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Uday Shankar Varma v/s Continental Airlines Inc. & Others

    Revision Petition No. 2394 of 2011

    Decided On, 04 July 2013

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.B. GUPTA
    By, PRESIDING MEMBER & THE HONOURABLE MRS. REKHA GUPTA
    By, MEMBER

    For the Petitioner: Ms. Amrita Bhattacharya, Advocate. For the Respondents: R1, V.K. Nagrath, Advocate.



Judgment Text

Counsel for petitioner on instructions states that petitioner wants to pursue with the present petition.

2. Heard.

3. Petitioner has been non-suited by the State Commission on the ground that there was delay in filing of the complaint before the District Forum.

4. It has been contended by the learned counsel for the petitioner that cause of action in the present case has initially arisen on 17.02.2008 and petitioner has earlier filed a complaint before the District Forum, New Delhi on 16.2.2010, which was later on withdrawn and second complaint was filed before the District Consumer Disputes Redressal Forum, Gurgaon(for short, ‘District Forum’). Thus, second complaint filed on 10.5.2010 is not barred by limitation.

5. First complaint filed by the petitioner was dismissed as withdrawn by the petitioner. In this regard, order dated 27.4.2010 passed by the District Forum, New Delhi read as under ;

'ThisCase has not been admitted so far. Ld. Counsel wants to withdraw this complaint. The prayer is allowed. Complaint is withdrawn with the liberty to file the fresh complaint. Case is decided accordingly'.

6. Thereafter, fresh complaint was filed before the District Forum, Gurgaon on 10.5.2010. So on the face of it, second complaint filed by the petitioner is barred by limitation, as admittedly no benefit under Section 14 (2) of the Limitation Act, 1963 for the period spent by the petitioner before the District Forum, New Delhi was granted. Accordingly, District Forum, Gurgaon rightly dismissed the complaint of the petitioner being time barred, vide its order dated 01.03.2011.

7. Against that order of District Forum, petitioner filed an appeal before the State Consumer Disputes Redressal Commission, Haryana(for short, ‘State Commission’). State Commission, vide impugned order dated 20.4.2011, upheld the decision of the District Forum, Gurgaon and dismissed the appeal filed by the petitioner. In its impugned order, State Commission observed ;

'Admittedly, in the present case the cause of action has accrued to the complainant on 18.2.2008, when the complainant lodged his complaint with the opposite parties for the missing of his luggage at New Delhi Airport, whereas he has filed the present complaint before the District Forum, Gurgaon on 10.5.2010. It is also an admitted case of the complainant that he has filed the complaint before the District Forum, New Delhi which was withdrawn by him on 27.4.2010 and at the time of withdrawal, no liberty was granted to the complainant to file a fresh complaint before the District Forum, Gurgaon on the same cause of action. It was a simpliciter withdrawal of the complaint, which was allowed by the District Forum, New Delhi to file a fresh complaint. It is nowhere pleaded or sought by the complainant that he wants to file a fresh complaint before the District Forum, Gurgaon. Thus under the circumstances, when the complainant was put up before the District Forum, Gurgaon, it was already time barred because cause of action has accrued to the complainant on 18.2.2008 and the fresh complaint before the District Forum, Gurgaon was filed on 10.5.2010. It was further admitted case of the parties that no application was filed by the complainant under Section 14 (2) of the Limitation Act seeking the condonation of delay for agitating the matter before the Forum, which had no jurisdiction to try the complainant. In the absence of any application, the District Forum, Gurgaon was left with no other option, but to dismissed the complaint as time barred. As per the provisions of Section 24A (1) of the Consumer Protection Act, 1986, no complaint can be entertained by the District Forum after the expiry of the period of two years from the date of accruing of the cause of action, unless there is sufficient reason to condone the delay in filing the complaint is filed or District Forum condoned the delay. Hon’ble Supreme Court in case titled State Bank of India Vs. M/s B.S. Agricultural Industries (I) reported in 2009(2) CPJ 1, has held that if the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the Forum would be committing an illegality and therefore, the aggrieved party would be entitled to have such order set aside. Admittedly, the present complaint was filed by the complainant before the District Forum after a gap of more than two years, which on the face of it appears to be hopelessly time barred.

As a sequel to our discussion, no case of admission of this appeal is made out, it is dismissed in limini'.

8. Admittedly, the case of the petitioner itself is that cause of action arose on 17.2.2008 and second complaint has been filed on 10.5.2010. So on the face of it, the complaint filed by the petitioner before the District Forum, Gurgaon was barred by limitation. No application seeking condonation of delay was filed before the District Forum, Gurgaon.

9. Under section 21 (b) of the Consumer Protection Act, 1986, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

10. Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654has observed ;

'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

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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 concurrent findings of facts given by fora below, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Act. Both the fora below have given cogent reasons in their order which do not call for any interference nor do they suffer from any infirmity or revisional exercise of jurisdiction. 12. Under these circumstances, present petition is without any legal basis and same is hereby dismissed. 13. No order as to costs.
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