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M/s Asian Paints Ltd. vs. K.A. Abootty Haji dated 2014-09-09

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 

REVISION PETITION NO.4963 OF 2012

(From the order dated 1.10.2011  in Appeal No.668/2010 of the

Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

 

M/s Asian Paints Ltd.                                                                       ….. Petitioner

3/38A, Opposite Govt. TTI

East Nadakkakvu

Kannur (Kerala)

Head Quarter at

6-A, Shanti Nagar

Akola, Santacruz (East)

Mumbai-400 055

 

                  

  •  

K.A. Abootty Haji                                                                               .... Respondent

Crescent Traders, Sivapuram P.O.

Sivapuram (via) Mattannur

Kannur (Kerala)

 

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER

For the Petitioners               :         Shri Sudhir Kulshreshtha, Advocate

For the Respondent            :         Shri Harshad V. Hameed, Advocate

Pronounced on : 9th  September, 2014

 

ORDER

PER SURESH CHANDRA, MEMBER

This revision petition challenges the impugned order dated 1.10.2011 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram in Appeal No.668 of 2010 whereby the State Commission partly allowed the appeal filed by the petitioner/opposite party in terms of the following directions:-

“In the result the appeal is allowed in part. Impugned order passed by the Forum below is modified and thereby the compensation of Rs.20,000/- awarded by the Forum below is reduced to Rs.5000/-. In all other respects the order passed by the Forum below is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.”

2.         The State Commission thus modified the order passed by the District Forum in C.C No.21 of 2008 passed on 4.10.2010. The order of the District Forum is reproduced below:-

“In the result, complaint is allowed directing the opposite party to return the colour world machine that has been taken from complainant repairing it defect free or else to refund an amount Rs.2,40,000/- (Rupees Two Lakh Forty Thousand only) and also to pay an amount of Rs.20,000/- (Rupees Twenty Thousand only) as compensation together with a sum of Rs.1000/- (Rupees One Thousand only) as cost of this proceeding within one month from the date of receipt of this order failing which the complainant is at liberty to execute the provisions of Consumer Protection Act.”

3.         The facts of the case, briefly stated, are that the respondent/complainant filed a complaint alleging deficiency in service on the part of the opposite party/petitioner herein in not returning the machinery, namely, Colour World Machine which had been taken by the opposite party for effecting repairs. The complainant/respondent alleged mental agony and financial loss on failure of the opposite party to return the aforesaid machine and hence claimed refund of Rs.3,94,864/- being the price of the machine together with compensation of Rs.1,50,000/- and cost. The petitioner/opposite party opposed the complaint by filing written version denying the alleged deficiency in service. On appreciation of the facts on record, the District Forum allowed the complaint vide its order dated 4.10.2010 reproduced above. As indicated, the petitioner/opposite party being aggrieved of the aforesaid order filed an appeal before the State Commission which was partly accepted by the State Commission vide its aforesaid impugned order. Not satisfied with this order, the opposite party/petitioner has now preferred this revision petition.

4.         We have heard learned counsel for the petitioner Shri Sudhir Kulshreshtha, Advocate and learned Shri Harshad V. Hameed, Advocate for the respondent and perused the record.

5.         Along with the revision petition, the petitioner has also filed an application for condonation of delay. As per the report of the Registry, there is a delay of 319 days beyond the prescribed period in filing this revision petition. The main grounds for condonation of delay are given in para 3 of the application and the same read as under:-

“(a) The impugned order was pronounced on 1.10.2011 and its certified copy of the aforesaid order was prepared on 18.11.2011 and thereafter it was sent by post to the Regional Office of the Revisionist at Kannur where it was received in the month of February, 2012. The consult and thereafter the Regional Officer forwarded the same to the head office at Mumbai in February 2012 but the concerned legal Executive who was looking into the matter resigned from our post due to which it could not be kept a track of the development of the case. The concerned Manager who were representing the company in this matter also got transferred to another location in the month of April, 2012.

(b) That Kannur is a very distant region, hence the lawyer of the Asian Paints did not reached in time to the office of Asian Paint to act upon. The since the papers were not complete and did not include all the relevant papers, they were collected from the counsel for the revisionist conducting the case at Vazhuthacaud Kerala which became available to the revisionist in the November, 2012 and thereafter the legal department of the Head Office at Mumbai examined the documents and finally instructed to the counsel for the petitioner on 3.12.2012 and forwarded the papers from Mumbai to New Delhi.

