there is no definite evidence on the file to prove that the contents of the bottle were injurious to health. OP No.3 is accordingly directed to make payment of an amount of Rs.10,000/- to the complainant for harassment and mental agony and Rs.5,000/- towards litigation expenses. The complaint fails against OPs No.1 and 2.
This order shall be complied with by OP No.3 within one month from the date of receipt of its certified copy, failing which, OP No.3 shall be liable to refund the above said awarded amount to the complainant along with interest @ 12% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above.”
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10. Alongwith the appeal, an application under Section 5 of the Limitation Act, for condonation of delay of 55 days, was filed by the applicant/appellant, wherein, it was stated that certified copy of the order impugned dated 30.10.2013, was received, by hand, by him, on
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12. The Counsel for the appellant/complainant, submitted that since Opposite Parties No.1 and 2 were the manufacturer of drink, which was purchased by the complainant, they were squarely liable, for any defect, in the said product. He further submitted that the plea of Opposite Parties No.1 and 2, that they were only the trade mark owners of the name “Frooti”, did not absolve them of their liability. He further submitted that the District Forum was wrong, in coming to the conclusion, that Opposite Parties No.1 and 2 being merely the trade mark owners of the name “Frooti”, could not be held liable, as they could not be termed as manufacturers. He further submitted that the appeal be accepted and the relief claimed by the complainant, against Opposite Parties No.1 and 2, be granted.
13. 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 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.”
14. ,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 is not to be swayed by sympathy or benevolence.
15. In,the Supreme Court observed as under:-
“We hold that in each and every case the Court has to examine whether delay in filing the Special 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”.
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“The party should show that besides acting bona fide, it had taken all possible steps within its
17. , it was held as under:-
“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 Section 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 litigation who is not vigilant about his rights must explain every days delay”
18. Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held 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”
19. stated in the application, is that, on receipt of the order impugned dated 30.10.2013, by the applicant/ appellant, on 12.11.2013, the same alongwith case papers, for filing an appeal, against the same (order impugned), were handed over to the It may be stated here that the bald assertion of the applicant that since theCounsel concerned was busy, in the treatment of his daughter, without substantiation, through any cogent material, is of no avail. No medical record, with regard to the treatment of the daughter of the Counsel concerned, who was to file the appeal, from 12.11.2013, when the applicant/appellant received thecertified copy of the impugned order, by hand, until the filing of appeal, was produced by the applicant/appellant. Since, the applicant/appellant took a specific stand, as to why the delay occurred, in filing the appeal, it was incumbent upon him, to produce the medical record to substantiate his stand. Once the certified copy of the order, free-of-cost, was received by the applicant/ appellant, by hand, on 12.11.2013, it was his duty, to file the appeal, within the prescribed period of 30 days, but he failed to do so. No doubt, the application, is supported by the affidavit of the complainant, yet, no sufficient cause, is made out, from the averments, contained therein, as also in the application, for condoning the delay. It appears that after receiving the certified copy of the impugned order, the applicant/appellant, slept over the matter and, ultimately, woke up from his deep slumber, after about 55 days, when the instant appeal was filed. It could be said that the applicant/appellant was not diligent, in pursuing the matter. The prescribed period of limitation, as envisaged by Section 15 of the Act, for filing an appeal is 30 days, from the date of receipt of a certified copy of the order.
20. Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361,it was
“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.”
21. 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 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 applicant/appellant, in condoning the delay.
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23. , it was held by the Delhi High Courtthat the person, who is the owner of the brand name, need not be the manufacturer of the food articles, sold under the brand name, and, in case, there is no link between the owner of the brand name, and the manufacturer of the food article, then merely because the brand name had been permitted to be used by the manufacturer, the owner of the brand name could not be implicated. In the instant case also, Opposite Parties
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Pronounced.
February 11, 2014
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
(DEV RAJ)
MEMBER
Sd/-
(PADMA PANDEY)
Rg
