Goodwill Transport Corporations vs Prerna Sintex & Anr

Rekha Gupta, J.

The present revision petition has been filed against the judgment dated 05.12.2017 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur ('the State Commission') in Appeal no. 1138 of 2017.

The facts of the case as per respondent no.1/ Complainant - Prerna Sintex are that the respondent no.1 took one Marine Inland Transit Insurance Policy no. 370200/ 4400043/96 for the period from 16.01.1997 to 15.01.1998 by paying insurance premium to the respondent no. 2/ insurance company. The respondent no. 1 was sent by its supplier J P Trading Company Indore from Narmada Ginning and Pressing Factory, Khirkia (Madhya Pradesh), 100 Cotton Bales valuing Rs.8,65,885/- through truck no. MP 09 KA 8215 LR no. B 006178 of the petitioner/ respondent - Goodwill Transport Corporation on 01.01.1998. It reached at Neemrana registered office and Mill premises of the respondent no. 1 on 05.01.1998. At that time these cotton bales were wet with water and muddied and thus the said cotton bales were damaged completely. Respondent no. 1 informed the insurance company. Their surveyor surveyed at the site and assessed a loss of Rs.3.00 lakh. Information was given to the petitioner - transport company. The petitioner in its letter dated 02.08.1998 replied that the goods had been despatched at owner's risk, whereas no such condition with regard to dispatch of goods was agreed to by the respondent no.1 and J P Trading Company Indore with the petitioner.

The respondent no. 2- insurance company paid Rs.3.00 lakh to respondent no. 1 on 24.09.1998 and after receiving the said payment the respondent no.1 executed a special power of attorney in favour of the insurance company on 24.09.1998. Thereafter this joint complaint was filed by respondent no. 1 and respondent no. 2- insurance company with the contention that the respondents were entitled to recover the amount of Rs.3.00 lakh from the Goodwill Transport Corporation because the said cotton bales were damaged during transit and the transport company was responsible for the same. Despite of giving notice by the respondents to the transport company they have not been paid and as such by not paying the amount to the respondents, the transport company has committed deficiency in service and on the ground of this deficiency in service the respondents were entitled to get all the relief claimed from the transport company. Hence, Consumer Complaint no. 760 of 2012 was filed with the following prayer:

The petitioner - Good Will Transport Corporation may be directed to pay Rs.3.00 lakh to the respondents for the loss of Rs.3.00 lakh caused due to negligence committed in transporting the subject cotton bales;

The petitioner may be further directed to pay interest on the said amount of Rs.3.00 lakh @ 12% per annum from 05.01.1998 to the date of actual payment;

For causing mental agony to the respondents due to not making payment of compensation of the loss caused due to negligence and careless committed by the petitioner in transporting the subject cotton bales despite service of notice dated 13.01.1998 and 04.03.1998 the petitioner may be directed to pay Rs.5,000/- as compensation to the respondents.

The petitioner may be directed to pay cost of Rs.5,000/- to the complainant.

Any other relief and order which in the facts and circumstances of the present case the Hon'ble Forum may deem fit may be granted in favour of the respondents.

The petitioner in their reply contended that as proceedings under section 10 of the Couriers Act, 1965, had not been initiated within six months and information not given by the respondents, the complaint of the respondents was not maintainable, therefore, the complaint of the respondents may be rejected.

The District Consumer Disputes Redressal Forum, Jaipur Fourth, Jaipur ('the District Forum') vide its order dated 31.03.2015 while allowing the complaint gave the following order:

"Consequently, in view of the aforesaid discussions, his complaint is allowed and it is ordered that the complainant no. 2 insurance company is entitled to get compensation of Rs.3.00 lakh from the respondent transport company. The complainant no. 2 insurance company may be also received interest @ 9% per annum on the said amount of Rs.3.00 lakh from the date of filing of the complaint till recovery from the respondent - transport company. Further, order is passed granting Rs.5,000/- as compensation for financial mental and physical suffering caused for deficiency in service of the respondent transport company and Rs.2,500/- as cost to the complainants. The respondent transport company is directed to pay the aforesaid amount through DD/ crossed cheque at the given address of the complainant no. 1 and complainant no.2 within one month from the date of the order."

