RAKESH SINGHLA vs AIRPHONE COMMUNICATIONS (INDIA) LTD.

THIS appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') is directed against order dated 10.9.1998 passed by South District Forum (Janakpuri District Forum) in Complaint Case No. 1458/1997, entitled Rakesh Singhla v. M/s. Airphone Communications India Ltd. & Ors., whereby complaint filed by the appellant was dismissed.

APPELLANT had filed a complaint under Section 12 of the Act before the District Forum averring therein that he had purchased one Cellular phone ''Seimens S4 IEMI No. 4451'' from Airphone Communications (I) Ltd. (respondent No. 1) who are authorised dealer of respondent No. 2 - M/s. Seimens Telecom Ltd. It was alleged that the battery of the said phone became unserviceable/unchargable within 4-5 days from the date of the purchase. He approached the respondent but they failed to give any satisfactory reply. He claimed compensation amounting to Rs. 20,000/- for the business loss, Rs. 6,000/- towards price of the battery and other expenses and Rs. 5,000/- as legal costs. Respondents in their reply/written version pleaded that the warranty, as on the date of purchase i.e. 4.3.1997 did not cover chargable battery and, therefore, free cost of replacement of the battery was not possible. After hearing the parties and on perusal of the material placed on record, the learned District Forum observed that Cellular phone was supplied to the appellant under a warranty and in condition No. 2 of the warranty card, it was mentioned that warranty was not valid for chargable battery. In other words, seller had expressly given in writing to the appellant that chargable battery would not be replaced and accordingly finding no force in the complaint, the same was dismissed.

Aggrieved by the impugned order dated 10.9.1998, appellant has filed the present appeal. Along with appeal, an application seeking condonation of delay was also filed. Notice thereto was issued to the respondents, who filed reply to the condonation application as well as the main appeal.

WE have heard arguments advanced by the learned Counsel for the parties on the application seeking condonation of delay and have also carefully perused the material placed on record. In the application for condonation of delay, it is stated that the complaint was decided by the District Forum on 10.9.1998 and certified copy of the order was delivered to a member of the appellant''s family by the postman on 16.10.1998 and certified copy of the order was delivered to a member of the appellant''s family by the postman on 16.10.1998. It is stated by the appellant that he is a businessman engaged in manufacturing metal craft goods. It is further stated that when copy of the order was delivered by the postman, he was busy in preparation for the exhibition of his products in the India International Trade Fair, which was to be held from 14.11.1998 to 27.11.1998 and he was to raise his stall for his goods. That for the preparation of the above mentioned stall, he had to visit several cities including Gurgaon, Ghaziabad and even Jallandhar. It was in the evening of 29.11.1998 that he enquired from his Counsel who informed that copy might have been delivered at his house and thereafter he made enquiry and found a certified copy of the order in his file which was not important for him at that time because he was engaged in the preparation. It is, therefore, prayed that delay in filing the appeal be condoned.

THE aforesaid application has been contested by the respondent by filing detailed reply. The order, being impugned in the present proceedings was passed by the learned District Forum on 10.9.1998. Admittedly, certified copy of the order had been delivered by the postman at his residence on 16.10.1998. It is stated by the appellant that he found certified copy in his file but it was not important for him at that time because he was engaged in the preparation for the exhibition only. The appeal was filed in this Commission on 30.11.1998. 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 Commision on 30.11.1998 and as such there is delay of 15 days. As already stated, there is statutory provision, enabling the Commision 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'', occurring 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 limitaion and the injustice of depriving the appellant of adjudication of his grievances on the merits of her appeal for causes beyond his 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'' but in doing so, it is the test of a reasonable man in normal circumstances which has to be applied. In case titled DDA v. O.P. Gauba, reported as III (1995) CPJ 18 (NC)=(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 facts of the present case, it is noticed that the appellant seeking condonation of the delay in filing the appeal, has miserably failed to meet the above requirements as there is no valid bona fide ground to justify the condonation of delay in the present case. Certified copy of the impugned order has admittedly been received by a member of his family on 16.10.1998. According to the appellant, fair was to be commenced on 14.11.1998 Since the certified copy of the order had admittedly been received by him on 16.10.1998 and the fair was to be commenced on 14.11.1998, there was 29 days for the fair to start. In our opinion, there was sufficient time for the appellant to file appeal in time.

LAW is settled on the point that each day''s delay is required to be explained. Proof of ''sufficient cause'' is a condition precedent for the exercise of this discretion. In case, such a ground as taken by the appellant is considered as ''sufficient ground'' then any trivial ground will become justified to condone the delay. 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 application for condonation of delay is liable to be dismissed.

IN view of the aforesaid findings, application filed by the appellant seeking condonation of delay is dismissed. Consequently, the appeal filed by the appellant against the impugned order dated 10.9.1998 in Complaint Case No. 1458/97 entitled Rakesh Singhla v. Airphone Communication (I) Ltd. and Ors. is dismissed being barred by limitation. IN the facts and circumstances of the case, parties are left to bear their own cost. Appeal dismissed.