Tripura

StateCommission

A/16/2019

THE MANAGING DIRECTOR INDIGO, GURGAON - Complainant(s)

Versus

SMT. TRIPTI BHATTACHARYYA - Opp.Party(s)

Mr. D. BHATTACHARYA

21 Aug 2019

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Case No.A.16.2019

 

1. The Managing Director, IndiGo,

Gurgaon, Level 1, Tower - C,

Global Business Park, Meheruli,

Gurgaon Road, 122002, Haryana, India.

 

2. Station Manager, 

IndiGo, Agartala Airport, 

Agartala, Tripura - 799009.

 

3. Station Manager, 

IndiGo, Hyderabad Airport,

Hyderabad, Telengana - 500409.

… … … … Appellant/Opposite Parties.

 

•  

 

 

1. Smt. Tripti Bhattacharyya,

W/o Sri Swapan Kumar Bhattacharyya,

R/o House No.77, Jagannath Bari Road,

Near Old R.M.S. Chowmohoni,

P.O. Agartala, P.S. West Agartala,

West Tripura, Tripura - 799001.

 

2. Sri Swapan Kumar Bhattacharyya,

R/o House No.77, Jagannath Bari Road,

Near Old R.M.S. Chowmohoni,

P.O. Agartala, P.S. West Agartala,

West Tripura, Tripura - 799001.

… … … …Respondent/Complainants.

 

 

Present

 

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

Mr. Narayan Ch. Sharma,

Member,

State Commission

 

 

For the Appellants:                                  Mr. Kushal Deb, Adv.

For the Respondents:                                Respondent/Complainant No.2 in person.

Date of Hearing & Delivery of Order:     21.08.2019.

O R D E R [O R A L]

U.B. Saha, J,

 

The instant appeal is filed by the appellants, Managing Director, IndiGo and others (hereinafter referred to as opposite parties) against the judgment dated 18.04.2019 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.81 of 2018 whereby and whereunder the learned District Forum allowed the complaint petition filed by the respondents (hereinafter referred to as complainants) directing the opposite parties to pay Rs.15,000/- for loss of wearing apparels, costs of medicine, cost of garments etc., Rs.3,000/- being the value of trolley bag and Rs.20,000/- for causing mental agony and harassment together with Rs.3,000/- towards cost of litigation, in total Rs.41,000/-. The aforesaid amount is to be paid within a period of two months from the date of judgment, failing which; the compensation amount will carry interest @9% per annum till the payment is made in full. The appellant-opposite parties have also filed an application for condoning the delay of 38 days in preferring the appeal.     

2. Today the matter is fixed for order on condonation petition.
3. Heard Mr. Kushal Deb, Ld. Counsel appearing for the appellant-opposite parties as well as Sri Swapan Kumar Bhattacharyya, respondent-complainant no.2 in person.
4. Brief facts needed to be discussed are as follows:-

Complainant no.2, Sri Swapan Kumar Bhattacharyya who is the husband of the complainant no.1, Smt. Tripti Bhattacharyya is suffering from an acute inflammatory bowel disease and he was referred to the Asian Institute of Gastroenterology, Hyderabad by the Agartala Medical College and GBP Hospital, Agartala for better investigation and treatment. Accordingly, the complainant no.2 along with his escort i.e. his wife, the complainant no.1 on 12.03.2018 went to Hyderabad by IndiGo flight 6E 373 for availing the medical treatment at the Asian Institute of Gastroenterology. After reaching at Hyderabad Airport, the complainants did not find their trolley bag which they had booked in Agartala while they reported for check-in at the IndiGo counter. The tag number of the baggage which they had booked at the time of check-in is 2985757. They immediately reported the matter to the IndiGo staff at Hyderabad Airport who enquired about the said bag by taking the IndiGo Baggage tag pasted with the boarding pass, but the staff of the IndiGo could not find it out and he had assured the complainants to carry on further search for tracing out the bag. The complainant no.2 at that time lodged a verbal complaint which was reduced into writing in a prescribed format vide Property Irregularity Report (PIR). The complainants have stated in their complaint that the missing trolley bag is black coloured and it was containing medical papers, documents, medicines and other essential domestic articles to be used at Hyderabad where they had to stay till 20.03.2018 for treatment of the complainant no.2 at the Asian Institute of Gastroenterology. The complainant no.2 tried several times while staying at Hyderabad to make contact with the IndiGo staff intending to procure the bag but all his efforts went in vain. The complainants did not get back their trolley bag at Hyderabad. On 20.03.2018, both the complainants returned to Agartala by IndiGo connecting flight nos.6E 872 and 6E 196. The complainants further alleged that due to non-delivery of their trolley bag they were very much embarrassed and suffered harassment and mental agony. The complainant no.2 could not take his life saving medicines in time which also aggravated his mental and physical condition. During their stay at Hyderabad, the complainants under compelling compulsion had to purchase new garments for them and other essential domestic articles which got lost due to the missing of their trolley bag. The complainants again alleged that as they did not receive any response in regard to the recovery of their missing trolley bag the complainant no.2 on 17.05.2018 issued a registered letter addressed to the Station Manager, IndiGo, Agartala for taking necessary steps for recovery of the missing trolley bag. The registered letter was duly delivered on 18.05.2018 to the Station Manager, IndiGo as per report submitted by the Post Master, Agartala Head Office vide his communication by a letter No.799001-02887 dated 20.06.2018. As the Station Manager, IndiGo, Agartala Airport i.e. the appellant-opposite party no.2 did not respond, the complainants being aggrieved have filed the complaint petition before the learned District Forum claiming Rs.45,700/- being the cost of articles containing in the lost trolley bag and Rs.50,000/- (Rs.25,000/- each) for causing unnecessary harassment and mental agony to both the complainants, in total Rs.95,700/-.

