VASIMALLA JOSEPH vs M/S. GARAPATI GARAGE 1959 & 2 ORS.

Petitioner/Complainant being aggrieved by impugned order dated 03.12.2014 passed by A.P. State Consumer Disputes Redressal Commission, Andhra Pradesh, (for short, ''State

Commission'') has filed present petition under Section 21(b) of the Consumer Protection Act, 1986( for short, '' Act''). Along with it, an application seeking condonation of delay of 133 days has been filed.

Petitioner''s case is, that he booked ''Bolero Vehicle'' with Respondent No.1/Opposite Party No.1 and paid a sum of Rs.50,000/- towards advance. The total cost of vehicle was Rs.6,97,536/- and petitioner has paid sum of Rs.2,50,000/- towards down payment. After few days, vehicle started giving trouble. At the direction of respondents, petitioner handed over vehicle to them for the purpose of repairs but respondents have failed to deliver the vehicle after repairs. Thus, alleging deficiency on the part of respondents, petitioner filed a consumer complaint before District Consumer Disputes Redressal Forum, Guntur (for short, ''District Forum''), claiming refund of Rs.4,20,000/- and Rs.4,00,000/- towards compensation.

Respondents No.1 and 2 in their written version, denied the allegations made by the petitioner. It is stated, that on 09.08.2007 vehicle was brought to the garage of respondent no.1 after it had run 8,600 Kms. The vehicle was inspected by Senior Engineer and it was found to be in working condition. Accordingly, petitioner was asked to take delivery of the vehicle but he has chosen not to take delivery of vehicle without any reason. There is no defect in the vehicle.

On the other hand respondent no.3 in its written version has stated, that as per loan agreement petitioner was to pay loan amount in 12 equal installments but petitioner had paid only 4 installments. Later on, he committed default in the payment of remaining installments. Thereafter, it invoked the recovering proceedings after following due process. As per terms of the agreement, possession of vehicle was taken. Thus, there is no deficiency on part of respondent no.3.

District Forum, vide order dated 17.07.2010 allowed the complaint and passed following directions; " 1 . The opposite parties 1 to 3 are jointly and severally liable to pay compensation of Rs.30,000/- to the complainant.

The opposite parties 1 to 3 are further directed to pay an amount of Rs.1,000/- towards legal expenses to the complainant.

The amounts ordered above shall be paid within a period of six weeks from the date of receipt of copy of this order, failing which the amounts shall carry interest @ 9% p.a. till the date of realization ."

Not satisfied with the award passed by the District Forum, petitioner filed appeal before the State Commission, which vide impugned order partly allowed the same and directed respondent no.3 to pay a sum of Rs.65,000/- to the petitioner. The State Commission further ordered, that petitioner shall be entitled to draw Rs.11,000/- deposited by respondent no.3 before the District Forum and all respondents jointly and severally shall pay Rs.20,000/- being the remaining part of the amount awarded by the District Forum to the petitioner. In addition, respondents shall pay Rs.2,000/- towards the cost of the appeal.

Still not satisfied with the amount awarded by the State Commission, petitioner has filed this revision seeking enhancement.

We have heard learned counsel for petitioner on application for condonation of delay and gone through the record.

It is contended by learned counsel for petitioner, that previous counsel at Hyderabad did not inform the petitioner about passing of impugned order by the State Commission on 03.12.2014. Later on, petitioner came to know about the order and thereafter he has filed this revision. Thus, delay was neither deliberate nor intentional.

The impugned order was passed on 03.12.2014 and free copy of order was issued to the petitioner on 22.12.2014 by post, whereas present revision petition has been filed on 16.07.2015.

The ground on which condonation of delay has been sought read as under;

" 3. That the counsel at Hyderabad did not inform about the case that the order was passed on 03.12.2014, the petitioner herein has been under the impression that matter is pending before the State Commission. The petitioner tried to contact the counsel at Hyderabad many a times but he could not contact the counsel. Ultimately, the petitioner herein came to know that the matter has been allowed on 03.12.2014 through reliable source in the month of June, 2015. Immediately the petitioner herein contacted the present counsel in Delhi in the first week of July 2015.

In view of the above mentioned peculiar facts and circumstances of the case some delay has occasioned which is neither deliberate nor intentional, which is required to be condoned in the interest of justice ."

It is well settled that "sufficient cause" for condoning the delay in each case is a question of fact.

In Ram Lal and Ors. Vs. 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 S.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 enquiry 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."

Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & 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 ."

In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court 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 ."

Hon''ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that; " It is also apposite to observe that while deciding an application filed in such cases 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 this Court was to entertain highly belated petitions filed against the orders of the consumer Foras ."

Decision of Anshul Aggarwal (Supra) has been reiterated in Cicily Kallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon''ble Supreme Court observed ; " 4 . This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/ Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).

In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.

Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay ."

It is petitioner''s own case, that his counsel at Hyderabad did not inform him about passing of the impugned order but ultimately, he came to know that matter has been decided on 03.12.2014 through reliable sources in June, 2014. Petitioner has not stated the name of that counsel nor the source from where he came to know about passing of the impugned order in June, 2014. The plea taken by the petitioner is absolutely vague. Further, petitioner put the entire blame on its previous counsel. It is well settled, that it is the duty of a litigant also to pursue his litigation in a diligent manner and he cannot shift entire blame for delay on its counsel.

The explanation given by petitioner with regard to knowledge of the impugned order passed by the State Commission, is absolutely vague and has no legs to stand. A valuable right has accrued in the favour of the respondents. That right cannot be brushed aside lightly. Thus, inordinate delay of 133 days in filing the petition cannot be condoned since no sufficient cause has been shown by the petitioner.

Even otherwise, petitioner himself, was a defaulter as he failed to pay loan installments within the prescribed period.

The observations made by various Courts in the authoritative pronouncements discussed above, are fully attracted to the facts and circumstances of the case. Thus, gross negligence, deliberate inaction and lack of bonafides is imputable to the petitioner. No sufficient grounds has been shown for condoning the long delay of about 4? months. Under these circumstances, present revision petition stand dismissed being barred by limitation.

No order as to cost.