VINEETA AGARWAL vs BENGAL UNITECH UNIVERSAL

This First Appeal, under section 19 of the Consumer Protection Act, 1986 (for short "the Act"), has been filed by the Complainant, against order dated 11.07.2012, passed by the West Bengal State Consumer Disputes Redressal Commission at Kolkata (for short "the State Commission"), in Complaint Case No.97 of 2011. By the impugned order, the State Commission has held that once an amicable settlement had been arrived at between the parties, disposed of the earlier Complaint of the Complainant on that basis, the subsequent Complaint on the same cause of action was not maintainable on the ground of constructive res-judicata and has accordingly dismissed the Complaint, preferred by the Appellant herein.

It is pointed out by the office that the present Appeal is barred by limitation, as there is a delay of 425 days in filing the same. Application praying for condonation of the said delay has been filed alongwith the Appeal. In paragraphs 2 to 11 of the said application, the explanation furnished for the delay is as under: "2. That the copy of the impugned order dated 11.07.2012 was issued for dispatch to the Appellant on 30.11.2012.

That a copy of the order impugned was obtained from the learned State Commission in the second week of December, 2012.

That in December, 2012 the Appellant had to leave for her native village of Mujaffarpur in the State of Bihar and seriously fell ill and had been suffering from various ailments including female diseases.

That the Appellant was under continuous medical treatment of Dr. R.K. Singh, MD, M.R.S.H. (London) who started medical treatment of the Appellant from the early part of December, 2012 and advised medicines and rest.

Given the nature of ailments of the Appellant, the Appellant could not take the risk of coming down to Kolkata.

That the Appellant was periodically examined and treated by Dr. Singh who prescribed change of medicine from time to time and was advised rest at Muzaffarpur (Bihar).

That the medical papers issued by the physician of the Appellant have been annexed to the Appeal.

That the Appellant could be able to come to the city of Kolkata only in the month of January, 2014 and contacted her lawyer.

That the Appellant''s lawyer at Delhi was provided with all papers who took some time for study of all papers and then advised the Appellant for preferring Appeal with a prayer for contonation of delay.

That the lawyer was then instructed by the Appellant to file Appeal and then the lawyer took some time to draft Appeal and file the same before this Hon''ble commission"

We have heard learned counsel for the Appellant on the question of delay.

At the outset, it may note that as, prima facie , we were not satisfied with the explanation furnished in the application, seeking condonation of delay, vide order dated 19.11.2014, we had permitted the Appellant to file a better affidavit in this regard. However, the Appellant has chosen not to supplement the explanation already furnished. Accordingly, we proceed to examine the same on the basis of material available on record.

In our view, the explanation furnished by the Appellant is far from being satisfactory. Though the Complaint had been dismissed by the State Commission on 11.07.2012 in the presence of counsel for the parties, yet neither Counsel for the Appellant nor she herself made any attempt to obtain a certified copy of the impugned order from the State Commission for about five months. If the Appellant had not received a free certified copy of the impugned order in the ordinary course within a reasonable period, she could have contacted her Counsel to get the requisite feedback on the status of the order. We are unable to fathom any reason, which prevented her from taking any steps in this behalf for such a long period. There is also no averment as to what action the Appellant had taken against her Counsel, who had allegedly failed to discharge his duties in the manner the Appellant had expected him to perform. Even after receipt of the certified copy of the impugned order, bearing in mind the limitation period for filing an Appeal against the same, as stipulated under Section 19 of the Act, the Appellant was expected to have taken immediate action for filing the Appeal, since it was already barred by limitation. However, without doing the needful for filing the Appeal before this Commission, the Appellant is stated to have proceeded for her native place, where she allegedly had fallen ill. Even if we accept the averment of the Appellant that she had fallen ill at her native place and could not come to Kolkata prior to January, 2014, the fact remains that in such a situation she could have authorized somebody to pursue the case on her behalf, which she failed to do. Thereafter the Counsel, who had been assigned the case, also took over a month for filing the Appeal before this Commission. The cumulative effect of all the above was that the Appeal was barred by limitation by 425 days.

In view of the above, we are of the view that the Appellant has been thoroughly negligent in prosecuting her cause and the explanation furnished by her lacks bonafides as well.

Bearing in mind the observations of the Hon''ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority [(2011) 14 SCC 578] to the effect that while deciding an application for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Act for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if highly belated petitions filed against the orders of the consumer foras are entertained, we are not inclined to condone an inordinate delay of 425 days in filing of the present Appeal.

While coming to the merits of the case, in our view, the State Commission was justified in dismissing the Complaint. From the record, we find that the earlier complaint of the Appellant, No.50 of 2010, which had been filed praying for refund of 47,33,849/-, deposited by her with the Respondent, along with 18% interest per annum besides compensation of 2,00,000/- and penal damages of 50,000/-, had been dismissed by the State Commission since the parties had arrived at an amicable settlement, which had formed part of the impugned order. As per the terms and conditions of the said settlement, the Appellant was to be refunded certain amount by the Respondent. Now, the contention of the Appellant that being a helpless lady she was forced to sign the compromise deed and receive the paltry amount, after certain deductions, does not inspire confidence. It was the Appellant who had filed the compromise deed, signed by her, before the State Commission and taking cognizance of the said compromise deed, the State Commission had dismissed the earlier Complaint, as requested by the Appellant. In such a situation, the second Complaint on the same cause of action is nothing but sheer abuse of process of law. The State Commission, for the reasons recorded in the impugned order, has rightly dismissed the second Complainant as not maintainable on the ground of constructive res-judicata , which does not require any interference in our Revisional Jurisdiction.

In view of the above, the Appeal is dismissed on the ground of limitation as well as on merits. No costs.