Tripura

StateCommission

A/1/2016

Sri. Rajesh Banik - Complainant(s)

Versus

Rajashri Motors & 2 Others - Opp.Party(s)

Smt. B.Sur, Mr. S.Mahajan, Mr. K.Datta

10 Jun 2016

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

TRIPURA

 

FINAL ORDER IN APPEAL CASE No. A/01/2016.

 

 

1. Sri. Rajesh Banik,

S/O – Sri Narayan Ch. Banik,

Resident of Madhuban, Dukli,

P.S. Amtali, Dist. West Tripura.

 

                   ….    ….    ….    ….    Appellants/Petitioners.

 

                   Vs

 

1. Rajashri Motors (P) Ltd.

Authorised dealers of TATA Motors Ltd.

Chandrapur, Assam Agartala Road,

P.S. East Agartala, West Tripura.

      2.   Tata Motors,

            Registered Office at Bombay House,

            24 Homi Modi Street, Mumbai-400001

            And its Regional Office at

            Rene Tower 3^rd Floor, 1842 Rajdanga main Road,

            Kolkata-700107.

 

3. Tata Motors Finance Ltd.

A Division of Tata Motors Ltd.

Agartal Branch Office at Kashipur,

Chanpur Math, behind Nilandri Motors,

Assam- Agartala road, P.S. East Agartala,

Dist. West Tripura.

                              ….    ….    ….    ….    Respondents/Opposite Parties.

 

 

PRESENT

 

HON’BLE MR.JUSTICE S.BAIDYA,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR.NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

For the Appellants                   :   Smt. B.Sur, Mr. S.Mahajan, Mr. K.datta,  Adv.

For the Respondent No.1          :   Mr. Raju data, Smt. Ashmita Banik, Adv.

                   No.2 & No.3         :   Mr. A.L Saha, Mr. K. Nandi, Mr. A.Saha, Adv.

Date of Hearing             :   13.05.2016.

Date of delivery of Final Order :  

 

           The record is put up for order. This order has arisen out of the hearing on the application filed under proviso to section 15 of the Consumer Protection Act, 1986 for condoning the delay of 526 days in preferring the appeal against the judgment dated 18.07.2014 passed by the Ld. District Forum, West Tripura, Agartala in case no.CC-11/2008 and the written objection filed by the respondent no.2 for the respondent nos.2 & 3. It further appears that although the written objection against the application for condonation of delay has also been filed by the respondent no.1, but none appeared to submit anything on the date of hearing of the condonation application i.e. on 13.05.2016.

 

           It is averred in the condonation application filed by the appellant-complainant that the complainant received the copy of the judgment dated 18.07.2014 passed in CC-11/2008 from his Ld. advocate on 21.07.2014 who received the same on same date. It is also averred that the Ld. Counsel asked for 7 (seven) days’ time to consult with the settled position of law for preferring the appeal and after seven days when the complainant visited the chamber of his lawyer, he was informed that there are good grounds to prefer the appeal, but he was asked for an amount of Rs.20,000/- to meet the different expenses in filing the appeal to which the complainant expressed his inability to pay such amount as he is an unemployed youth and had lost his only source of earning.

 

           It is also averred that the lawyer of the complainant handed over the brief to him and thereafter the complainant made contact with six other lawyers of Tripura Bar Association, Agartala for preferring the appeal, but none of those lawyers’ even on request of the complainant agreed to accept any lesser amount as lawyer’s fee and in that way 60 (sixty) days time had been elapsed.

 

          It is also averred that on 27.09.2014, the complainant started to work as a daily rated worker in the construction and demolition of puja pandal during the month of September and October, 2014 for his livelihood and after completion of puja works, the complainant-petitioner contacted with his engaged counsel on 02.11.2014 and in the meantime, further 37 (thirty seven) days time had been elapsed.

 

        It is also averred that the petitioner then contacted with his engaged counsel Mr. Kausik Datta who could not manage time for consultation for his remaining busy in performing his marriage ceremony which was to be solemnized on 18.11.2014 and asked the petitioner to consult him in the second week of December, 2014.

 

        It is also averred that the petitioner consulted his engaged counsel on 13.12.2014 who advised him to contact with the Legal Service Authority for appointment of lawyer for the petitioner and in that way, further 40 days time had been elapsed.

 

       It is also averred that the petitioner on 15.12.2014 went to the office of the District Legal Services Authority, West Tripura, Agartala and narrated the fact and then the petitioner was asked by that Authority either to furnish BPL card or an income certificate for getting the benefit of free legal aid on 29.12.2014 and in that way, further 16 days time had been consumed.

       It is also averred that the petitioner tried to get an income certificate and for that, further 11 days time had been elapsed. It is also averred that the petitioner contacted with one advocate’s clerk namely Ripan Acharjee for securing the said income certificate from the Sub-Divisional Magistrate, but after the expiry of about 2 (two) months, that advocate’s clerk informed the petitioner on 09.03.2015 about his inability to secure such income certificate.

