KM.KIRAN VOHRA vs COMMISSIONER,MCD

THIS appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to ''the Act''), is directed against the order dated 3.7.1997 passed by West District Forum in Case No. 596/1997 entitled Km. Kiran v. MCD, wherein respondent MCD was directed to refund Rs. 457.25 p. paid by the appellant vide Bill dated 2.3.1993 and also to refund Rs. 224/- (sic.) refundable vide bill dated 4.4.1995 and to pay cost of litigation amounting to Rs. 250/-.

NOTICE of the appeal as well as the application seeking condonation of delay was issued to the respondents who put in appearance. Respondents were directed to file reply on 6.10.1998. Reply was not filed. Case was adjourned to 8.12.1998, 2.9.1999 and then to 22.7.1999. No one appeared for the respondents on 22.7.1999 nor reply to the memorandum of appeal was filed. Cost imposed vide order dated 8.12.1998 amounting to Rs. 250/- was also not paid and, therefore, vide order dated 22.7.1999, it was directed by this Commission that respondents be proceeded ex-parte in the present proceedings. Appellant averred in her complaint before the District Forum that she had applied for water connection to MCD and deposited Rs. 1,226/- and meter was installed at her residence on 15.1.1991 and thereafter, she received a bill for Rs. 200/- for the period from 30.6.1992 to 19.11.1992 without any meter reading and the said bill was paid. Next bill for Rs. 200/- was received which was also paid. The third bill for the period 15.1.1991 to 12.2.1993 for Rs.457.25p. on the basis of meter reading was received. After adjusting Rs. 400/- paid by the appellant for two bills mentioned above, the balance of Rs. 57.25p. was to be paid and the appellant paid the same. However, a sum of Rs. 781/- due to the appellant on account of advance of Rs. 1,226/- deposited by her on 15.1.1991 was not adjusted and thereafter the bills for the period from 12.2.1993 to 22.7.1993 and 22.7.1993 to 12.10.1993 on the basis of water meter reading were received which were paid by the appellant. Thereafter the appellant received a bill for the period from 12.10.1993 to 10.1.1994 for Rs. 100/-. The meter reader on 10.1.1994 found that the meter had stopped at 856 between the two periods of reading from 12.10.1993 to 10.1.1994. The bill of Rs. 100/- was also paid by the appellant. Another bill for the period 12.10.1993 to 12.10.1994 for Rs. 336.30p. was received. Appellant was required to pay Rs. 236.40p. after adjusting of Rs. 100/- paid by her against provisional bill for the period from 12.10.1993 to 10.1.1994. However, the bill for period 12.6.1994 to 12.10.1994 for Rs. 416/- was again received which too was paid. It was alleged by the appellant that respondent had charged 55 K.L. per month for the period 12.10.1993 to 12.10.1994 when the meter was out of order and actual average consumption for the 12 months preceding the date of stoppage of meter worked out to 22 K.L. p.m. Accordingly, respondent over-charged a sum of Rs. 515.68p. from the appellant. It was, therefore, prayed that respondent be directed to pay Rs. 515.68p. with interest @ 18%. It was also prayed that respondent be directed to refund Rs. 781/- which was due to her on account of advance payment of Rs. 1,226/- made on 15.1.1991. Appellant also prayed for compensation for mental agony suffered by her.

In reply filed by the respondent, it was contended that a sum of Rs. 1,226/- paid by the appellant towards consumption of water during the construction period could not be adjusted against the subsequent bills against supply of water for domestic purposes. It was also averred that appellant was not available at the premises at the time of visit of the meter reader and as such two provisional bills of Rs. 200/- each were issued. Later on, when the meter reading was taken in the month of February, 1993, this amount of Rs. 400/- was adjusted. The meter of the appellant had stopped functioning. As such, bills on the basis of average consumption were issued.

AFTER hearing the learned A/Rep. of the complainant and learned Counsel for the respondent and on perusal of records, the learned District Forum vide impugned order dated 3.7.1997 observed that the consumption of 706 K.L. recorded on 12.2.1993 included the consumption of water for the construction for which Rs. 781/- had already been charged from the appellant. Accordingly, the learned District Forum observed that there was no justification for charging Rs. 457.25p. again for the same consumption. It was also directed that a sum of Rs. 224/- shown to be refundable vide bill dated 4.4.1995 should also be refunded. It was also observed that the meter had stopped functioning when it was checked on 12.10.1993 and no efforts were made by the respondents to replace the defective meter. That the appellant was forced to unnecessary litigation due to deficiency in service on the part of the respondent and accordingly, directed the respondent to pay Rs. 250/- towards the cost of litigation in addition to refund of Rs. 457.25p. and Rs. 224/- as referred above. Feeling not satisfied with the relief awarded by the learned District Forum in favour of the appellant, appellant has preferred the instant appeal.

