M/S. Auva Gas Agency vs Consumer Union Vairengte South Branch

REVISION Petition no. 4697 of 2013 has been filed under section 21 (B) of the Consumer Protection Act, 1986 against the order dated 03.10.2013 passed by the Mizoram State Consumer Disputes Redressal Commission, Aizawl ( ''the State Commission '') in State Consumer (Misc.) no. 01 of 2013.

AS per the facts gleaned from the order of the Consumer Disputes Redressal Forum, Kolasib District, Kolasib ( ''''the District Forum '''') a written complaint from Consumer Union, Vairengte South Branch -respondent herein, signed by Pu K Sangbuanga, President and Pu Z Lalremliana, Secretary of the Consumer Union Branch was submitted to the President, District Forum Kolasib District on 22nd August 2012 against M/s Auva Gas Agency, Vairengte - petitioner. In support of their complaint, the respondent/ complainant furnished complaints which they had received in original from 42 aggrieved consumers. The following points were mentioned in the complaint. (i) Excessive rate for new connection of LPG; (ii) Non -issue of receipt by agency; (iii) Inferior goods supplied; (iv) Non gas lighter is supplied; (v) MRP is not printed on the supplied materials; (vi) Excessive charge (Rs.300/ -) for the loss of Green card; and (vii) Relatives of consumers from Saipum and Saiphai area are refused to buy LPG even with green cards.

The demands made by the respondent/ complainants were as follows: (i) Refund of excess amount collected by opposite party to all consumers; (ii) Petitioner/ Opposite party should bear all monetary and physical expenses to appear before the District Forum; (iii) A sum of Rs.200/ - shall be paid to all consumers as compensation for mental agony; and (iv) All other expenses of the leaders of Consumers Union should be borne by the petitioner/ opposite party.

THE District Forum vide its order dated 07.12.2012 allowed the complaint and gave the following order: (i) The respondent M/s Auva Gas Agency, Vairengte should return a sum of Rs.770/ - to each existing customer on production of consumer card, for excessive price collected from them, within one month from the date of issue of judgment and order; (ii) The respondent should pay a sum of Rs.1960/ - to the complainants - Consumer Union, Vairengte South Branch to cover the travelling expense of 14 persons at the rate of Rs.140/ - to and from Kolasib, within a month from the date of issue of Judgment and Order; (iii) The respondent should from now onwards, issue receipts to all their customers at the time of giving a new connection and for any other transaction with the customers; (iv) The respondent shall repair defective materials supplied by them free of cost or exchange with new ones. They should also ensure that the materials supplied are of good quality. (quality assured); (v) The respondent should sell LPG to representatives of consumers on production of consumer cards and letter of representation countersigned by their respective VCPs; (vi) The respondent shall never sell at prices exceeding MRP nor collect charges higher than IOC guidelines; and (vii) Failure of payment within stipulated time will entail interest at a rate of 12% per annum.

AGGRIEVED by the order of the District Forum, the petitioner/ appellant filed an appeal before the State Commission. Along with the appeal a miscellaneous application for condonation of delay. The reasons given in the application for condonation of delay were as follows: ''''On receiving the copy of the judgment and order dated 7th December 2012 on 17th December 2012, and being aggrieved by the said judgment and order, the appellant/ opposite party has been preparing without delay for this appeal but due to some unavoidable circumstances, the instant appeal could not be filed within 30 days from the date of judgment and order dated 7th December 2012, Hence, the instant application ''''.

The State Commission vide its order dated 3rd October 2013, dismissed the petition with the following observations: ''''We have considered the statements made in paragraph 1 and 2 of the petitioner. In paragraph 1, it is said that the judgment and order was received by the petitioner/ appellant on 17.12.2012. It is also indicated in paragraph 2 of the petitioner that after receipt of judgment and order dated 12.12.2012 appeal was prepared but the same could not be filed due to some unavoidable circumstances. Except this statement there is nothing in the petitioner. We therefore find no good ground to accept this petitioner and condone the delay. ''''

HENCE , the present revision petition.

