NARESH KUMAR vs Dhillon Cool Drinks And Beverages Ltd

PETITIONER has filed present petition for setting aside of the orders dated 22.11.2005 and 4.6.2009 passed by State Consumer Disputes Redressal Commission, Punjab (for short as ''State Commission''). Along with it, petitioner has filed an application for condonation of delay of 1,195 days.

BRIEF facts are that petitioner has sent his complaint dated 20.7.2001, through post to District Consumer Disputes Redressal Forum, Gurdaspur (for short as ''District Forum''). It was alleged that he had been winner of Crown Nos. 822, 943, 520, 820, and 920 under the Scheme "Mera Number Kab Ayega" floated by respondent Nos. 2 and 3. Since, respondents did not send his prize accordingly he wrote to them. It was stated by respondent Nos. 2 and 3 that the Crowns were over dated. Case of the petitioner is that Crowns bear no date and as such he had been deprived of the prize amount.

DISTRICT Forum, vide its order dated 9.8.2005, dismissed the complaint of the petitioner.

AGGRIEVED by the order of District Forum, petitioner filed an appeal before the State Commission. Vide order dated 22.11.2005, appeal of the petitioner was dismissed as withdrawn.

THEREAFTER, petitioner filed application dated 5.4.2009, before State Commission for reopening of the case. Vide impugned order dated 4.6.1999, State Commission dismissed the application for review of order dated 22.11.2005.

WHEN matter came up for admission hearing on 4.11.2009, petitioner appeared in person and sought indulgence for providing a Counsel. Accordingly, Mr. Anshuman Ashok, Advocate was appointed as Amicus Curiae to contest the case of the petitioner.

ON 23.8.2011, Amicus Curiae recused from this matter. Hence, petitioner has argued the petition in person. On behalf of respondents, their respective Counsel have argued the matter.

IT is stated by petitioner that there is delay in filing of the revision petition since he was under medical treatment in different hospital from 2005 till March, 2009, and as such delay should be condoned.

ON the other hand, it has been contended by learned Counsel for respondents that no sufficient cause has been shown by the petitioner for seeking condonation of delay. In support learned Counsel for respondent Nos. 2 and 3 has cited a decision of this Commission reported as Citibank N.A. Kanak v. Pardeep Kumar Patri S/o Dinabandu Patri and JSS Consultancy Services Pvt. Ltd., IV (2011) CPJ 204 (NC)=Revision Petition No. 2587 of 2011 decided on 7.9.2011.

BY way of the present petition, petitioner has challenged two orders, first is order dated 22.11.2005. Revision petition, qua this order has been filed on 27.7.2009. Thus, there is a delay of 1195 days.

AS far as challenge to second order dated 4.6.2009 is concerned, the same is within the period of limitation.

TAKING up application for condonation of delay first, relevant averments made in it reads as under: "3. That in the rejoinder/reply filed by the appellant, the appellant has clearly stated and mentioned that the reason for filing of the appeal beyond the limitation period due to the reason that the appellant in fact remained under treatment(medical treatment with the (sic.) Heart and Super Specialty Institution Amritsar and with some other doctor till March 09 due to serious heart problem as well as mental problem from 2005 till March 2009 and all the documents in support of the above assertion have already been attached with the reply given by the appellant previously which caused delay in filing the present appeal before the Hon''ble Commission. 4. That the delay stated above was not due to intentional but for the reason duly stated and mentioned in para No. 3 of this application and this reason was beyond the control of the appellant to file the appeal within time which is now required and prayed to be condoned. In case the delay is not condoned the appellant is likely to suffer heavy loss and his valuable right, for which he has been approaching the different Court much earlier."

THUS, case of petitioner in seeking condonation of delay, is that he remained under treatment with different doctors from 2005 till March, 2009 and as such delay should be condoned.

HOWEVER, medical evidence placed on record by the petitioner shows that petitioner has been undergoing treatment as "Out Door Patient". There is nothing on record to show that petitioner ever remained admitted in any hospital as "Indoor Patient". There is also nothing on record to show that from 2005 till March, 2009, petitioner ever remained confined to bed and was unable to perform his normal activities.

IN Citibank (supra), this Bench observed: "17. It is well settled that "sufficient cause" for non-appearance in each case, is a question of fact. Delhi High Court in New Bank of India v. M/s. Marvels (India), 93 (2001) DLT 558, has held: "No doubt the words "sufficient cause" should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bona fide are clearly imputable, the Court would not help such a party. After all "sufficient cause" is an elastic expression for which no hard and fast guidelines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex parte decree has been able to satisfactorily show sufficient cause for non-appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen." 18. In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed: "It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the inquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant." 19. Similarly, in Oriental Insurance Co. Ltd. v. Kailash Devi and Ors., AIR 1994 Punjab and Haryana 45, it has been laid down that: "There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence." 20. In R.B. Ramlingam v. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed: "We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition."

AFTER going through the record, we find that plea taken by the petitioner about medical treatment taken by him from 2005 till March, 2009 is not supported by any cogent medical evidence. Nor petitioner has filed any documents to show that during this period he was advised bed rest and if so, for what period.

AS no reasonable explanation for delay in filing of the present petition after three years having been given, we hold that no sufficient ground is made out which entitles the petitioner to have three years delay condoned.

EVEN on merits, petitioner has no case. vide order dated 22.11.2005, appeal filed by the petitioner before State Commission was dismissed as withdrawn. Order dated 22.11.2005 was challenged by the petitioner by filing review application, only on 25.5.2009. Application for review was dismissed by the State Commission vide order dated 4.6.2009, holding that it has no power to review or modify its own orders. Moreover, as application for condonation of delay was filed after a lapse of four years, the same was held to be not maintainable, being not within the period of limitation.

IT is well settled that under Section 21(b) of the Consumer Protection Act, 1986, scope of revisional jurisdiction is very limited.

RECENTLY, Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. M/s. United India Insurance Co. Ltd., II (2011) CPJ 19 (SC)=IV (2011) SLT 303=2011 (3) Scale 654, has 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 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."

IT is also well settled that no leniency should be shown to such type of litigants, who in order to cover up their own fault and negligence goes on filing meritless petitions in different foras.

THUS, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21(b) of the Consumer Protection Act, 1986. Since, two Fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. Thus, present petition is hereby, dismissed with punitive costs of Rs. 10,000 (Rupees ten thousand only).

PETITIONER is directed to deposit the costs of Rs. 10,000 in the Consumer Legal Aid Account of this Commission, within four weeks from today. In case, petitioner fails to deposit the said costs within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

LIST on 2nd December, 2011 for compliance. Revision Petition dismissed.