Nagpur Golden Transport Co Ltd vs Vishwabharti Store

THIS revision petition has been filed by Nagpur Golden Transport Co. Ltd. and another (hereinafter referred to as the ''Petitioners '') being aggrieved by the order of the State Consumer Disputes Redressal Commission, Chhattisgarh (hereinafter referred to as the ''State Commission '') in Appeal No.223/2007 decided in favour of Vishwabharti Store, Respondent herein who was the original complainant before the District Forum. Briefly, the facts of the case are that on 08.10.2005, Respondent who is a wholesaler of electrical equipments had paid Rs.2,045/- to the Petitioner for transportation of 20 cartons of electrical equipments worth Rs.2,15,801/- including tax as replacement for earlier transported and returned defective goods. Petitioners informed Respondent in the second week of November, 2005 that the goods sent for transportation on 08.10.2005 could not be delivered as the truck was stolen and though the truck was subsequently recovered, the goods could not be recovered although efforts were on for recovery. Petitioners assured Respondent that if goods are not recovered within two months, Petitioner would pay Rs.2,15,801/- in lieu thereof. However, despite a lapse of two months, Petitioners failed to pay this amount and nor were the goods recovered. Being aggrieved, Respondent filed a complaint before the District Forum on grounds of deficiency in service and requested that the Petitioners be directed to pay him Rs.2,15,801.87p with interest @ 12% per annum from 08.10.2005 till realization and any other relief which may be deemed just and proper.

PETITIONERS even after service did not appear before the District Forum and the case was heard ex parte, theDistrict Forum by taking the facts stated before it by Respondent as correct, allowed the complaint and directed Petitioners to jointly and severally pay the Respondent Rs.1,94,656/- with interest @ 9% since 09.10.2005 till realization and Rs.1,000/- as litigation costs. Aggrieved by this, Petitioners filed an appeal before the State Commission after a delay of 10 months beyond the stipulated period for filing an appeal. In their appeal before the State Commission, Petitioners contended that they could not appear before the District Forum and also could not file the present appeal in time because their Manager who had been entrusted with the case developed Cancer and had to leave his job and also the city without issuing necessary instructions to defend the complaint and thereafter to file an appeal before the State Commission. It was under these extenuating circumstances that the Petitioners were ex parte before the District Forum. Consequently, this resulted in a delay in filing the application for certified copy of the order as also an appeal before the State Commission. Hence, the reasons for delay were bonafide and merely technical in nature and the same may be condoned. Petitioners also sought permission under Order 41 Rule 27 of the CPC for placing additional documents on record. The State Commission after hearing the parties and on the basis of evidence led before it, dismissed the appeal both on the grounds of limitation as also on merits. The relevant part of the order of the State Commission reads as follows: "From a perusal of the application under consideration it appears that the appellant are trying to justifying the delay in filing the appeal. Further, the OP/appellant transport company appears to be having various branches at least it has offices at Delhi and Raipur. Even in case, Branch Manager of a particular place leaves his job for whatever reason, the work of the company does not come to a standstill and as other things are handled, the legal matters can also be taken care of. Further leaving the job could be a defence, if at all, only for the OP No.2 but there is no justification for non-appearance of the OP No.1. On perusal of the letter/document No.1, it appears that name of the person writing the said letter is illegible, however, we believe it to be Rewati Nandan Sharma as submitted by the learned counsel for the appellants. It appears that author of the letter i.e. the person who left the job due to physical reasons was working with the appellant organization as Crossing-Incharge and not as Manager as has been stated in the application under consideration. It further appears that the said person had left the job with effect from 30.09.2006 whereas the relevant complaint itself was decided on 31.07.2006 i.e. prior to the aforesaid Shri Sharma left the job. Hence, the plea raised by the appellant that since the aforesaid Shri Sharma had left the job suddenly the appellants could not be represented before the District Forum, cannot be accepted. It further appears that prior to filing of complaint, the complainant had issued legal notice through its could on 06.12.2005 and it was duly served on the appellant but they failed to furnish reply to the said notice. Hence, it appears that the appellants have been negligent and callous regarding the complaint of the respondent firm. It is stated in the application that the appellants received notice of the Execution Case No.22/07 on 05.04.2007 and applied for certified copy on 27.04.2007. However, they have failed to make any statement that the copy of the impugned order sent by the District Forum was not received by them or they received knowledge regarding the case and the impugned order only when notice of the execution case was served. Hence, it cannot be concluded that they had no knowledge of the order passed by the District Forum. "

So far as the merits of the case is concerned, the State Commission relied on the FIR placed on record by the Petitioners which revealed that the goods purportedly stolen along with the Truck pertained to grocery items and not to the electrical goods booked by the Respondent and therefore, had no bearing on the instant case. Therefore, on merits also it was held that Petitioners had no case. Hence, the present revision petition.

COUNSEL for both parties made oral submissions. Counsel for Petitioner while admitting that the Petitioners did not appear either personally or through their Counsel before the District Forum, stated that the State Commission erred in not accepting the bonafide reasons for non-appearance and filing additional evidence before it; namely, that their Manager who was entrusted with handling this case, developed cancer and left the city without information. It is also because of this development that there was a delay in filing the appeal. It was also submitted that since the case pertained to a commercial transaction, it was outside the jurisdiction of the Consumer Forum. Further no evidence or proof was produced that the Respondent ''s goods being transported by the Petitioner were electrical goods worth Rs.2,15,801/- and in fact these were broken bulbs which had little value. Counsel for Respondent on the other hand stated that the Fora below had correctly concluded in their well-reasoned orders that the Petitioners were guilty of deficiency in service and the case was rightly rejected both on grounds of limitation as also on merits by the State Commission.

WE have heard learned Counsel for both parties and have gone through the evidence on record. In the instant case, it is clear that Petitioners despite due opportunities, did not appear before the District Forum to lead any evidence to explain their case or controvert the statements and evidence filed by the Respondent and the District Forum was, therefore, fully justified in proceeding with the complaint ex parte and allowing the same by taking the facts stated in the complaint to be correct since these were neither controverted or rebutted. Regarding Petitioners '' appeal before the State Commission, it is an admitted fact that it was filed with a delay of 10 months beyond the statutory period of 30 days, Petitioners had sought to explain this delay on the grounds that the Manager who was dealing with the case left their employment following his contracting Cancer and, therefore, the case remained undefended before the District Forum and also led to delay in filing an appeal before the State Commission and therefore, the delay may be condoned. The State Commission had rightly not accepted the explanation offered by the Petitioners for the inordinate delay in filing the appeal and had given detailed reasons for it which have been reproduced in the order of the State Commission cited earlier. Recently, Hon ''ble Supreme Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority - IV(2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if the appeals and revisions which are highly belated are entertained. Respectfully, following this judgment and keeping in view the facts and circumstances in the instant case, we agree with the finding of the State Commission that the appeal is barred by limitation. So far as dismissal of the appeal on merits of the case is concerned, the State Commission apart from being the first court of appeal is also the last court of facts and on the basis of evidence produced before it, had concluded that there was no merit in the Petitioners '' appeal because the truck carrying the goods pertained to some other consignment and not to the Respondent ''s goods. In our revisional jurisdiction, we see no reasons to disagree on this finding of fact of the State Commission. We, therefore, uphold the order of the State Commission in toto. The revision petition is dismissed. Petitioners are directed to jointly and severally pay the Respondent Rs.1,94,656/- with interest @ 9% since 09.10.2005 till realization and Rs.1,000/- as litigation costs within six weeks from the date of receipt of this order.