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Fiat India Automobiles Private Limited v/s Ramchandra Barwal & Others

    Revision Petition No. 1847 of 2015

    Decided On, 15 May 2018

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Petitioner: Rishab Raj Jain, Nabita Hasan, Advocates. For the Respondents: R1, Mohd. Anis Ur Rehman, Advocate, R2 & R3, Ex parte.

Judgment Text

1. This revision petition has been filed by the petitioner herein Fiat India Automobiles Pvt. Ltd. against the order dated 25.4.2015 of the State Consumer Disputes Redressal Commission, Chhattisgarh, (in short ‘the State Commission’) passed in Appeal No. FA/15/153.

2. Brief facts of the case are that the respondent No. 1/complainant filed the complaint alleging defects in the vehicle purchased by him. The manufacturer as opposite party No. 1 and the dealer as opposite party Nos. 2 and 3 were made parties in the complaint case. Opposite party No. 1 was proceeded against ex parte by the District Consumer Disputes Redressal Forum, Raigarh (in short ‘the District Forum’). Opposite party No. 2 and Opposite party No. 3 resisted the complaint by filing the written reply. However, the District Forum vide its order dated 21.5.2014 allowed the complaint and passed the following orders:

“(a) The opposite parties will replace the Linea Car with a new car of same model and provide a new vehicle of the same model or shall pay Rs. 7,07,219 (Rupees seven lakh seven thousand two hundred nineteen) and shall also pay interest @ 6% per annum to the complainant on the sum of Rs. 7,07,219 w.e.f. 22.11.2013 till payment;

(b) The opposite parties shall also pay to the complainant the sum of Rs. 5,22,555 (Rupees five lakh twenty two thousand five hundred fifty five only) collected as repair charges;

(c) The opposite parties shall also pay to the complainant the sum of Rs. 10,000 as damages for causing financial hardship and mental agony and Rs. 2,000 (Rupees two thousand only) as costs of proceedings.”

3. Opposite party No. 1 preferred Appeal No. FA/15/153 before the State Commission, which has been dismissed in limine vide the impugned order dated 25.4.2015 on the ground of limitation.

4. Hence the present revision petition.

5. Heard the learned Counsel for the parties and perused the record. Learned Counsel for the petitioner stated that the opposite party No. 1/petitioner herein is the manufacturer and no notice was received by the petitioner, though the District Forum has treated sufficient service and has proceeded ex parte against the petitioner. It is true that the appeal was filed with delay of 9 months and 7 days, but the delay has happened due to the fact that the petitioner suddenly received the order though the petitioner was not aware of any such case. After receiving the order, the petitioner had to locate and take out the records from the old files and then the delay has happened in contacting the Counsel and preparing the appeal. The delay was not intentional nor with any mala fide intention. In fact the petitioner has not got any chance to put forward its defence before the District Forum and if the appeal is not heard on merits, this will be against principle of natural justice. The party must be given chance to put forward its case atleast once before the Consumer Forum. Thus, it is necessary that the matter be remanded to the State Commission for hearing on merits.

6. Coming to the merits, the learned Counsel stated that no expert report has been filed, but even then, the District Forum has ordered the replacement of the vehicle or refund of the price of the car and the repairs that were undertaken by the dealer. The learned Counsel stated that there was no manufacturing defect in the car and he has not got any opportunity to defend his case against the complaint.

7. On the other hand, the learned Counsel for the respondent No. 1/complainant stated that the petitioner was duly served and when the petitioner did not appear before the District Forum, there was no alternative with the District Forum, but to proceed ex parte against the petitioner. The copy of the order was received by the petitioner just after a week of passing of the order of the District Forum, still they have taken such huge time to file the appeal. There was no justification for remanding back the matter to the State Commission as the State Commission has rightly dismissed the appeal in limine filed by the petitioner on the ground of limitation. The learned Counsel further stated that the delay can only be condoned, if there are genuine reasons and day-to-day delay is explained. The application for condonation of delay filed before the State Commission by the petitioner herein does not give any details in respect of day-to-day delay and only general things have been stated, which cannot be treated as sufficient cause for condoning the delay. Due to this delay valuable right has been accrued on the respondent, which cannot be taken away by condoning the delay in filing the appeal. If the matter is remanded, the respondent No. 1/complainant will suffer further as the Consumer Fora are meant for providing speedy justice to the complainant.

8. I have given a thoughtful consideration to the arguments advanced by the learned Counsel for the parties and have examined the material on record. From the facts of the case, it is clear that the petitioner herein was proceeded ex parte before the District Forum and it is alleged that notice was not received by the petitioner. This matter may have been looked into by the Appellate Forum in the appeal. Prima facie, it is true that the petitioner has not got any chance to represent its case and put forward its defence before any of the Consumer Forum. Though there is a delay of 9 months and 7 days and the reasons given in the application for condonation of delay mainly refer to the administrative delays on the part of the petitioner, while condoning the delay one has to also keep in mind interest of both the parties and a balance view needs to be taken so that miscarriage of justice does not take place in the matter.

9. Hon’ble Supreme Court in the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and Others., VIII (2013) SLT 95=IV (2013) CLT 62 (SC)=(2013) 12 SCC 649, has laid down:

“21. From the aforesaid authorities (case laws referred) the principles that can broadly be culled out are:

21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the Counsel or litigant is to be taken note of.

21.5 (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8 (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the Courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.”

10. The Hon’ble Supreme Court in another case N. Balakrishnan v. M. Krishnamurthy, VII (1998) SLT 334=IV (1998) CLT 63 (SC)=(1998) 1 SCR (Suppl.) 403, has laid down the following:

“11. Rules of limitation are not meant to destroy the right 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. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (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. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari, MANU/SC/0335/1968: [AIR 1969 SCR 1006 and State of West Bengal v. The Administrator, Howrah Municipality, MANU/SC/0534/1971: [1972] 2 SCR 874a.

13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a

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large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss.” 11. From the facts of the case, it is borne out that the petitioner herein had not got any opportunity to put forward his defence and therefore, relying on the above judgments of the Hon’ble Supreme Court, I deem it appropriate to set aside the order dated 25.4.2015 passed by the State Commission and allow the application for condonation of delay moved before the State Commission to condone the delay in filing the appeal at a cost of Rs. 75,000 (Rupees seventy five thousand only) to be given to the respondent No. 1/complainant by the petitioner. The amount be paid to the respondent No. 1 by the petitioner before or on the date of appearance before the State Commission. The State Commission shall proceed with the case only after compliance of the order in respect of the payment of Rs. 75,000 (Rupees seventy five thousand only) to the respondent No. 1/complainant is made. In any exigency, the State Commission shall have power to extend the time for paying the cost upto a period of two weeks. The matter is remanded to the State Commission for deciding the appeal on merits after giving opportunity to all the parties of being heard. Parties to appear before the State Commission on 10.7.2018.