5. The appellant-opposite parties had appeared through their engaging Counsel. Though several opportunities were provided, but the opposite parties could not submit their written statement in time. So, the case was proceeded ex parte against the opposite parties and as per order dated 01.02.2019, the next date was fixed for submission of examination-in-chief by way of affidavit by the complainant.
6. The complainant no.2 examined himself as P.W.1 and submitted his examination-in-chief and also produced some documents which were marked as Exhibit - 1 series.
7. The appellant-opposite parties neither produced any oral evidence nor any documentary evidence in support of their case. Though, the Ld. Counsel for the opposite parties has cross-examined the complainant no.2 on law points.
8. The learned District Forum after considering the evidence on record passed the impugned judgment.
9. Being aggrieved by and dissatisfied with the impugned judgment, the appellant-opposite parties have preferred the instant appeal along with an application for condoning the delay of 38 days in preferring the appeal.
10.  

“

Reasons for causing delay in preferring the appeal are stated in paragraph 2 to 4 of the condonation petition which are as follows:-

 

2. That the present Application is being filed seeking condonation of delay of 38 days in filing the accompanying appeal. It is respectfully submitted that the said delay is unintentional and not deliberate, as evidenced by the reasons set out herein below.
3. That on and around 18.04.2019, the local counsel Mr. Debalay Bhattacharya, counsel on behalf of Appellants received the certified copy of the Final Order dated 18.04.2019. Inadvertently, Mr. Debalay could not send the same to the Appellants or the concerned advocate of the Law Firm at Delhi, which is handling the PAN India litigation for InterGlobe Aviation Limited. It is submitted that the Final Order dated 18.04.2019 was sent to the concerned advocate at Delhi and around May, 2019 received by them on 20.05.2019.
4. That immediately after the receipt of the Impugned Order, the concerned advocate of the law firm drafted and shared an appeal with InterGlobe Aviation Limited for its approval and after finalization of the appeal, the concerned advocate of the law firm, on and around 27.05.2019, send the same to the local counsel for filing. An executed version of the affidavit of the concerned advocate of the law firm, is annexed herewith and marked as “Annexure A/11” to the appeal.”

11. The respondent-complainants have filed an objection to the prayer for condonation of delay wherein it is stated that the Ld. local Advocate Mr. Debalay Bhattacharya received the certified copy of the final order/judgment on the very date of passing the judgment on 18.04.2019 by the learned District Forum, but a vague plea is taken that the Ld. local counsel due to inadvertence could not send the same to Law Firm of the appellants in time but on and around May, 2019 and the Law Firm on and around 27.05.2019 sent back the matter to the Ld. local Advocate. It is also not mentioned when the Ld. local Advocate received the prepared application/appeal from the appellants.
12. Mr. Deb, Ld. Counsel appearing for the appellant-opposite parties while urging for condoning the delay as sought for would contend that admittedly, the judgment was received by the opposite parties on the date itself when the judgment was delivered, but due to inadvertence of Ld. local Counsel, Mr. Debalay Bhattacharya, the same could not be sent to the appellants in time. Thus, according to him, for the fault of lawyer, party should not suffer. In support of his aforesaid contention, he has relied upon a judgment of Hon’ble Apex Court in the Secretary, Department of Horticulture, Chandigarh and Another Vs. Raghu Raj (2008) 13 SCC 395 particularly, Paragraph-28, 29 and 30, which are as follows:-

“   28. At the same time, however, when a party engages an advocate who is expected to appear at the time of hearing but fails to so appear, normally, a party should not suffer on account of default or non-appearance of the advocate.