(C)            That the counsel for the revisionist after receiving the papers examine the papers and found that the copies of the agreement are not available and some other requirement are also to be done, accordingly he wrote a letter on 6.12.2012 followed by E-mails on 12.12.2012.

(d)            That finally the papers have been received in December, 2012 and thereafter the Ministerial work was done and the revision was drafted and which is being filed today without any further loss of time.

(e)            That the aforesaid delay so occasioned is bonafide and unintentional which deserves to be condoned.”

6.         It is seen from the application that even though the certified copy of the impugned order was prepared on 18.11.2011, it is not indicated as to when it was sent to the Regional Office of the petitioner where it is stated to have been received in the month of February, 2012. Here again, no date has been given. Thereafter, it is stated that the impugned order was sent to the Head office at Mumbai in February, 2012 without specifying the date on which it was sent. Once again, the explanation for further delay is strange and vague because it is not indicated as to who was the concerned legal executive who was looking into the matter and resigned from his post because of which the petitioner  could not keep a track on the development of the case. Further, it is mentioned that the concerned manager who was representing the company in the matter also got transferred to another location in the month of April, 2012. Here again, neither the identity of the concerned Manager is disclosed nor any supportive document is produced to prove the submission. At the end of some further vague and general explanation, the petitioner has said that final instruction was given to the counsel for the petitioner on 3.12.2012 and papers were forwarded from Mumbai to New Delhi. It is thus clear that the whole issue of filing of the revision petition which was required to be done during the specified period in accordance with the provisions of law has been dealt in a casual and careless manner even though the petitioner is a well-known company in the private sector with all the necessary resources available to it. In the circumstances, the explanation given by the petitioner Co. in support of the inordinate delay of 319 days cannot be regarded as convincing by any stretch of imagination so as to constitute “sufficient cause” which led to the delay in filing the revision petition.

7.         While dealing with the question of condonation of delay, the Apex Court in the case of R.B. Ramlingam Vs. R.B. Bhavaneshwari  [2009 (2) Scale 108] has observed “We hold that in each and every case the Court has to examine whether delay in filing the  special leave appeal 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.”

8.         The Apex Court in the case Anshul Aggarwal Vs. New Okhla Industrial Development Authority, [IV (2011) CPJ 63 (SC)] has laid down that:-

“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.”

 

9.         It is established law that the petitioner seeking condonation of delay is required to explain each and every day’s delay in a convincing manner since condonation thereof would have the effect of depriving the other party from enjoying the fruits of court’s order in its favour. Applying the criteria laid down by the Apex Court in the aforesaid and many other cases, we are convinced that the petitioner has miserably failed to make out sufficient cause so as to persuade us to condone the delay of 319 days in filing of this revision petition. We are, therefore, not inclined to condone the same. The revision petition, therefore, is liable for dismissal on this ground alone.

10.       Even otherwise, we do not find any merit in this revision petition which could justify our interference with the impugned order. Perusal of the record shows that both the Foras below have returned their concurrent findings of fact holding the petitioner deficient in rendering service to the respondent/complainant. However, the State Commission while upholding the finding of the District Forum for deficiency in service has granted partial relief to the petitioner and reduced the amount of compensation vide its impugned order. We do not find any infirmity so as to call for our interference with that order. We may note that the powers vested in this Commission under section 21(b) while exercising our  revisional jurisdiction are rather limited and unless there is some jurisdictional error, it is not appropriate to interfere with the concurrent finding of the Fora below. Hon’ble Supreme Court while dealing with this question in the case of Mrs. Ruby (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. [(JT) 2011 (3) SC 586] has observed thus:-

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent findings of two fora.”

11.       In view of the above, the application for condonation of delay is dismissed and consequently the revision petition is also dismissed both on the grounds of limitation as well as on merit. No order as to costs.

..…………Sd/-…………………..

(AJIT BHARIHOKE  J.)

PRESIDING MEMBER

 

 

....………Sd/-……………………

(SURESH CHANDRA)

MEMBER

SS/

 


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