WE have heard the arguments advanced by Shri O.P. Vohra, learned A/Rep. of the appellant and have carefully perused the material placed on record of the file including the material placed on record of the learned District Forum. The order being impugned in the present proceedings was passed by the learned District Forum on 3.7.1997, and the instant appeal was filed in this Commission on 23.1.1998. In terms of provisions contained in Section 15 of the Act, the present appeal should have been filed within a period of 30 days from the date of the order. However, the proviso to the above section provides that the State Commission may entertain an appeal even after the expiry of the above said period of 30 days, if it is satisfied that there was "sufficient cause" for not filing the same within the aforesaid period. Admittedly, the present appeal has not been filed within the prescribed period of 30 days. In fact, the same was filed in the Commission on 23.1.1998 and as such there is long period of delay of over five months. In application seeking condonation of delay, appellant has stated that her father Shri O.P. Vohra, who is pursuing the case on her behalf is a heart patient and due to deterioration of his health in the last week of July, 1997, he was hospitalised and on discharge he was advised complete rest and regular medical treatment and, therefore, due to this reason, the appeal could not be filed in time and, therefore, delay in filing the appeal be condoned. As already stated, there is statutory provision, enabling the Commission to entertain the appeal even after the expiry of the statutory period prescribed for filing the appeal, provided the appellant satisfies that there was ''sufficient cause'' for not filing the same within time. The words ''sufficient cause'', occuring in proviso to Section 15 of the Act are of utmost significance. As per settled law, culled out from various judicial decisions, the above expression, ''sufficient cause'', though deserves to receive a liberal construction, yet, a just and equitable balance has to be maintained between the right secured by the respondent as a result of the expiry of the prescribed period of limitation and the injustice of depriving the appellant of adjudication of her grievances on the merits of her appeal for causes beyond her reasonable control, which means the cause is bona fide and beyond the control of the appellant. Though no hard and fast line be drawn as to what affords ''sufficient cause'' in a given case, yet, again as per settled law, any cause which prevents a person from approaching the Court within time is ''sufficient cause''. In doing so, it is the test of a reasonable man in normal circumstances which has to be applied. In case titled O.P. Gauba v. DDA, reported as III (1993) CPJ 1229=1986-96 Consumer 273 (NS), in which case there was delay of 27 days in filing the appeal, National Commission has held that each day''s delay has to be satisfactorily explained. If the above criterion is applied to the present case, it is noticed that appellant seeking condonation of the delay in filing the appeal, has miserably failed to meet the above requirements because the application is not accompanied by medical record showing that A/Rep. of the appellant had been hospitalised. Proof of sufficient cause is a condition precedent for exercise of this discretion. It was obligatory on the part of the appellant to explain each day''s delay which she has failed to show. As already stated, that there is a delay of long period of over five months in this case. No medical record has been filed in support of averments made in the application. It is significant to state that the appeal could have even been sent by post. Accordingly, we have no hesitation in coming to the conclusion that the appellant was highly negligent in preferring this appeal and has failed to show sufficient cause for not preferring the appeal in time. Consequently, the appeal is liable to be dismissed being barred by limitation. Even otherwise we find that the impugned order does not suffer from any infirmity learned District Forum has carefully considered each aspect in depth and has given detailed reasons in its findings on each aspect of the case. Learned District Forum has held that the appellant was entitled to a refund of Rs. 457.25p. paid by the appellant vide bill dated 2.3.1993. It is further held that the appellant was also entitled to refund of Rs. 224/- shown to be refundable vide bill dated 4.4.1995. Learned District Forum also held that no efforts were made by the respondent to replace the defective meter, although the same had stopped functioning when the same was checked on 12.10.1993. Since the appellant was forced to unnecessary litigation, learned District Forum awarded Rs. 250/- as cost of litigation to the appellant in addition to refund of amount as referred above. In our opinion, the impugned order is well reasoned order and does not suffer from any infirmity so as to call for any interference by this Commission in exercise of its appellate powers.

IN view of the aforesaid findings, appeal filed by the appellant Km. Kiran against the impugned order dated 3.7.1997 passed in Complaint Case No. 596/1997 entitled Km. Kiran v. MCD, is without any substance and deserves to be dismissed. Accordingly, the appeal filed by the appellant is dismissed. IN the facts and circumstances of the case, parties are left to bear their own costs. Appeal dismissed.