NCDRC

NCDRC

RP/1675/2012

KESHAV BANSAL - Complainant(s)

Versus

UNION OF INDIA & 6 ORS. - Opp.Party(s)

IN PERSON

04 Feb 2014

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 1674 OF 2012
 
(Against the Order dated 11/01/2012 in Appeal No. 1908/2011&3239/2011 of the State Commission Punjab)
1. MEENA
W/o Sh Nar Singh R/o Street No-2,Krishna Basti
Sangrur
Punjab
...........Petitioner(s)
Versus 
1. UNION OF INDIA & 6 ORS.
Through Secretary, Telecom & Post, Sanchar Bhawan
Sangrur
Punjab
2. Superintendent
Post Office Main
Sangrur
Punjab
3. Post Office Main
New Grain Market, Post Officer
Sangrur
Punjab
4. Sh Gurmukhpal Singh
New Grain Market, Post Officer
Sangrur
Punjab
5. Akhil Gupta S/o Sh B.S Gupta
Street No-2 Krihna Basti
Sangrur
Punjab
6. District Saving Officer
Outisde Sunami Gate
Sangrur
Punjab
7. State Of Punjab
Through Deputy Commissioner
Sangrur
Punjab
...........Respondent(s)
REVISION PETITION NO. 1675 OF 2012
 
(Against the Order dated 11/01/2012 in Appeal No. 1909/2011&3240/2011 of the State Commission Punjab)
1. KESHAV BANSAL
S/o Sh Nar SIngh R/o Street No-2 Krishna Basti
Sangrur
Punjab
...........Petitioner(s)
Versus 
1. UNION OF INDIA & 6 ORS.
Through Secretary, Telecom & Post, Sanchar Bhawan
New Delhi
Delhi
2. Superintendent
Post Office Main
Sangrur
Punjab
3. Sub Post Master,
New Grain Market, Post Officer
Sangrur
Punjab
4. Sh Gurmukhpal Singh
New Grain Market, Post Officer
Sangrur
Punjab
5. Akhil Gupta S/o Sh B.S Gupta
Street No-2 Krihna Basti
Sangrur
Punjab
6. Akhil Gupta S/o Sh B.S Gupta
Street No-2 Krihna Basti
Sangrur
Punjab
7. District Saving Officer
Outisde Sunami Gate
Sangrur
Punjab
8. State Of Punjab
Through Deputy Commissioner
Sangrur
Punjab
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
 HON'BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner :
For the Petitioner : Mr. Keshav Bansal, Son of the petitioner
In R.P. 1674/2012
For the Petitioner : In person
In R.P. 1675/2012
For the Respondent :
For the Respondents 1 to 4: Mr. Ravinder Pal Singh, Advocate
For the Respondent-5 : Ex-Parte
For the Respondents 6 & 7 : Mr. T.S. Negi, Dy. Director

