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2019 DIGILAW 150 (HP)

Accolab Equipment v. Charanjit Datta

2019-01-11

P.S.RANA, VIJAY PAL KHACHI

body2019
ORDER : P.S. Rana, President 1. Present order shall dispose of application filed for condonation of delay of 210 (Two hundred ten) days in filing appeal qua order passed by Learned District Forum in Consumer Complaint No. 183/2016 decided on dated 18.07.2017 titled Dr. Charanjit Datta v. M/s. Accolab Equipment and others. Brief facts of matter:- 2. Complainant filed consumer complaint under Section 12 of Consumer Protection Act 1986 against opposite parties. Learned District Forum disposed of consumer complaint No. 183/2016 on dated 18.07.2017. Learned District Forum ordered that opposite parties would rectify the defects in the Otcar and Air Handling Unit free of costs within a period of thirty days from the date of receipt of copy of order. Learned District Forum further ordered that opposite parties would pay Rs. 10000/- (Ten thousand) as compensation to the complainant for mental harassment. Learned District Forum further ordered that in addition opposite parties would also pay litigation costs to the tune of Rs. 3000/- (Three thousand) to the complainant. 3. Feeling aggrieved against order dated 18.07.2017 passed by learned District Forum opposite parties filed present appeal alongwith application for condonation of delay in filing appeal before State Commission. As per registry report there is delay of 210 (Two hundred Ten) days in filing appeal. 4. Applicants pleaded in the condonation application that final order came to the knowledge of applicants when applicants received notice of execution proceedings on dated 15.11.2017. It is pleaded that thereafter applicant No. 2 contacted the advocate at Shimla (H.P.) in the last week of February 2018. It is further pleaded that applicants were advised to bring the record of earlier complaint contested before DCF Panchkula. It is further pleaded that applicant No. 2 came to Shimla in the second week of March 2018 alongwith record. It is further pleaded that delay in filing appeal was bonafide in nature and not intentional in nature. Prayer for acceptance of application for condonation of delay sought. 5. Per contra response filed on behalf of non-applicant pleaded therein that notice was duly served upon the applicants and absence of applicants was willful and intentional in nature. It is pleaded that applicants have not explained the delay in a satisfactory manner. It is further pleaded that applicants were aware of the proceedings of learned District Forum. Prayer for dismissal of application sought. 6. It is pleaded that applicants have not explained the delay in a satisfactory manner. It is further pleaded that applicants were aware of the proceedings of learned District Forum. Prayer for dismissal of application sought. 6. We have heard learned advocates appearing on behalf of parties and we have also perused the entire record carefully. 7. Following points arise for determination in present application. 1. Whether there are sufficient cause for condonation of delay of 210 (Two hundred ten) days in filing appeal as mentioned in the grounds of application? 2. Final order. Findings upon point No. 1 with reasons: 8. Applicant filed affidavit of Rajinder Singh Managing Director M/s. Mflow Tecno Industries Ex. A-1 in evidence. There is recital in affidavit that original consumer complaint was disposed of by learned District Forum on dated 18.07.2017. There is further recital in the affidavit that deponent came to know about the proceedings when notice of execution was received by deponent on dated 15.11.2017. There is further recital in the affidavit that thereafter deponent contacted the advocate at Shimla in the last week of February 2018 and deponent was advised to bring the relevant record of earlier complaint contested before DCF Panchkula. There is further recital in the affidavit that thereafter deponent contacted the advocate at Panchkula and brought the record. There is further recital in the affidavit that delay in filing the appeal was bonafide in nature and not intentional in nature. 9. Applicants also filed affidavit of Kamal Dhiman Ex. A-2 in evidence and reiterated the same facts which are reiterated in the affidavit Ex. A-1. 10. Non-applicant Dr. Charanjeet Dattal filed his affidavit Ex. NA-1 in evidence. There is recital in affidavit that delay in filing the appeal was not bonafide in nature and was intentional in nature. There is further recital in the affidavit that applicant No. 3 was served oh dated 15.11.2017. There is further recital in the affidavit that applicants have not explained each days delay in a satisfactory manner. There is further recital in the affidavit that delay in filing appeal was intentional and deliberate in nature. 11. Submission of learned advocate appearing on behalf of applicants that applicants were not properly served before the learned District Forum in original consumer complaint and on this ground application be allowed is decided accordingly. There is further recital in the affidavit that delay in filing appeal was intentional and deliberate in nature. 11. Submission of learned advocate appearing on behalf of applicants that applicants were not properly served before the learned District Forum in original consumer complaint and on this ground application be allowed is decided accordingly. In the District Forum service upon opposite party is effected by way of registered letter or by way of process server. Applicants did not file affidavit of postman or process server in order to prove that applicants were not properly served in the original consumer complaint. Even applicants did not send interrogatories to the postal authorities or process server in order to prove that applicants were not properly served in the original consumer complaint. Hence plea of applicants that they were not properly served in the original consumer complaint is defeated on the concept of ipse-dixit (An assertion made without proof). 12. Submission of learned advocate appearing on behalf of applicants that applicants approached the learned advocates at Shimla and Panchkula in order to obtain the relevant documents and on this ground application be allowed is decided accordingly. Applicants did not file affidavit of Ld. Advocate engaged at Shimla and also did not file affidavit of Ld. Advocate engaged at Panchkula. Affidavits of applicants are not sufficient because non-applicant has filed counter affidavit. Applicants did not place on record any independent corroborative evidence in order to prove the facts asserted by the applicants. 13. Submission of learned advocate appearing on behalf of non-applicant that delay in filing appeal was not bonafide in nature and was intentional in nature is decided accordingly. State Commission is of the opinion that applicants were not vigilant to pursue the matter and huge unexplained delay does not deserve to be condoned. It is well settled law that special limitation has been prescribed under Consumer Protection Act 1986 for filing revisions and appeals in consumer matters. It is held that object of expeditious adjudication of consumer dispute will get defeated if belated petition for condonation are entertained. See 2011(4) CPJ 63 (Apex Court), Anshul Aggarwal v. New Okhla Industrial Development Authority. 2009(1) CLT 188 SC, R.B. Ramlingam v. R.B. Bhavaneshwari. It is held that object of expeditious adjudication of consumer dispute will get defeated if belated petition for condonation are entertained. See 2011(4) CPJ 63 (Apex Court), Anshul Aggarwal v. New Okhla Industrial Development Authority. 2009(1) CLT 188 SC, R.B. Ramlingam v. R.B. Bhavaneshwari. See : 2012 CLT 338 SC, Office of Chief Post Master General and others v. Living Media India Ltd. See 2017(3) CPR 694 NC, M/s. Mahindra & Mahindra Financial Services Ltd. v. Sopan Trimbak Yedke. See 2017(2) CPR 537 NC, Ram Naresh Prasad v. PNB and others. Point No. 1 is decided accordingly. Point No. 2 : Final Order 14. In view of findings upon point No. 1 above application filed for condonation of delay of 210 (Two hundred ten) days in filing appeal is dismissed. Consequently F.A. No. 19/2019 is also dismissed as barred by limitation. Parties are left to bear their own litigation costs before State Commission. Certified copy of order be sent to learned District Forum forthwith for information. Certified copy of order be sent to parties forthwith strictly as per rules. File of State Commission be consigned to record room after due completion forthwith. M.A. No. 185/2018 & F.A. No. 19/2019 are disposed of. Pending application(s) if any also disposed of.