29. In Rafiq and Another Vs. Munshilal and Another, the High Court disposed of the appeal preferred by the appellant in absence of his counsel. When the appellant came to know of the fact that his appeal had been disposed of in absence of the advocate, he filed an application for recall of the order dismissing the appeal and to permit him to participate in the hearing of the appeal. The application was, however, rejected by the High Court, inter alia, on the ground that there was no satisfactory explanation why the advocate remained absent. The aggrieved appellant approached this Court.

30. Allowing the appeal setting aside the order passed by the High Court and remanding the matter for fresh disposal in accordance with law, this Court stated;

The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law.”

He further submits that being the delay is only for 38 days, it would be proper to condone the delay.

13. Per contra, Mr. Bhattacharyya, the complainant no.2 appearing in person while objecting to the prayer for condonation of delay submits that an advocate is the agent of the party and his acts and statements made within the limits of authority given to him, are the acts and statements of the principal, i.e. the party who engaged him. He further submits that in the condonation petition, there is nothing as to which date, the Ld. local Counsel sent the impugned judgment to the concerned advocate at Delhi except mentioning that on and around in May, 2019 which was received by the appellants on 20.05.2019. Thus, there is no proper explanation and cogent reason for causing delay in preferring the appeal.
14. We have gone through the condonation petition as well as the objection and also the judgment passed by the Hon’ble Apex Court in Raghuraj (supra). It is also admitted position that the impugned judgment was received by the Ld. Counsel, Mr. Debalay Bhattacharya on the date of delivery of the judgment itself and he is also a lawyer in this case.
15. In Basawaraj & Anr. Vs The Spl. Land Acquisition Officer (Civil Appeal No.6974 of 2013), the Hon’ble Apex Court observed that “It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. ‘A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.’ The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim ‘dura lex sed lex’ which means ‘the law is hard but it is the law’, stands attracted in such a situation. It has consistently been held that, ‘inconvenience is not’ a decisive factor to be considered while interpreting a statute.”
16. ‘Sufficient cause’ is the cause for which the opposite parties could not be blamed for their filing of appeal in time. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. In other way, it can be said that "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive".
17. As per settled law, culled out from various judicial decisions, the above expression, 'sufficient cause' though deserves to receive a liberal construction, yet, a just and equitable balance has to be maintained between the right secured by the respondent as a result of the expiry of the prescribed period of limitation and the injustice of depriving the appellants of adjudication of their grievances on the merits of their appeal for causes beyond their reasonable control, which means the cause is bona fide and beyond the control of the appellants. There is no hard and fast rules what should be the 'sufficient cause' in a given case.
18. In Cicily Kallarackal Vs Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein the Hon'ble Supreme Court observed:-

“4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC), has explained the scope of condonation of delay in a matter where the special Courts /Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute(s).

5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.

6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay”.

In the aforesaid judgment Hon’ble Supreme Court has highlighted that while dealing with an application for condonation of delay the Court must bear in mind the object of expeditious disposal of consumer dispute which would get defeated if the Court was to entertain highly belated petitions.”

19. In the case of Dr. Chandrakant Parshuram Mahajan Vs. New India Assurance Co. Ltd. and others [Revision Petition No.698 of 2018] 2019 (2) CLT 366, the Hon’ble National Commission while deciding the Revision Petition held that “It is true that counsel represents the party in the proceedings, however, the case relates to the party and party is required to be vigilant and watchful for its interest in the case proceedings before any court. It seems that the complainant was not pursuing the case properly, otherwise, he should himself have contacted the counsel to know the progress of his case. Special limitation periods have been prescribed in  for speedy disposal of consumer disputes. Honble Supreme Court in , IV (2011) CPJ 63 (SC) has observed the following:

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  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.”

The Honble National Commission also considered the case of R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108 wherein the Hon’ble Apex Court 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.”

20. We are unable to agree with the submission of Mr. Deb, particularly, the case law cited by him i.e. Raghuraj (supra) as it is not fully applicable in our case as the said case is not relating to consumer disputes, rather a case regarding Civil disputes and the facts of that case is totally different than the case in hand. In that case, order was passed in absence of the lawyer, as he fails to appear and on that context, the Hon’ble Apex Court passed the order, but in the instant case, no proper explanation is given as to why the Ld. Advocate did not communicate the impugned judgment in time far too cogent reason. More so, it appears from the impugned judgment that the appellant-opposite parties did not file even written statement before the learned District Forum to contest the case.   

In view of the above, we are of the opinion that the delay in filing the instant appeal has not been properly explained and the same is also not reasonable and satisfactory as required under law. Accordingly, the condonation petition is dismissed and in consequent thereto, the appeal also stands dismissed.

Send down the records to the Ld. District Forum, West Tripura, Agartala.