Dated : 04 Feb 2014
ORDER

PER SURESH CHANDRA, MEMBER Both the above revision petitions involve identical question of law and are based on similar facts. Hence they are being disposed of by this common order. For the sake of reference of events, the leading case is Revision Petition No. 1674 of 2012. 2. This revision petition has been filed by Smt. Meena wife of Shri Nar Sing R/o Sangrur challenging the order dated 11.1.2012 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh whereby the State Commission dismissed the M.A. No.3239 of 2011 filed by the petitioner in F.A. No.1908 of 2011 for condonation of delay and consequently dismissed her First Appeal as well. The petitioner who is the original complainant had filed the first appeal challenging the order dated 22.12.2005 passed by the District Forum, Sangrur in complaint No.425 by which the District Forum, without expressing any opinion on the points raised in the complaint, dismissed the complaint leaving it open to the complainant/petitioner to seek appropriate remedy before the Civil Court or any other tribunal/authority, if so advised. 3. Briefly stated, the facts which are relevant for disposal of this case are that the petitioner/complainant had opened a TD account in the New Grain Market Post Office, Sangrur (OP/Respondent No.3) for which sums of Rs.50,000/- and Rs.35,000/- were collected from her by OP No.5/ Respondent No.5 Shri Akhil Gupta, Post Office Agent by way of initial deposits in these 2 TD accounts. Necessary entries of these deposits were made in the passbooks issued by OP Nos.3 & 4. Lottery coupons as permissible on these deposits were issued by OP No.6. Complainant deposits in these accounts were verified and on that basis, OP No.6 had prepared the case for agentscommission payable to OP No.5. Later on, OP No.3 informed the complainant that OP No.5 (Post Office Agent) had not deposited the entire amounts of Rs.50,000/- and Rs.35,000/- in her TD accounts. It is the case of the complainant that since the deposits had been made through the authorized agent of the OP department and entries of the deposits had been verified by the post office, the OP is estopped from taking the plea of non-deposit of the full amounts in the post office by OP No.3 and the OPs are bound to pay the total amounts of Rs.50,000/- and Rs.35,000/- along with permissible interest. Since she was denied her claim by the OPs, alleging it to be a deficiency in service on their part, the petitioner filed a consumer complaint before the District Forum against the OPs. 4. On notice, the OP department resisted the complaint and OPs No.1 to 3 pleaded that amounts of Rs.5,000/- each only stood deposited in the two accounts in the name of the complainant/petitioner and similar was the position reflected in her relevant ledger entries. It was also submitted that the application forms submitted by the complainant for opening the accounts and the pay-in-slips also showed sums of Rs.5,000/- each only deposited in the two accounts. The Opposite parties were, therefore, willing to repay the amounts of Rs.5,000/- with permissible interest in each account of the complainant. It was also pleaded on behalf of the OP Department that in view of the complaints lodged by the complainant, inquiries were held by the parties and it was found that fraud had been committed by OP No.5 (Post Office Agent) with depositors and public notice had been issued by the petitioner putting the depositors on caution. The department also took the plea that for any act of misappropriation of OP No.5, the responsibility rested with the State Government (OP No.6 & 7). The other OPs also denied any liability on their part taking the plea that the matter in dispute has been looked into by the police following the filing of an FIR No.219 on 6.6.2004. OP No.5 who appeared initially before the District Forum had to be proceeded ex parte since he absented himself thereafter. 5. After appraising the evidence adduced before it and hearing the parties, the District Forum held that the matter required production of elaborate evidence including opinion of document expert and the same exercise did not seem to be feasible in the summary proceedings before the District Forum under the Consumer Protection Act, 1986. The District Forum, therefore, vide its aforesaid order dismissed the complaint leaving it open to the complainant/petitioner to seek remedy before the Civil Court as indicated above. 6. Aggrieved of the aforesaid order of the District Forum, the complainant filed an appeal before the State Commission but since there was a delay of 2167 days, the complainant also filed M.A. for condonation of the delay along with the appeal. It was submitted by the complainant in her application that after getting a copy of the order of the District Forum dated 22.12.2005, she had engaged one Shri R.G. Singh Saini, Advocate for filing the appeal against the order of the District Forum and her husband also made necessary payments to the Advocate for doing the needful. Thereafter, in spite of the complainant and her husband constantly enquiring about the status of the appeal from Shri Saini, he kept them in the dark and eventually informed the complainant that he could not file the appeal due to some family problem. The complainant then asked Shri Saini to return the documents after which she engaged another counsel and handed over the papers for filing the appeal and it was in this process that the delay of 2167 days was caused which was neither intentional nor deliberate but because of omission on the part of her counsel Shri Saini. An affidavit was filed by her in support of her application for condonation of delay. The State Commission, however, was not convinced about the reasons put forth by the complainant for condoning the inordinate delay in filing the appeal and hence dismissed the application. With the dismissal of the application for condonation of delay, the main appeal also stood dismissed as barred by limitation. Thus, in these circumstances the petitioner has filed this revision petition praying for setting aside of the impugned order and condonation of the delay in filing the appeal and hearing the matter on merits. 