 

      It is also averred that finding no alternative, the petitioner consulted his engaged counsel on 10.03.2015 who agreed to act for him with an amount of Rs.15,000/-, but thereafter the petitioner’s sister’s marriage was held on 27.04.2015, but due to financial crisis he could not collect the said amount of Rs.15,000/- also.

 

      It is also averred that the petitioner thereafter met his Ld. Counsel on 06.05.2015 and in that way, further 58 days time had been elapsed and then the petitioner started to work as a private driver in a commercial vehicle for collecting money required for preferring the appeal, but after meeting the family expenses he could not collect the same and thereafter the petitioner again went to the house of his Ld Counsel on 16.09.2015, but at that time his Ld. Counsel was out of station and returned to Agartala in the last week of September, 2015 and by this time, further 132 days time had been elapsed.

 

     It is also averred that thereafter the petitioner started to work in the puja pandal as a daily rated worker (electrician) to collect the requisite money and in that way, further 64 days time had been elapsed.

 

     It is also averred that the petitioner somehow collected Rs.3,000/- and paid the same to his counsel on 19.12.2015 as the initial expenditure for preferring the appeal and in that way, further 38 days time had been elapsed without fault of the petitioner.

 

     It is also averred that on 20.12.2015, the petitioner’s engaged Counsel Mr. K. Datta handed over the brief to his colleague lawyer Mr. S. Mahajan for consultation and drafting the memorandum of appeal, but the said newly engaged Counsel Mr. S. Mahajan went on tour taking the advantage of holidays in the High Court and the Subordinate Courts and returned to Agartala on 02.01.2016 and thereafter the petitioner came to the court on 25.01.2016 to swear this affidavit and in this way again 37 days time had been elapsed.

 

    It is averred that as per law of limitation, the time to prefer appeal from a judgment of the Ld. District Forum is 30 days and the appeal ought to have filed on 16.08.2014, but it has been filed on 25.01.2016 i.e. after 526 days due to the poverty of the appellant-petitioner and hence, the petitioner- appellant has prayed for condoning the delay having satisfactory explanation for getting such delay condoned so that the petitioner-appellant may get an opportunity to agitate his grievances before this Commission in the appeal.

 

    The respondent no.1 filed the written objection against the condonation application after serving a copy thereof to the Ld. Counsel for the appellant-petitioner, but neither the respondent-opposite party nor its Ld. Advocate is found present on the date of hearing of the condonation application. However, the respondent no.1 submitted written objection alleging that the appellant-petitioner was very much negligent and the delay so explained had no basis to get the same condoned.

 

    The written objection filed by the respondent no.2 for the respondent nos.2 & 3 clearly states that the complainant gave an elaborate explanation as to how the delay of 526 days time was caused in preferring the appeal, but none of the said explanations is satisfactory and legally acceptable. It is further stated that the appellant-petitioner who purchased TATA Diesel Mini Truck for an amount of Rs.5,59,901/- after securing loan from the respondent no.3 TATA Finance Ltd. under hire purchase agreement, cannot be believed that he could not collect an amount of Rs.20,000/- required on different counts as alleged for preferring the appeal challenging the judgment passed by the Ld. Forum.

 

     It is also averred in the said written objection that as the delay has not been explained on cogent evidences, so, the alleged explanation having no basis at all should not be accepted to condone the delay of such a long period i.e. 526 days in preferring the appeal and as such, the condonation application on merit should be dismissed.

 

     The Ld. Counsel for the petitioner-appellant submitted before us that the petitioner is an unemployed youth and he purchased the TATA Diesel Mini Truck under hire purchase agreement and also by making initial payment on taking loan from his relatives. He also submitted that the said vehicle was his only source of income for his livelihood, but as he could not earn anything from the said vehicle due to its manufacturing defect, he could not collect the said amount of Rs.20,000/- demanded by his engaged counsel to meet his expenses on various accounts for preferring the appeal and as such the appellant could not file appeal within time. He also submitted that for collecting the money required for preferring the appeal, the appellant also worked as daily rated worker and also as driver of other vehicle. He also submitted that the appellant even contacted with six other advocates for getting his appeal filed at a less expense, but could not succeed. He also submitted that the appellant even made attempt to get the free legal aid service from the District Legal Services Authority, West Tripura, but could not succeed for want of any income certificate. He also submitted that there are good grounds to succeed in the appeal if it is admitted after condoning the delay of 526 days. He also submitted that the appellant have explained satisfactorily for causing such delay of 526 days in filing the appeal and as such, the said delay should be condoned after accepting the explanation of delay. He also submitted that if the delay of 526 days is not condoned, the appellant will be prejudiced highly, in spite of the fact that there are good grounds to succeed in the appeal.