Aggrieved by the order of the District Forum, the petitioner/ opposite party filed an appeal before the State Commission along with an application for condonation of delay. Number of days of delay is not mentioned in the application. The State Commission vide its order dated 05.12.2017 while dismissing the appeal observed as under:

"In the present complaint the non-complainant/ appellant was appeared before the District Forum and also filed written arguments in the year 2006 and thereafter the file remained adjourned for arguments and after the year 2014 they disappeared from the proceedings and thereafter the District Forum has allowed the complaint ex parte on 31.03.2015.

From perusal of case file of the District Forum it is appeared that the non-complainant appeared in the complaint but later disappeared. The reasons that they had filed written arguments in 2006 is not sufficient for getting the delay condoned because thereafter also they attended the proceedings and both the parties sought time for arguments but lastly after 2014 the non-complainant disappeared. As such the complainant was well aware with the complaint. No reason is appeared to condone the delay of 2 years 133 days and on this ground alone this appeal is dismissed."

Hence, the present revision petition.

The main ground given for the revision petition is that 'the written arguments were filed by the petitioner's counsel in the year 2006 and indisputably the counsel remained appeared in the proceedings till the year 2014 and thereafter he was neither appeared nor pleaded 'no instruction' before the DCF nor communicated anything to the petitioner. The petitioner was in bonafide belief on the assurances of the counsel for watching interest of the petitioner in the complaint. After 2014 till 31.03.2015 when order was passed by the District Forum no body was appeared on behalf of the petitioner. Thus in such circumstances obviously the petitioner was not aware with the order and was under impression that since 2006 after filing written arguments the case is pending for orders. The very fact of the order came to his knowledge for the first time on serving of notice of Contempt Proceedings under section 27 of the Contempt of Court Act initiated by the respondents and thereafter the petitioner immediately acted upon in the matter and preferred the appeal with separate application for getting the delay of 2 years 133 days condoned in the interest of justice. But, without considering all these circumstances and innocence of the petitioner in right perspective the State Commission casually dismissed the appeal on the premise that the petitioner was well aware with the complaint. This casual approach of the Appellate Court being last court of fact is unsustainable in the eye of law and therefore the impugned order of the appellate court is bad in eye of law and is liable to be quashed and set aside'.

We have heard the learned counsel for the petitioner. He contended that the petitioner was not aware of the passing of the ex parte order hence, he came to know of the same only when notice of the execution petition was received by him. However, copy of the execution notice is not placed on file. Counsel for the petitioner had no further points to urge.

We have carefully gone through the record. The reason given in the application for condonation of delay before the State Commission for the delay of 2 years 133 days is as under:

"The District Forum has passed the order on 31.03.2015. Due to not appearing of the counsel for the appellant before the DCF ex parte judgment was passed by the learned DCF against the appellant which was learnt to the appellant on 14.08.2017 upon service on notice under section 27, thereafter the appellant contacted his earlier counsel and enquired but could not gather any information so he engaged new counsel and obtained copy of the entire case file on 13.09.2017, prepare appeal and has filed without further delay before the Hon'ble Commission. Delay in filing the appeal is caused because fact of passing order was not in the knowledge, delay is bona fide in which the appellant is not at fault and therefore the delay for the said period is liable to be condoned".

It is seen from the order of the District Forum that the petitioner was proceeded ex parte in the District Forum on 20.02.2015 and thereafter arguments were heard on 31.03.2015. It is an admitted fact that after filing the written statement in 2006, the petitioner and the Counsel did not appear to participate in the proceedings till the date the final order was passed on 31.03.2015. It is also an admitted fact that the petitioners took no interest in the matter or pursue the case either in the District Forum or with its counsel from 2006 onwards.

At the same time, it is also well settled that "sufficient cause" with regard to condonation of delay in each case, is a question of fact.

In the matter of Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), the Apex Court has highlighted the object of Consumer Protection Act particularly expeditious and in expensive remedy to the consumers.

"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 Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:

"The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]".

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 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."

In R.B. Ramlingam Vs. 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."

We are of the view that the petitioner has failed to give sufficient cause by giving cogent / believable reasons and justification to condone the inordinate delay of 2 years 133 days.

Further, we find no jurisdictional error or material irregularity in the impugned order which may call for interference in exercise of powers under section 21 (b) of the Consumer Protection Act, 1986. The revision petition is dismissed.