DISCOVER CONDOS (FORMERLY KNOWN AS vs MEENAL VIRENDRA VERMA & 3 ORS.

This appeal has been filed by Discover Condos (formerly known as Western Discover Resort) against the order dated 21.4.2015 of the State Consumer Disputes Redressal Commission, Maharashtra (in short ''the State Commission''.

Brief facts of the case are that a consumer complaint No.549 of 2013 was filed by complainant, MeenalVirendraVerma, before the State Commission alleging deficiency on the part of opposite party No.1/appellant in present appeal for the reason that the husband of the complainant died in an accident that occurred on 02.12.2011 in the appellant-Resort where the husband of the complainant died due to gas geyser dis-functioning/blast during his stay there. In the complaint case , the appellant also appeared through counsel till 7.8.2014 and after that date neither the appellant nor his counsel appeared before the State Commission and finally the State Commission passed the following order on 21.4.2005:- "After hearing the complainant, application for calling the witness stands disposed of. None present for the Opponent No.1. Adv. Nagaraj Hoskeri for the Opponent No.2 files affidavit of evidence of the Opponent No.2. Now, stage of evidence is closed. This complaint is ripe for final hearing. Parties are directed to file their brief notes of written arguments as contemplated under Regulation-13(2) of the Consumer Protection Regulations, 2005 with the Registrar (Legal) at-least two days prior to the next date of hearing. Parties are directed to arrange the files properly and carry out continuous pagination and ensure that both the sets of complaint compilation with this Commission are identical. Adjourn to 04.11.2015 for final hearing."

The present appeal has been filed against this order dated 21.4.2015 of the State Commission by the opposite party No.1 in the complaint case.

Heard the learned counsel for the appellant. Learned counsel states that due to some communication gap between the counsel of the appellant in the State Commission and the appellant, neither the appellant nor his counsel could appear before the State Commission after 07.8.2014. The counsel appearing on behalf of the complainant in the State Commission somehow was under the impression that he has been asked to return the brief. The complainant was under the impression that his counsel was taking care of his case before the State Commission. In this confusion, on the date of 27.11.2014, 21.4.2015 and 4.11.2015 neither the appellant nor his counsel appeared before the State Commission. The complainant got the information from the State Commission on 18.2.2016 that his opportunity for the evidence is closed by the State Commission vide order dated 21.4.2015. He immediately applied for the copy of order dated 21.4.2015 and filed the appeal. Learned counsel submitted that great injustice would be caused to him if he is not allowed to submit his evidence before the State Commission. For delay in filing the present appeal, learned counsel has submitted a delay condonation application of 282 days delay in filing the present appeal on the basis of aforesaid grounds.

I have perused the file and have considered the arguments advanced by counsel for the appellant. There is no doubt that the counsel for the opposite party No.1/appellant was present on 7.8.20014, wherein the following order was passed:-

"Adv. R.Vanchiswaran is present for the complainant. Adv. JokinFernandes is present for the opponent No.1. Adv.NagrajHoskeri is present for the opponent no.2. Adv. Vishwanathan is present for the opponent no.4.

Public notice is issued to the opponent no.3. Complainant has filed affidavit of service along with copy of paper publication. None appeared for the opponent no.3. Hence, complaint to proceed ex-parte against the opponent no.3 as he failed to appear without any sufficient reason in spite of service of notice.

Since, pleading part in the complaint is over, both parties are now directed to file affidavit of evidence as per provisions of Section 13(4) of Consumer Protection Act, 1986. Parties are further directed to prepare their affidavits and/or affidavits of their witnesses, if any, well in advance and serve copies thereof on the other side. On receipt of such affidavit from the other side, the parties ae at a liberty to file their counter-affidavits, if any. Such counter-affidavits shall also be prepared well in advance and copies thereof shall be exchanged with the other side at least a fortnight prior to the next date of hearing. Affidavits and counter-affidavits and relevant documents shall be presented before the State Commission on 27.11.2014"

From the above order, it is amply clear that the counsel appearing on behalf of the opposite party No.1/appellant was fully aware that affidavit of evidence and other affidavits of witnesses were to be filed before the next date. The counsel must have informed the opposite party No.1/appellant about the same because till that time there was no question of counsel returning the brief of the case. It was also the duty of the appellant to have asked his counsel about the progress of the case. On the next date i.e. 27.11.2014, the following order was passed:- "Ms. Radhika Vanchiswaran, Advocate present for the complainant. None present for opponent Nos.1 & 3. Ms. Rasika Joshi, Advocate present for opponent No.2. Mr. A.V. Patwardhan, Advocate present for opponent No.4. Matter is already proceeded ex-parte against opponent No.3. Complainant has filed affidavit of evidence with documents. Copy of the same be served to the opponents. Today, complainant has filed an application to issue witness summons. Copy be given to the opponents. Now, matter is adjourned for filing affidavit of evidence by the opponents and for filing say to the application moved by the complainant and additional affidavit, if any, by the complainant. Matter stands adjourned to 21.04.2015."

From the above it is borne out that even on this date further opportunity was given to defaulting party to file the affidavit of evidence before the next date i.e. 21.4.2015. On 21.4.2015 the evidence of opposite party no.1 was closed because none was present on behalf of opposite party no.1. It is very surprising that in such an important case where a person had died in the hotel room of appellant/opposite party no.1 due to fire accident happening on account of a defective gas geyser/ blast and where the claim of Rs.48,00,000/- were filed against the appellant, he has not taken any care to know the progress of the case from 07.08.2014 to 18.02.2016.

Paragraph No. 2 of the condonation of delay application mentions as follows:- "2. It is stated that the appellant has been defending the complaint with diligence. The appellant was being duly represented by its counsels up to 07.08.2014, where after confusion arose between the counsels of the appellant on record before the State Commission and the appellant. The counsels for the appellant were under the bona fide impression that they are no longer instructed to appear in the matter. In fact, on 17.02.2015, the advocates appearing for the appellant had returned the papers to the appellants and were under the impression that they are no longer instructed to appear in the complaint before the State Commission. However, the appellant was under the impression that the complaint is being attended to by its counsels on record."

From the above quoted paragraph No.2 of the application for condonation of delay filed by the appellant in the present appeal, it is clear that the counsel appearing on behalf of the appellant before the State Commission returned the brief on 17.02.2015. Therefore, the appellant must have got the information that his counsel would not be taking care of his case. Even then he did not take any immediate steps to find out the progress of the case and to appoint another counsel to appear before the State Commission.

Based on the above examination, It is clear that the appellant has been negligent in pursuing his case before the State Commission. I do not find any merit in the application for condonation of delay for filing this appeal and the same is dismissed. Consequently, the appeal also stands dismissed on account of being barred by limitation.