7. We have heard Shri Keshav Bansal son of the petitioner, appearing on behalf of the petitioner, Shri Ravinder Pal Singh, Advocate for respondent Nos. 1 to 4 and Shri T.S. Negi , Deputy Director appearing on behalf of the respondent Nos. 6 & 7. Respondent No.5 did not appear and hence has been proceeded ex parte. It has been submitted by the representative of the petitioner that the delay of 2167 days even though is a long period, was caused on account of peculiar circumstances in which in spite of the petitioner and her husband pursuing the matter with her counsel, they were kept in the dark about filing of the appeal. He submitted that on her part, the petitioner had taken prompt action and handed over the papers along with fees to her advocate who kept on giving wrong information about the filing of the appeal but later eventually admitted that the appeal had not been filed and returned the brief because of his family problems. He submitted that this was absolutely shocking but the petitioner could not help the situation except engaging another counsel and again taking necessary action to file the appeal. He said that though there was inordinate delay in filing the appeal but, as would be seen from the circumstances of this case, it was neither intentional nor deliberate but because of omission on the part of her counsel for which the petitioner should not be punished. He submitted that the petitioner has good case on merits and grave injustice would be caused to her if the impugned order is allowed to stand and the matter is not heard on merits. 8. In regard to merits of the case, he submitted that few other similar cases where the same Post Office Agent Shri Akhil Gupta had allegedly committed fraud and the depositors had been duped, the National Commission and the Fora below had decided in favour of such depositors by accepting their complaints against the OP Department. He has specifically referred to the common order dated 14.5.2009 passed by this Commission in R.P. Nos. 3552 of 2008 and 3553 of 2008 by which the National Commission upheld the concurrent finding of the Fora below accepting the complaints of the concerned depositors and held the OP Postal authorities and the District Collector liable to pay the amounts in question to the depositors. He submitted that the merits of the present two complaints and those already decided by the National Commission in the revision petitions (supra) are similar and hence the decision of the National Commission would be applicable to the present cases as well. He, therefore, pleaded that even though the period of delay in filing the appeal by the petitioner before the State Commission is long, it should be condoned keeping in view the helplessness of the petitioner and the peculiar circumstances in which delay occurred so that her case is decided on merits on the same lines as in the case of other similarly placed depositors covered by the revision petitions (supra) and no injustice is done to her. 9. Per contra, learned counsel for the respondent Nos. 1 to 4 and the representative of the respondent Nos. 6 & 7 submitted that the impugned order passed by the State Commission is a well-reasoned order in which the State Commission has already considered the submissions of the petitioner at length and then rejected the request for condonation of the inordinate delay of 2167 days keeping in view the recent judgements of the Apex Court in the cases of State Bank of India Vs. B.S. Agricultural Industries (I) [2009 CTJ 481 Supreme Court (CP)] and V.N. Shrikhande (Dr.) Vs. Anita Sena Fernandes [2011 CTJ 1 (Supreme Court) (CP)]. They, therefore, pleaded that the revision petition is liable to be dismissed. 10. We have given our anxious thought to the rival contentions and have also perused the record. Two issues have arisen for our consideration in this case. The first and foremost issue is as to whether in the given facts and circumstances, the State Commission was justified in refusing to condone the delay of 2167 days in filing the appeal and consequently in dismissing the main appeal as time-barred. The second issue pertains to the merits of the case emanating from the record. We may note that while the State Commission has not looked into the merits of the case and dismissed the first appeal as barred by limitation, the District Forum by its order dated 22.12.2005 had simply disposed of the complaint, without expressing any opinion on merits, leaving it open to the petitioner/complainant to seek remedy before the appropriate Civil Court or any other tribunal/authority, if so advised. Reverting to the first issue pertaining to the inordinate delay of 2167 days before the State Commission in filing the appeal, the impugned order indicates that the circumstances in which filing of the appeal got delayed by such a long period were pleaded before the State Commission as well and the State Commission has recorded the same in great detail as per the narration made by the petitioner. However, the State Commission was not satisfied with the explanation given by the petitioner and hence refused to condone the delay and dismissed the appeal. It appears from the observations of the State Commission made in paras 15 and 16 of the impugned order that in the considered opinion the State Commission acts pleaded by the applicant appeared to be a concocted version and the applicant has failed to explain the delay of more than 6 years in filing the appeal. Therefore, the delay has not been properly explained It is important to note that the version of the petitioner explaining the delay before the State Commission in filing the appeal is same as was submitted by her before the State Commission. Undoubtedly, it is a case of extraordinary delay of 6 years during which the then counsel Shri Saini kept on dragging the matter without actually filing the appeal. It is nobody case that the petitioner was not in touch with her counsel but it would now transpire that it was a mistake on her part to have relied on the counsel and believing him for such a long time but in our considered view, it would be unfair to assume that she would do it knowingly and deliberately for the simple reason that she would not stand to gain by such delay. Even though the period of delay is unusually long, we are of considered view that this is a fit case which ought to have been considered in the light of the ratio and the guidelines laid down by their Lordships of the Apex Court in the celebrated judgment delivered by them in the case of Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji and Ors. [(1987) 2 SCC 107]. In this context, we may reproduce the observations made by their Lordships in this case thus: . The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on erits The expression ufficient causeemployed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As Against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. very day delay must be explaineddoes not mean that a pedantic approach should be made. Why not every hour delay, every second delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 11. In addition to the aforesaid case of Mst. Katiji and Ors. (supra), we may also reproduce the following observations of the Apex Court in the case of N. Balakrishnan Vs. M. Krishnamurthy [(1998) 7 SCC 123]:- . The reasoning of the learned single Judge of the High Court for reaching the above conclusion is that the affidavit filed by the appellant was silent as to why he did not meet his advocate for such a long period. According to the learned single Judge: "If the appellant was careful enough to verify about the stage of the proceedings at any point of time and had he been misled by the counsel then only it could have been said that due to the conduct of the counsel the party should not be penalised." 