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Judgment
In the instant petition, it has been stated that the petitioner is running the business of General Provisional Store at main Bazar Banihal; that vide
Insurance Policy dated 18.11.2003, petitioner’s business stocks were insured with the respondent; that on the intervening night of 11th /12th June,
2004 the shop of the petitioner along with other adjoining shops caught fire due to some electric shot circuit, as a result of which the stocks of the
petitioner were completely burnt; that the respondents did not pay the insurance amount. Upon which ,the petitioner filed a complaint before the
Divisional Consumer Forum, Jammu, where the petitioner led evidence but his counsel did not appear and the same was dismissed by the Divisional
Consumer Forum Jammu vide order dated 30.11.2007. On coming to know about the dismissal of his complaint, the petitioner filed an appeal along
with an application for condonation of delay, before the J&K State Consumer Disputes Redressal Commission Jammu. The petitioner has given
cogent reasons for condonation of delay. However, the J&K State Consumer Disputes Redressal Commission Jammu, vide order dated 24.02.2010
has dismissed the application for condonation of delay and also held the appeal as merit less. The grounds projected by the petitioner for
condonation of delay have not been considered by the J&K State Consumer Disputes Redressal Commission, Jammu. Â
Feeling aggrieved of the order dated 24th February, 2010, passed by the J&K State Consumer Disputes Redressal Commission, Jammu, the
petitioner challenges the same, inter alia, on the following grounds:-
i. The petitioner has given the cogent reasons for condonation of delay. The State Commission while dismissing the application for condonation of
delay has not considered the facts, which have been pleaded by the petitioner in the application for condonation of delay. Â
ii. The petitioner has clearly pleaded that he was doing the business and also residing at Banihal. In this connection, he has led evidence by way of
evidence. He has also submitted supplementary affidavit in support of his claim before Divisional Consumer Forum, Jammu. The petitioner pleaded
that after the colossal loss in the fire incident, he had started business afresh and it had become very difficult for him to maintain him and his family
members and that he was under this impression that his counsel was conducting the case properly.  Â
iii. It is a settled principle of law that a party cannot be punished for default committed by his counsel. In the present case, there is a default on the
part of the counsel and admittedly, the petitioner has done everything, which was required to be done on his part.  In these circumstances, the
application for condonation of delay ought to have been allowed and the appeal ought to have been decided on merit. Â
iv. It is also well settled principle of law that while considering the application for condonation of delay, liberal view should be taken. The shop of the
petitioner was admittedly insured and the same was gutted in fire and the goods insured were destroyed, however, the amount of full compensation
was not paid. In these circumstances, the appeal to have been decided on merit after condonation of delay. Â
v. Though the application for condonation of delay has been dismissed, yet the State Commission has also held in one sentence that the appeal was
meritless. The aforesaid course is not sustainable and the order impugned is, therefore, liable to be quashed.Â
Objections stand filed on behalf of respondent No.1 stating therein that the writ petition in the present form is not maintainable as no fundamental,
legal or constitutional right of the petitioner has been violated. It is stated that the petition is bad for non-joinder of necessary parties. The Divisional
Forum Jammu which has dismissed the original complaint filed by the petitioner under Consumer Protection Act is a necessary party for the decision
of the present petition. It is further submitted that the present petition against the concurrent finding of the two Forums constituted under the J&K
Consumer Protection Act on facts, is not maintainable and the same deserves to be dismissed .
Heard learned counsel for both the sides.
We have perused the order impugned dated 24.02.2010, which reads as under:
“Order dated 30.11.2007 passed by the learned Divisional Forum Jammu (hereinafter to be referred to as the Forum) has been challenged in
appeal which is time barred by 110 days. The application has been given for condonation of delay. The main reason for not filing the appeal in
time is that the concerned counsel had not informed the applicant/appellant in time. The application has been opposed by the non-
applicants/respondents 1 and 2.
Heard the arguments.
The record reveals that on the day when the impugned order was passed, no-body was present for the complainant. Even the complainant had
remained absent for previous three consecutive dates of hearings. Now, how it can lie in the mouth of the applicant/appellant to pass-on the buck on
the advocate who was not present when the impugned order was passed. Both the complainant and his advocate had been remaining absent.Â
We have also perused the impugned order and the appeal appears merit less. In this view of the matter, no “sufficient cause†is found for
condoning the delay. Hence the application is dismissed and is consigned to records. The record of the Forum be returned at once.â€
Bare perusal of impugned order, it is evident that Commission below has with common order dismissed the application for condoning the delay as
well as appeal on merits. From the perusal of record, it is evident that petitioner is resident of Banihal, Ramban which is far long from Jammu; he had
already engaged Advocate. As per application for condonation of delay, it has been stated that his Advocate asked him not to come as matter has
been fixed for arguments before Divisional forum, so he did not come in Forum. However, he contacted his Advocate on telephone; he came to
Jammu on 18.4.2008 and contacted his counsel and tried to verify the date; but could not find and on next date he went to court and find that his
case has been dismissed on 30.11.2007.Â
In terms of section 13 of Act, the appeal has to be filed before State Commission within thirty days from the date of order; however in terms of
proviso of this section the delay in filing appeal can be condoned by Commission, if sufficient cause is shown. The power to condone the delay in
approaching the Commission has been conferred to do substantial justice to parties by disposing the cases on merit. Ordinarily a litigant does not stand
to benefit by lodging an appeal late. Some times refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold
and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits
after hearing the parties. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be
preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. A litigant does not stand to
benefit by resorting to delay. The expression 'sufficient cause' should, therefore, be considered with pragmatism in justice-oriented process approach
rather than the technical detention of sufficient cause for explaining every day's delay.
In the case in hand, it is clear that petitioner is resident of Banihal, Ramban which is far long from Jammu. It has also been pleaded that his
Advocate asked him not to come as matter has been fixed for arguments before Divisional Forum, so he did not come in Forum. However, he
contacted his advocate on telephone. He came to Jammu on 18.4.2008 and contacted his counsel and tried to verify the date, but could not find
and on next date he went to court and find that his case has been dismissed on 30.11.2007. In this way, there is ample proof that petitioner was
all along diligent, which a prudent man can do to prosecute his case.
Secondly, there is specific case of petitioner that he had already completed his evidence and thereafter respondents also completed the evidence.
Both Courts below have not mentioned any reason to disbelieve the evidence of petitioner. In impugned order State Consumer Disputes Redressal
Commission Jammu, has only stated that “we have perused the impugned order and the appeal appears meritless†This is cryptic order, which is
not sustainable in eyes of law.Â
In view of what has been discussed above, this petition is allowed. The order of State Consumer Disputes Redressal Commission Jammu, thereby
dismissing the appeal, is set aside. Further, without commenting on merits of main appeal, delay in filing the appeal is condoned. Main appeal is
remanded back to State Consumer Disputes Redressal Commission Jammu for deciding it on merits.