Sunita Channabasappa Bagewadi, Member
1. The appellant/Opposite Party No.1 has preferred this appeal being aggrieved by the Order dt.24.02.2021 passed in CC.No.21/2020 on the file of District Consumer Disputes Redressal Commission, Dharwad.
2. The brief facts of the complaint are as hereunder;
It is the case of the complainant that Opposite Party No.1 is engaged in dealership of electronics materials. Opposite Party No.2 is the manufacturer of electronic goods including Television in the name of Philips India Ltd. On 06.09.2016 the complainant’s brother deceased Mr. Mansuf Saudagar had purchased Philips LED TV from Opposite Party No.1 by paying Rs.30,500/- which has 3 years of warranty from the date of purchase. On 08.08.2018 the TV was found not working properly so the complainant lodged a complaint before Opposite Party No.1. The Opposite Party No.1 sent its mechanic who repaired the defect, but after some time defects again appeared in the television set. It is found that television set panel has failed during warranty period. After several reminders, the Opposite Party No.1 neither replaced the TV nor repaired the defect till today. Opposite Party No.1 in his letter dt.02.11.2018 assured the complainant that they will get panel from company and repair the TV and will handover it as soon as possible. The complainant visited several times and made request to get the TV repaired, but, the Opposite Party No.1 did nothing. After several requests, the complainant issued a legal notice to Opposite Party, but, the Opposite Party did not respond for the notice. The act of Opposite Party amounts to deficiency in service. Hence, the complaint.
3. After service of notice, the Opposite Party No.2 remained absent, hence, placed exparte. Though Opposite Party No.1 appeared in person, not filed any version.
4. After trial, the District Commission partly allowed the complaint and directed the Opposite Party Nos. 1 & 2 jointly and severally liable to repair the TV by replacing the panel or pay the cost of panel to the complainant along with compensation and costs.
5. Aggrieved by the said Order, the appellant/ Opposite Party No.1 is in appeal on many grounds. Heard the arguments of appellant on admission and issuance of notice to respondents is dispensed with.
6. The appellant has filed an application u/s 41 of Consumer Protection Act, 2019 for delay in filing the appeal along with affidavit and submitted that there is 179 days of delay in filing the appeal. The counsel for appellant further submitted that due to Covid-19 pandemic, the Hon’ble Supreme Court of India vide its Order dt.23.09.2021 in Miscellaneous Application No.665/2021 in SMW(C) No.3/2020 held that
“in computing the period of limitation for any Suit, Appeal etc., the period from 15.03.2020 to 02.10.2021 shall stand excluded.
In the present case, the impugned order was passed on 24.02.2021 and a free copy of the same was sent to the appellant on 16.03.2021. As per the above said order dt.23.09.2021 passed by the Hon’ble Supreme Court of India, the limitation period for the appellant to file the above appeal starts only from 03.10.2021. Hence, the appeal is in time.”
7. Perused the appeal memo and considering the application of delay condonation and reasons narrated in the affidavit, the delay is hereby condoned.
8. On perusal of the appeal memorandum, the appellant has admitted that on 06.09.2016 one Mr. Mansuf Saudagar has purchased one Philips LED TV by paying Rs.27,100/- vide Invoice No.FS/HU/758 from Hubli branch of M/s Girias and contended that warrantee so provided by the Respondent No.2/Manager of M/s Girias, Hubli does not covered the entire components of the TV, but, only certain components of it and details of which are mentioned in the warrantee card issued to the purchaser Mr. Mansuf Soudagar. The appellant further contended that Respondent No.1/Complainant Mr. Mansurali sent legal notice to Respondent No.3 M/s Girias Investment Pvt. Ltd., and called upon to provide new TV of same brand. However, there is no any contractual obligation towards Mr. Mansurali who is completely stranger.
9. The appellant further contended that respondent No.1 Mr.Mansurali had filed a Complaint No.21/2020 before the District Commission without making the appellant as a party to the said complaint and made a party to the Manager of Hubli Branch of M/s Girias who is not an authorized person. After service of notice, the Manager of the Hubli branch appeared before the District Commission on 17.03.2020 and matter was adjourned to 16.04.2020 for filing written version. Due to Covid-19 pandemic, the Government of India imposed a nationwide lockdown from 25.03.2020 to 31.05.2020 and subsequently due to rising of Covid-19 cases, the representative of the appellant could not appear before the District Commission to file written version in time and subsequently the impugned order has been passed on 24.02.2021.
10. On perusal of the appeal memo and Order passed by the District Commission, we noticed that the appellant has admitted the TV purchased by one Mr. Mansuf Saudagar. The complaint filed by one Mr. Mansurali, S/o Nizamuddin Saudagar who was a stranger. However, he claimed himself to be a brother of Mr. Mansuf Saudagar and he expired in a road accident on 31.07.2019. However, the complainant has not produced any documentary proof to establish his claim before the District Commission that Mr. Mansuf Saudagar was expired as on the date of filing of complaint and Mr.Mansurali is a brother of the deceased Mr. Mansuf Saudagar. Moreover, there is no any discussion made in the Order by the District Commission that how the complainant is entitled to succeed to the estate of alleged deceased without any documentary proof. The District Commission without taking any documents regarding the heirship of the complainant with the alleged deceased allowed the complaint. Hence, in our opinion, the District Commission has made an error in passing the order. Hence, keeping in view the reasons assigned by the appellant in the appeal memo due to Covid-19 pandemic the representative of the appellant could not appear before the District Commission and filed written version in time can be considered sympathetically to meet the e
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nds of justice. Hence, the following; ORDER The appeal is allowed. The Order passed by the District Commission is hereby set aside and the matter is remanded back to the District Commission and directed the District Commission to make appellant as a party to the proceeding by providing an opportunity to proceed with the matter. Further directed to collect the documents from the complainant regarding the legal representative/heirship with the alleged deceased Mr. Mansuf Saudagar and dispose-of the matter on merits expeditiously. The amount in deposit shall be refunded to the appellant under proper acknowledgement. Forward free copies to both parties.