Haryana

StateCommission

A/1091/2016

INDER SINGH - Complainant(s)

Versus

SHANKAR DASS JAGDISH KUMAR - Opp.Party(s)

LALIT SHARMA

17 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                First appeal No.1091 of 2016

Date of the Institution: 11.11.2016

Date of Decision: 17.01.2017

 

 

Inder Singh S/o Sh.Khayaliram, R/ovillage Kharkari Makhvan, Tehsil Tosham, Distt. Bhiwani.

                                                                             .….Appellant

 

Versus

 

 

1.      M/s Shankardass Jagdish Kumar, 119 New Anaj Mandi, Bhiwani, Lohar Bazar (Dealer) through its Manager.

2.      Dolpin (Insecticide) manufactured by:- GSP Crop Science Pvt. Ltd. 551 Phase II G.I.D. Kathwada Odhav Ahmedabad 382430 Gujarat.

3.      MIG Alphamethin (Insecticide) Manufactured by:
Devidayal (Sales) limited an ISO 9001-2000 Company) having its Registered office at: Reay road Mumbai 400010 FAC: Derol Kalol (Distpms) 389330 India.

                                                                             .….Respondents

 

 

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

 

Present:-    Mr.Gaurav Khera, Advocate counsel for the appellant.

 

O R D E R

 

R.K.Bishnoi, JUDICIAL MEMBER:

 

 

The appellant-opposite party has preferred this appeal against the order dated 19.05.2016 passed by the District consumer Disputes Redressal Forum, (in short ‘District Forum’) Bhiwani.

2.      Alongwith the appeal, appellant-opposite party has filed an application under section 5 of the Limitation Act  of 1963 (in short “Act”) for condonation of delay of  125 days wherein, it is alleged that   appellant was illiterate and poor person and he was no knowledge about the limitation of the appeal.  The delay in filing the appeal was not intentional and was due to bonafide reasons,  so the same be condoned.

3.      Arguments heard.  File perused.

4.       Learned counsel for the appellant vehemently argued  complainant was illiterate and poor person and he has no knowledge about the limitation of appeal. In this way the delay was not intentional and same may be condoned.

5.  This argument is devoid of any force. Since the complainant was  represented by the counsel and order was pronounced in his presence so it cannot be presumed that he was not aware about the order or the limitation. After the decision of the complaint he must have asked his counsel about filing of appeal.  The complainant has signed  the power of attorney and affidavit  in this appeal. It appears that plea about illiteracy has been raised just to cover the inordinate delay. 

6.  A period of 30 days has been provided for filing an appeal against the order of the District Forum. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“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 S.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 litigant who is not vigilant about his rights must explain every days delay.”

The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

 

          In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been observed:

         “We hold that in each and every case the Court has to examine whether delay in filing the special appeal 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.”

      In Ram Lal and Ors.  Vs.  Rewa Coalfields  Ltd., AIR  1962 Supreme Court 361, it has been observed;

“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.”

         

    Hon’ble Supreme Court in  Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 held as under;

“We have considered   the respective    submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same   time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”       

7.      Taking into consideration the plea raised by appellant for condonation of delay and the settled principle of law, this Commission does not find it a fit case to condone the delay of 125 days in filing of the appeal. Hence, the application of the appellant is dismissed.

8.      Qua merits it was alleged by complainant that he purchased pesticides from O.P.No.1 vide bill dated 05.08.2009.  After spraying pesticides on the crops,  tomato crop was perished and OP be directed to compensate by paying Rs.Three lacs on account of compensation as pesticide was defective.

9.      O.ps. filed separate replies controverting his averments. It was alleged by O.P. No.1  that it purchased pesticides from O.P. Nos.2 and 3, so there was no deficiency in service on it’s part. The pesticide was in a good condition and it was sold to so many persons, but, nobody complained.  There was no report showing that pesticide was of sub-standard.  Horticulture Development Officer (HDO) has mentioned in his report dated 01.04.2009 Annexure A-3 that crops were damaged after spraying pesticide. District Horticulture Officer (DHO) over-ruled the decision of HDO and stated in it’s report dated 05.05.2009 that crops were damaged due to “Jhhulsa Rog”. He did not disclose that what type of pesticide was used earlier.

10.    O.P.No.2 alleged that he failed to disclose the material facts regarding use of water, quantity of pesticide, kind of spray and time gap, which were necessary ingredients for tomato crops.  He did not use pesticide according to instructions.

11.    O.P.No.3 alleged that he (complainant) never purchased pesticide manufactured by it because he failed to produce the bills to show the make of pesticides.  The pesticides mentioned in the bill were not manufactured by it.

12. After hearing both the parties, the District Consumer Disputes Redressal Forum,Bhiwani (In short “District Forum”) dismissed the complaint vide order dated 19.05.2016.

13.    Feeling aggrieved, therefrom, complainant-appellant have preferred this appeal alleging that District Forum has not appreciated the law and facts properly.

14.    Arguments heard. File perused.

15.    There is no evidence on the file to show that the crop was burnt due to the use of this pesticide.  As per report EX.C-2 mentioned in impugned order concerned official requested to depute some horticulture official to help the complainant. When it is no-where mentioned or proved that the crop was burnt due to this reason, it cannot be presumed that O.Ps. were at fault.  Findings of learned District Forum are well reasoned, based on law and facts and cannot be disturbed. Resultantly, appeal fails and the same Is hereby dismissed in limine.

 

January 17th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

S.K.