7. Learned Single Judge then observed that when the party is utterly negligent, he cannot be permitted to blame the counsel. Learned Single Judge has further remarked that: "A perusal of the affidavit does not reveal any diligence on the part of the respondent in the conduct of the proceedings. When already the suit has been decreed ex-parte, the respondent ought to have been more careful and diligent in prosecuting the matter further. The conduct of the respondent clearly reveals that at any point of time, he has not relished his responsibility as a litigant." 8. The appellant’s conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences. 9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court. 10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause. 11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. We are of considered view that the present case is a fit case for applying the guidelines reproduced above at Sl. Nos. 1, 2, 5 and 6 in the case of Mst. Katiji and Ors. (supra). We have no manner of doubt that the observations of the Apex Court in the case of N. Balakrishnan (supra) are also squarely applicable to the facts and circumstances of the present case. Keeping this aspect in view, the State Commission ought to have condoned the delay and considered the appeal on merits particularly keeping in view the fact that the petitioner had specifically brought to its notice that a number of similar cases with identical facts had been decided in favour of the complainants in those cases by the National Commission. Perusal of the legal notice dated 7.6.2011 sent by the then counsel Shri R.G. Singh Saini to the Dy. Commissioner, Sangrur, Punjab clearly demonstrates that on merits, the petitioner had a strong case and hence this was reason enough to condone the delay and to consider the matter on merits. Since the State Commission failed to do so, we agree with the learned counsel for the petitioner that grave injustice would be done to the petitioner if the impugned order is not set aside. In the circumstances, we hereby set aside the impugned order of the State Commission and condone the delay of 2167 days in filing the appeal before the State Commission by the petitioner. 13. As stated above, the District Forum did not decide the complaint on merits but directed the petitioner to approach the appropriate Civil Court or other forum. We do not agree with the view taken by the District Forum. In fact, it should have dealt with the matter on merits of the case as was done in other similar cases. Strangely, the other similar cases referred to by the petitioner were decided on merits by the same District Forum at Sangrur which directed the petitioner to seek remedy before some other appropriate forum. In view of this, so far as the second issue is concerned, we have an option to remit this complaint back to the District Forum, Sangrur for deciding the matter on merits after hearing the parties afresh. Such a decision of the District Forum would of course be subject to the normal judicial course prescribed under the Consumer Protection Act, 1986. However, we do not wish to ignore the fact that this is an old matter in which the complaint came to be filed in the year 2005. Besides this, we may note that this Commission has already decided other similar cases involving identical questions of law and fact and as such this old matter can be decided finally by us rather than remitting it to the District Forum which would further delay the final disposal of the complaint. We, therefore, proceed to take a view on merits of the case. 14. Coming to the merits, we find that the facts of this case discussed above are identical to the facts obtaining in R.P. Nos.3551, 3552 and 3553 of 2008 decided by this Commission on 14.5.2009. A copy of the order of this Commission in those three revision petitions is placed on record. In those revision petitions, however, on similar complaints filed by the respective complainants, the District Forum had allowed the complaints against OPs 1, 2, 3, 5 and 7 and dismissed the same against OPs 4 and 6 in those cases. Aggrieved by the order of the District Forum, the Union of India as well as the State of Punjab appeared before the State Commission which allowed the appeal of the Union of India and dismissed the appeal of the State of Punjab. Dissatisfied with the order of the State Commission, the State of Punjab filed the three revision petitions before the National Commission which upheld the order of the State Commission and dismissed the appeal of the State Government. Consequently, the National Commission by its order dated 14.5.2009 finally confirmed the order of the State Commission upholding the order of the District Forum as modified by the State Commission in regard to the payment of compensation by the OPs. We do not see any reason as to why these two cases should also not be decided in a similar way in the light of the order of this Commission dated 14.5.2009. Accordingly, we set aside the common order dated 22.12.2005 of the District Forum in complaint Nos. 425 and 426 of 2004 and the order dated 11.1.2012 passed by the State Commission in FA Nos. 1908 and 1909 of 2011 and allow the revision petitions against the Government of Punjab and dismiss the same against respondent Nos. 1, 2, 3, 4, and 6. The Government of Punjab is directed to pay to the petitioner/complainant in each case a sum of Rs.85,000/- respectively along with interest on the premium deposited as per rules along with compensation of Rs.20,000/- for mental agony and harassment caused to the petitioners/complainants in addition to Rs.5,000/- as litigation expenses. This order shall be complied within a period of one month by the respondent No.7, namely, State of Punjab through Dy. Commissioner, Sangrur failing which, the respondent shall be liable to pay interest @ 9% p.a. till the date of actual release of the amount calculated for the period from the date on which the period of 30 days expires.

 
......................J
AJIT BHARIHOKE
PRESIDING MEMBER
......................
SURESH CHANDRA
MEMBER

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