Dakshin Haryana Bijli Vitran Nigam vs Kalawati W/O Sh. Hans Raj

THERE is a delay of 86 days in filing this revision petition. The counsel for the petitioner has moved an application for condonation of delay. The delay has been explained as under:- "3. That the petitioner respectfully submits that delay has been occurred in filing the present Revision Petition within limitation, which has occasioned in process of taking the steps at various levels and in getting the matter approved for filing before this Hon ''ble Commission. The delay in filing the appeal was unintentional on the part of petitioner since DHBVNL being a Govt. Department, the file to challenge order of any court needs comprehensive examination and the file moves from one place to another. In this process, the delay has occurred and the same may kindly be condoned. 4. That moreover the petitioners are having their main legal office at Chandigarh. Whenever a court case is decided throughout Haryana the same is sent to the head office for taking appropriate action. The head office needs some time to examine the merits of the case and then the matter is dealt by the Office of Legal Remembrancer who nominates Standing counsel in Delhi for filing the revision petition if required. The concerned district Officer is then directed to contact the appointed counsel in Delhi for sending him the necessary papers with regard to filing the revision petition. THEREafter the file is examined by the counsel for the petitioner in Delhi and he drafts revision petition. The drafted petition is then sent to the district office for signing affidavits and sometimes the officers are called by the counsel at Delhi for further discussion and then the petition is filed before this Hon ''ble Commission. In this process enough time expires and delay occurs in filing the Revision Petition. "

WE are not satisfied with the explanation given by the petitioner. It may be also mentioned here that there was delay of 23 days in filing the first appeal before the State Commission. The said delay was condoned. While filing this revision petition, the petitioner should have been vigilant and surely alarm bells should have rung. The facts of this case reveal inaction and negligence on the part of the petitioner itself. This view is further fortified by the following authorities. In a recent authority in the Office of the Chief Post Master General and ors. Vs. Living Media India Ltd. and Anr., decided on 24.02.2012, by the Apex Court, in Civil Appeal No. 2474-2475 of 2012 arising out of SLP(C) No. 7595-96 of 2011, it was held that :- "13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay.

In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held 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 ".

IN R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, it has been observed that "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 ". In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed that "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 bonafides 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. "

IN Delhi Development Authority Vs. Ramesh Kumar, 1996 (2) CCC 150 (Del), it was observed that when appellant found grossly negligent and administrative delays have not been properly explained, application for condonation is liable to be dismissed. In view of the above, the application for condonation of delay in filing this revision petition is dismissed. Let us turn to the merits of this case. The core question which falls for consideration is, "who is liable for the maintenance of transformer after the expiry of warranty period. The consumer/complainant or the respondent Dakshin Haryana Bijli Vitran Nigam Limited, Hisar. "

SHORTY stated the case of the parties is this. The petitioner had issued sale instruction on 17.07.2006 regarding self-execution scheme. The connection was given to the complainant on 26.05.2009. The transformer was installed by the complainant at his own expenses at the tube well connection. The said transformer got out of order on 28.08.2011. Requests were made to the petitioner to get the repairs done but it replied that Nigam had no concern with the warranty period, which would run upto 6 years from the date of its purchase. The Complainant approached the contractor, who informed that the warranty of transformer was for two years and after the lapse of the warranty, Nigam itself is liable to maintain the same.

THE complaint filed before the District Forum was allowed and the petitioner was directed to restore the supply of the complainant after removing the above said defects with litigation charges in the sum of Rs. 5,000/-. The appeal filed by the petitioner was dismissed by the State Commission.

We have heard the counsel for the petitioner. As a matter of fact, there are two notifications, one which supports the petitioner and the second which supports the complainant. Consequently it will be worthwhile to reproduce those notifications:- A. "provision No. (vii) of Additional guidelines for AP consumers which are as under:- Upkeep and maintenance of the system beyond warranty period e.g. replacement of damaged D.T. after two years, shall be carried out by the Nigam ''. " B. Sale Instruction No. 42/2003 was revised upto some extent with Sale Instruction No. 3/2009 whereby the following guidelines were added in the sale instruction in 42/2006 ''Upkeep and maintenance of the system beyond warranty period e.g. replacement of damaged DT after 78 months from the date of installation shall be carried out by the Nigam i.e. the consumer is required to replace the damaged DT within warranty period of 72/78 months and thereafter Nigam will replace the transformer ''.

LEARNED counsel for the petitioner vehemently argued that his case is covered by the subsequent notification and after the warranty period upto 72/78 months, the complainant has to take care of his transformer. An attempt was made to louse up the real issue. The complainant got the connection on 26.05.2009. Instruction No. 42/2006 became applicable w.e.f. 06.02.2009. The complainant is covered under that notification which will have retrospective effect. The complainant obtained the connection on 26.05.2009 but the Sale Instructions 03/2009 were issued on 20.07.2009 and the transformer got defected in the month of August 2011. It is, therefore, clear that in the case of the complainant, the instruction dated 06.02.2009 shall be applicable because the connection was released in his favour on 26.05.2009 i.e. prior to 20.07.2009.

BOTH the Fora below have given the concurrent finding against the petitioner. Consequently the arguments of the petitioner deserve no consideration. The next submission made by the counsel for the petitioner was that the manufacturer should have been made a party in this case. Learned counsel for the petitioner submits that the transformer in question was purchased by the complainant from the approved contractor of the Nigam. Learned counsel for the petitioner explained that there are three approved contractors. The consumers are bound to purchase the transformer from them. They cannot purchase the transformer from any other contractor i.e. the matter is between the contractor and the Nigam. Nigam can blacklist such like contractors or take action against them. The contractor is not a necessary party. His liability comes to an end the moment the warranty period elapses. The defense set up by the petitioner does not just stack up. Consequently the revision petition is dismissed.