Rama Devi Kumar vs M.Bharat Kumar

THE present revision has been filed by Smt.Rama Devi Kumar (hereinafter referred to as the Petitioner) against the order of the State Consumer Disputes Redressal Commission, Andhra Pradesh (hereinafter referred to as the State Commission) which rejected her appeal on grounds of limitation since it was filed with a delay of 348 days as well as on merits.

THE factual matrix leading to the filing of the complaint before the District Forum by one M.Bharat Kumar (hereinafter referred to as the Respondent) is that he had entered into a franchisee agreement with Creative Health Links Pvt. Ltd. (hereinafter referred to as HMO) which is a health maintenance organization through the Petitioner who was its authorized signatory for a total fee of Rs.2 lakhs out of which Respondent paid Rs.1 lakh. When the Petitioner did not entrust any work to the Respondent as agreed, Respondent demanded back the money paid by him. Petitioner thereafter gave a cheque of Rs.1 lakh to the Respondent. However, when Respondent presented the said cheque to the bank it was dishonoured with an endorsment funds insufficient on 15.5.1998. Respondent, therefore, approached the Petitioner a second time and he was again issued a cheque with the assurance that it would be cleared. However, even this cheque was returned on 16.7.1998 with the memo payment stopped by the drawer. Respondent therefore, issued a legal notice to the Petitioner and since no response was received, he filed a complaint before the Metropolitan Magistrate, Vijayawada which is still pending. Respondent continued to approach the Petitioner requesting for refund of the entire deposit amount with interest and finally with some difficulty on 04.12.2003, Petitioner issued him a cheque drawn for a amount of Rs.2,13,150/- which was dishonoured by Canara Bank because of insufficient funds in that account. THE Petitioner, therefore, approached the District Forum on grounds of unfair trade practice as well as deficiency in service. The Petitioner on the other hand, has totally denied the allegations made against her and stated that she was no longer an authorized representative of HMO as she had submitted her resignation on 28.07.1998 to the Managing Director of the Company and this was accepted. It was in fact one Gurjeet Singh a Director of the HMO who appointed the Respondent as a franchisee for Guntur and Khammam districts for a consideration of Rs.2 lakhs but the Respondent had paid only Rs.1 lakh. Further, the Respondent had misrepresented that he was an educated unemployed person when in fact he was a businessman and was, therefore, not a consumer. In any case, there was no deficiency of service on the part of the Petitioner.

The District Forum after hearing both parties accepted the complaint and held the Petitioner as well as the other two directors of HMO of being jointly and severally liable to refund an amount of Rs.2,13,150/- to the Respondent along with compensation of Rs.20,000/- and Rs.1,000/- as costs.. Aggrieved by this order, Petitioner filed an appeal before the State Commission with a request to condone the delay of 348 days in filing the appeal. According to the Petitioner the delay occurred because her counsel failed to inform the Petitioner about the orders of the District Forum. The State Commission, however, did not condone the inordinate delay of 348 days in filing the appeal and dismissed the same. The relevant part of the order of the State Commission in this respect reads as follows:

WE are unable to accept the above said submission made by the learned counsel for the petitioner/appellant. The parties seeking relief has to satisfy the court that they have sufficient cause for not preferring the appeal within the time prescribed and the explanation has to cover the entire period of delay. A litigant cannot be permitted to take away a right which has accured to his adversary by lapse of time. Proof of sufficient cause is a condition precedent for the exercise of discretion of jurisdiction vested in this Court under Section 15(a) of the Consumer Protection Act. The discretion conferred on this court is judicial discretion and is exercised to advance justice and even it there is a strong cause for acceptance of the appeal that would not be a ground for condoning the delay. WE do not find any sufficient ground for condoning the inordinate delay of 348 days in filing the appeal. The State Commission also examined the appeal on merits and concluded that it saw no reason to interfere with the order of the District Forum. The relevant part of the order of the State Commission is reproduced: We have gone through the record. Admittedly a sum of Rs.1,00,000/- was paid by the complainant to the opposite parties under Creative Health Plan Franchise Agreement and the opposite parties did not entrust any work to the complainant as per the terms of the agreement. When the complainant insisted for refund of the said amount, the opposite parties issued a cheque in favour of the complainant for Rs.1,00,000/- dated .3.5.1998 and the cheque was dishonoured. Except denying the contentions on the ground that the complainant is not a consumer, the payments made by the complainant are not denied.

THE District Forum conducted a detailed enquiry and based on Exs.A-1 to A-5 and Exs.B-1 and B-2 came to the conclusion that there is deficiency in service on the part of the opposite parties and allowed the complaint directing the opposite parties jointly and severally to refund a sum of Rs.2,13,150/- with interest at 12% p.a. from 4.12.2003 till the date of payment together with compensation of Rs.20,000/- and cost of Rs.1,000/-. THE said order of the District Forum in our opinion does not suffer from any infirmity warranting interference by this Commission to exercise its appellate jurisdiction under Section 15 of the C.P. Act. Aggrieved by this order, the present revision petition has been filed. Learned counsel for both parties made oral submissions. Learned counsel for Petitioner stated that the delay of 348 days in filing the appeal was because her counsel had misplaced the relevant papers pertaining to the case because of change of his residence. A further delay occurred because he got preoccupied with personal and court work. It was requested, therefore, that the delay, which occurred because of these extenuating circumstances may be condoned. Further, Respondent himself had taken more than two years from the date of cause of action to file the complaint before the District Forum which was beyond the period of limitation but this was ignored by the District Forum in his case. Learned counsel for Respondent submitted that it was not correct that the initial complaint before the District Forum was barred by limitation because the complaint was filed within two years of the return cheque, which amounts to acknowledgment by the Petitioner and, therefore, the case is covered under Section 18 A of the Limitation Act, 1963. The Respondent was a genuine consumer as ruled by the District Forum and there was adequate documentary evidence that the cheque had been dishonoured at the instance of the Petitioner organization. The Petitioner is now trying to get out of her responsibility by stating that she has resigned but this does not hold good because she is the real sister of one of the Directors of the concerned organization. We have considered the submission of both counsel and have gone through the necessary evidence.

WE are not at all convinced by the reasons for the delay in filing the appeal before the State Commission. The statutory period for filing an appeal is 30 days and the consumer fora are required to decide cases in a summary manner within a limited time frame. In the instant case, the delay of 348 days is ten times over and above the period of limitation and is therefore, significant, moreso, when vague and unconvincing reasons have been put forward to explain the delay. The State Commission, we feel has rightly dismissed the appeal on this ground and we uphold the order of the State Commission. Regarding the merits of the case as observed by the State Commission, the District Forum had conducted a detailed inquiry based on the evidence produced before it and had come to a finding of fact that there was a deficiency of service on the part of the Petitioner and allowed the complaint.

WE see no reason to interfere with these findings of fact. The order of the District Forum and the State Commission is upheld. The Revision Petition is dismissed accordingly. The Petitioner is directed to pay to the Respondent Rs.2,13,150/- with interest @ 12% per annum from 04.12.2003 till the date of payment and compensation of Rs.20,000/- and cost of Rs.1,000/- within 30 days from the date of receipt of this order.