 

     The Ld. Counsel for the respondent nos. 2 & 3 submitted that it is not at all believable that the appellant could not collect Rs.20,000/- required for preferring the appeal when the said person had the financial capability to consult six other advocates, obviously on payment of lawyers’ consultation fees.  He also submitted that it is true that the petitioner-appellant gave elaborate explanation for causing such delay, but such long explanation of delay is practically without any merit and satisfactory. He also submitted that it is not a matter of delay of 15-20 days, but there occurred a delay of 526 days and in such a case, delay must be explained satisfactorily and with cogent evidence, but the appellant miserably failed to adduce any cogent and believable evidence in support of such explanation for getting the delay of 526 days condoned. He also submitted that he has strong objection to condone such a long period of delay. He also submitted that as the explanation so given for causing delay of 526 days for preferring the appeal is without any basis and satisfactory, the application for condonation of delay having no merit should be dismissed.

 

       Before entering into the merit of the condonation matter, we like to reproduce the provision of section 15 of the Consumer Protection Act, 1986 which runs as follows:-

 

       “15. Appeal.-Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed:

 

    Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:

 

    Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent of that amount or twenty-five thousand rupees, whichever is less.”

 

      From the above section 15 of the C.P. Act, it appears that the appeal against the order of the District Forum is to be preferred before the State Commission within a period of 30 days from the date of the order. As per first proviso to section 15 of the C.P. Act, the State Commission may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that there was sufficient cause for not filing it within that period. In the instant case, there is a delay of 526 days in filing the appeal. In this regard, going through the judgment reported in (1987) 2 Supreme Court Cases 107 in civil Appeal No-460 of 1987 arising out of the First Civil Appeal No.54 of 1985 of Jammu & Kashmir High Court referred by the Ld. Counsel for the appellant, it appears that the Hon’ble Apex Court is of the view that the courts should adopt a liberal and justice-oriented approach while disposing of the application for condoning the delay in filing the appeal. It further appears that in the referred case, there was a delay of only 4 (four) days. The Hon’ble High Court of the state of Jammu & Kashmir dismissed the appeal on ground of bar of limitation, but in the appeal the Hon’ble Apex Court has been pleased to hold that the High Court erred in dismissing the appeal on hyper technical ground of bar of limitation. Referring to the above judgment, the Ld. Counsel for the appellant submitted before us that following the principle of law enunciated by the Hon’ble Apex Court, the delay of 526 caused in the instant case in preferring the appeal should be condoned.

 

     The Hon’ble Apex Court in a case between Ramlal and others Vs Rewa Coalfields Ltd. reported in AIR 1962 Supreme Court 361 quoted by the Hon’ble National Commission in the Judgment passed in Revision Petition no.2360/2013 has been pleased to observe:

 

    “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.”

 

     The Hon’ble Supreme Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority reported in IV (2011) CPJ 63 (SC) as quoted in the order passed in revision petition no.2360/2013 by the Hon’ble National Commission, has been pleased to observe 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.”

 

     Going through all the three above mentioned referred cases, we are of the view that the order of the Hon’ble Jammu & Kashmir High Court was set aside and allowed the prayer for condonation of delay of 4 (four) days in preferring the appeal by the Hon’ble Apex Court, but that principal of law is found not applicable in the instant case, simply because there was a delay of only 4 (four) days, but in the instant case, there is a long delay of 526 days without any satisfactory explanation or sufficient cause. Furthermore, going through the application filed under proviso to section 15 of the C.P. Act, we are also of the view that the petitioner-appellant has taken the matter of condonation of delay in a very casual manner. It also speaks that the petitioner-appellant was not at all diligent, serious and active in preferring the appeal. Under the C.P. Act, 1986 a special period of limitation has been prescribed for filing the appeal. The said Act provides for expeditious adjudication of the consumer disputes. The Hon’ble Apex Court has been pleased to hold that the object of expeditious adjudication of the consumer disputes will get defeated, if the court is to entertain highly belated petition filed against the orders of the consumer foras. Be that as it may, we find that the petitioner-appellant elaborately explained as to how the said 526 days of delay in filing the appeal was caused, but that explanation, in our view, is found not satisfactory at all. It has already been mentioned that the petitioner-appellant was not at all diligent, serious and active in preferring the appeal. That being the position, we are of the view that the petitioner-appellant could not make out any sufficient cause for getting the delay of 526 days condoned in preferring the appeal and as such, we are not satisfied at all with the alleged explanation of delay.

 

    

In view of the above, we are of the opinion that having no sufficient cause for condoning the delay of 526 days in filing the appeal, the application filed under proviso to section 15 of the C.P. Act, 1986 stands dismissed. As the application for condonation of delay in filing the appeal is dismissed on the bar of limitation, the appeal preferred by the appellant is not legally maintainable and as such, it is also dismissed.  

 

  

PRESIDENT

 

MEMBER

 

MEMBER