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M/s. Fiat India Automobiles Ltd. v/s Kusum Bhandari & Others

    Revision Petition No. 1092 of 2014

    Decided On, 27 November 2014

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE K.S. CHAUDHARI
    By, PRESIDING MEMBER

    For the Petitioner: Ramesh Kumar Bamal, Advocate. For the Respondents: R1 & R2, In person, R3, Not required.



Judgment Text

K.S. Chaudhari, Presiding Member

This revision petition has been filed by the petitioner against the order dated 09.10.2013 passed by the Delhi State Consumer Disputes Redressal Commission (in short, ‘the State Commission’) in Appeal No. 85/2012 – M/s. Fiet India Automobiles Ltd. Vs. Mrs. Kusum Bhandari by which, application for condonation of delay was dismissed and appeal was dismissed as barred by limitation.

2. Brief facts of the case are that complainant/respondent No. 1 & 2 filed complaint before District Forum against OP/petitioner and learned District Forum proceeded ex-parte against OPs and allowed complaint and directed OPs to replace the vehicle with new one and further awarded compensation of Rs.15,000/- and Rs. and Rs.5,000/- as cost of litigation. Appeal filed by OP was dismissed by learned State Commission vide order dated 23.8.2012 as barred by 182 days. Revision Petition filed by OP was allowed by this Commission vide order dated 1.3.2013 and matter was remanded back to State Commission to decide application afresh after considering documents mentioned in the order. SLP No. 30036/2013 filed by Respondent was also dismissed by Hon’ble Supreme Court on 4.10.2013.Learned State Commission after hearing both the parties dismissed application vide impugned order against which, this revision petition has been filed.

3. Presence of Respondent No. 3 was dispensed with.

4. Heard learned Counsel for the Petitioner and Respondent No. 1 & 2 in person finally at admission stage and perused record.

5. Learned Counsel for the petitioner submitted that inspite of reasonable explanation for condonation of delay, learned State Commission committed error in dismissing application as well appeal; hence, revision petition be allowed and delay be condoned and matter may be remanded back to State Commission for deciding appeal on merits. On the other hand, respondent submitted that order passed by learned State Commission is in accordance with law, hence, revision petition be dismissed.

6. District Forum passed ex-parte order on 30.6.2011 and as per application for condonation of delay, copy of order was received by petitioner on 2.7.2011. Admittedly, in the application for condonation of delay, petitioner did not plead preparation of draft of statutory amount etc., appropriate reasons for condonation of delay, but later on filed anther application before State Commission narrating all reasons for delay in filing appeal.

7. Perusal of record clearly reveals that draft of Rs.25,000/- was got prepared by petitioner on 3.8.2011 in the name of Registrar, State Commission for filing appeal meaning thereby just after 32 days on receipt of impugned order draft was prepared. Affidavit of Mr. Anil Joshi, Head – Legal and Company Secretary of the petitioner was also notarised on 25.8.2011 which was filed along with memo of appeal. Mr. P.V. Dinesh, Advocate also filed affidavit before this Commission in earlier revision petition and State Commission was directed to consider all these documents while deciding application for condonation of Delay. P.V. Dinesh, Advocate filed affidavit and submitted that memo of appeal and application for condonation of delay prepared by Advocate Mr. Harsha was not in accordance with practice followed by State Commission. He redrafted appeal and dictated one paragraph for further delay in filing appeal, but by mistake it was not incorporated in the application for condonation of delay and he signed application and memo of appeal in good faith without reading. It was further submitted by him that appeal was not filed by Advocate Mr. Harsha due to some communication gap. Advocate Harsha sent memo of appeal to Ms. Nidhi Sidana, Advocate, but she also did not file appeal as she had left practice. It was further submitted by him that during preparation of appeal and filing of appeal his father and brother were hospitalized due to cancer and in such circumstances, delay occurred in filing appeal.

8. Learned Counsel for the petitioner submitted that on account of signing memo of appeal and application for condonation of delay by Mr. P.V. Dinesh, Advocate in good faith without reading it and on account of leaving practice by Ms. Nidhi Sidana, appeal could not be filed in time, though, draft for depositing statutory amount with State Commission was prepared long back and affidavit of Mr. Anil Joshi was also notarized long back and in such circumstances, delay in filing appeal may be condoned. On the other hand, respondents submitted that all these facts are concocted and after though which cannot be believed and as there is delay of 182 days in filing appeal, State Commission rightly dismissed application for condonation of delay.

9. Admittedly, ex-parte order was passed by District forum against the petitioner. Admittedly, petitioner got draft of statutory amount to be deposited with State Commission prepared just after 32 days i.e., on 3.8.2011 and affidavit of Mr. Anil Joshi, Head Legal and Company Secretary was also notarized on 25.8.2011. Appeal could have been filed just after 25.8.2011, but it appears that on account of entrusting matter to different Advocates from time to time, appeal could not be filed at the earliest. Apparently, delay occurred due to handing over matter to different Advocates from time to time, party should not be penalized. Hon’ble Apex Court in 2005 (3) SCC 752 - State of Nagaland Vs. Lipok AO & Ors. observed that where there is sufficient cause for condonation of delay or not is a question of fact depending on facts and circumstances of particular case and further it was observed that mistake of Counsel by itself is sufficient cause for condonation of delay. In the case in hand, no benefitwasto incur to the petitioner by delaying in filing appeal and it appears that on account of mistake of Counsel for the petitioner, necessary averments could not be incorporated in application for condonation of delay and appeal could not be filed just after getting affidavit of Mr. Anil Joshi notarized from the notary.

10. In such circumstances, it would be appropriate to condone delay subject to cost so that petitioner may contest ex-parte order passed by District Forum.


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11. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 9.10.2013 passed by learned State Commission in Appeal No. 85/2012 – M/s. Fiet India Automobiles Ltd. Vs. Mrs. Kusum Bhandari & Ors. is set aside and application for condonation of delay filed by the petitioner before State Commission is allowed subject to payment of Rs.10,000/- as cost to Respondent No. 1/Complainant within 4 weeks and appeal is remanded back to learned State Commission to decide it on merits after treating appeal in limitation and after giving an opportunity of being heard to both the parties. 12. Parties are directed to appear before State Commission on 6.1.2015.
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