THE main grounds for the revision petition are as follows: i. The State Commission has failed to appreciate that a minimal delay of 15 days (actual delay was of 5 days) did not warrant dismissal of the appeal filed by the petitioner herein, more so when the delay was unintentional, bona fide and was not actuated by mala fide intentions. The said act is a benevolent legislation and its provisions must be construed strictly so that substantial justice can be meted out by the Consumer Forum in every individual case. ii. The State Commission ignored the settled position of law that procedural law, particularly that pertaining to statutory limitation period, must be construed liberally, more so when such delay is unintentional and bona fide and is not actuated by malice, negligence, inaction or carelessness of the litigant. It was held that procedural laws are handmaid of justice and should be interpreted with a liberal approach wherein the intention of the court must be not to prevent a litigant from pursuing his legal remedies and an opportunity must be given to him to contest a matter. Procedural law is subservient to substantive law and procedural irregularities, particularly those which are as minor as in the present case, must give way to substantial justice to be delivered to the parties to the litigation. iii. The State Commission ignored the proposition of law that a party to the litigation cannot be punished or made to suffer because of a fault or an inadvertent error on the part of his / her counsel. The fact that the application for condonation of delay, being State Consumer (Misc) No. 1 of 2013, was inaptly drafted was an inadvertent and a bona fides error of the then counsel for the petitioner who was only one year into the profession and in any case was not the fault of the petitioner himself. In such circumstances, the petitioner being the litigation could not have been allowed to suffer on account of the error on part of its counsel and the State Commission should have condoned the delay, more so because the delay was of merely five days which cannot in any circumstances be termed as ''''inordinate delay '''' requiring a detailed explanation by the petitioner. iv. The said appeal filed by the petitioner before the State Commission was accompanied by an application for condonation of delay which the local counsel drafted in the mistaken belief that the delay in filing the said appeal was of 15 days. The said counsel was under the impression and wrong legal notion that the statutory period of limitation would commence from the date of pronouncement of the order, i.e., 07.12.2012, whereas in view of the law laid down by the Hon ''ble Supreme Court in the case of Housing Board Haryana vs Housing Board Colony Welfare Association (1995) 5 SCC 672, the period of limitation would commence from the date of receipt of the said order, i.e., 17.12.2012. Hence, there was a delay of merely five days in filing the said appeal and not of fifteen days as argued by the said counsel in the court in the application for condonation of delay filed before the State Commission.

We have heard the learned counsel for the petitioner and have also gone through the records of the case. Counsel for the petitioner failed to give any supporting evidence regarding the date on which they received the order of the District Forum dated 17.12.2012. The reasons given in the application are vague. No date wise justification has been given and the only justification given was that ''''due to some undue circumstances, the instant appeal could not be filed within 30 days ''''. The application does not even mention the number of days of delay. As per the grounds of delay, the delay stated to be five days, whereas the State Commission has noted the delay of 15 days.

COUNSEL for the petitioner also argued that according to him there was a delay of five days whereas the State Commission has noted the delay by 15 days, but he could not sustain same without any evidence. He also tried to argue that the litigant cannot be allowed to suffer on account of the error on the part of its counsel. However, nowhere in the application for condonation of delay before the State Commission has the role of the counsel of the counsel or his contribution to the delay been mentioned

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. The Apex Court In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), has laid down: ''''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 and 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] ''''.

INRAM 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. ''''

Hon ''ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed; ''''Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora. ''''

THUS , there is no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, two Fora below have given a detailed and well -reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Accordingly, the present revision petition is hereby, dismissed with a cost of Rs.5,000/ - (Rupees five thousand only).

PETITIONER is directed to deposit the cost by way of demand draft in the name of ''Consumer Legal Aid Account of this Commission '' within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation. List on 4th July, 2014 for compliance.