Dhirubhai Naranbhai Patel, J. - (1.) THESE writ petitions have been preferred against the order passed by the State Consumer Disputes Redressal Commission, Jharkhand, Ranchi in Appeal Nos. 311 and 312 of 2006 as well as in Appeal Nos. 322 and 323 of 2006 whereby the Consumer Disputes Redressal Commission had not condoned the delay of 195 to 197 days in all the aforesaid four appeals. Thus, these petitioners are praying for condonation of delay with some reasonable costs, so that Appeal nos. 311 and 312 of 2006 and Appeal Nos. 322 and 323 of 2006 may be heard on merits, before the State Consumer Disputes Redressal Commission.
(2.) LEARNED counsel for the petitioners submits that the respondents were the complainants before the Consumer Forum at Hazaribagh. They filed complaint to the effect that M/s. Tata Engineering and Locomotive Company had not sold proper vehicle through their dealer and within guarantee period, there were damaged caused to the body of the vehicles, in question, and because of these damages, Consumer Forum at Hazaribagh had passed a common order in favour of the present respondents, which was challenged by these petitioners before State Consumer Disputes Redressal Commission, Jharkhand, Ranchi by way of Appeals under Section 15 of the Consumer Protection Act, 1986. The time limit of thirty days for preferring appeal having already expired, applications were also preferred by these petitioners for condoning the delay of 195 to 197 days in filing the Appeals along with their aforesaid four appeals before the State Consumer Disputes Redressal Commission (to be referred as "State Commission" for the sake of brevity). It is further submitted by learned counsel for the petitioners that several reasons have been mentioned in the delay condonation application inter alia that the certified copy was never received by the petitioners (original appellants) as envisaged under Rule 4 (10) of the Bihar Consumer Protection Rules, 1987 (hereinafter referred to as the Rule, 1987). It is further submitted that when the petitioners had received notices in Execution Case Nos. 10 of 2006 and 16 of 2006, they immediately applied for certified copy and simultaneously preferred Appeals before the State Commission and hence, there was a delay in preferring the Appeals. These facts have been stated in the memo of the Appeals as well as in the memo of delay condonation applications that the petitioners had never received copy of the order passed by the District Consumer Forum, Hazaribagh as envisaged under Rule 4(10) of the Rules, 1987. These facts have not been denied by the respondents before the State Commission and hence, the order passed by the State Commission of not condoning the delay and thereby dismissing the appeals, deserves to be quashed and set -aside, by imposing a reasonable costs. It is further submitted that these petitioners have got a very good case, on merits also, which will be agitated before the State Commission, at Ranchi. In fact, these respondents were carrying limestones in the body of the tippers, in question, and therefore, there was much possibility of damaging the body of the tippers. Learned counsel appearing on behalf of respondents has submitted that efficacious alternative remedy is available against the order passed by the Consumer Commission, Jharkhand, Ranchi viz. Before the National Consumer Disputes Redressal Commission at New Delhi under Section 21 of the Act, 1986. It is also submitted by the learned counsel for the respondents that, in fact, these petitioners had applied for certified copy after the period of limitation and hence, they got the certified copy of the orders passed by the Consumer Forum, Hazaribag on 1st August, 2006. These aspects of the matter have been properly appreciated by the State Commission. It is further submitted that in fact, these petitioners are not ignorant of the order passed by the District Consumer Forum since in presence of their advocates the said order was passed and therefore, these petitioners should have applied for certified copy immediately and as such, no error has been committed by the State Commission in not condoning the delay and hence, these writ petitions may not be entertained by this Court. Learned counsel for the respondents have also placed their reliance on the decisions rendered by the Hon'ble Supreme Court in the case of Om Prakash Saini Vs. D.C.M. Ltd. & others reported in : (2010)11 SCC 622 and in the case of Nivedita Sharma Vs. Cellular Operators Association of India reported in : 2011(14) SCC 337.
(3.) HAVING heard counsel for both sides and looking to the facts and circumstances of the case we, hereby, quash and set aside the order passed by the State Consumer Disputes Redressal Commission, Jharkhand, Ranchi dated 31st August, 2006 passed in Appeal Nos. 311 and 312 of 2006 and in Appeal Nos. 322 and 323 of 2006 mainly for the following facts and reasons: "(i) The respondents are the original complainants who had preferred Complaint Case nos. 114 of 2004 and 117 of 2004 before the District Consumer Disputes Redressal Forum, Hazaribag. The main grievance in the Complaint case as ventilated by the respondents, is about the damages caused to the body of the tippers, in question, within the guarantee period. (ii) After hearing both parties the District Consumer Disputes Redressal Forum, Hazaribag had passed a detailed speaking order on 28th December, 2005 in favour of the respondents. Paragraph Nos. 24 and 25 of the said order reads as under: "24. For the reasons stated above both the above noted complaint cases are allowed in part. Accordingly, we direct the manufacturer (opposite party no. 3) and the dealer (opposite party no. 1) to replace the defective body of both the vehicles of the complainants firms or to pay Rs. 1,00,000/ - (Rupees one lac) as cost thereof together with Rs. 50,000/ - (Rupees fifty thousand) as damages, compensation for harassment add litigation cost with interest @ 12 % per annum on them from the date of purchase of the vehicles i.e. 12.5.2003 till final payment/Realization jointly and severally to each of the complainants of the above noted cases within one month from the date of this order, failing which each of the complainants would be entitled for execution of this order through the process of the Forum including steps as provided under Section 27 of the Act. 25. Issue copy of the order to both the parties free of cost." (iii) It further appears that these petitioners in the memo of the appeals as well as in the delay condonation application have stated about non -supply of certified copy by the District Forum as required under Rule 4 (10) of the Rules, 1987 (enacted under Sub -Section 2 of Section 30 of the Consumer Protection Act, 1986) which reads as under: "4(10) Orders of the District Forum shall be signed and dated by the members of the District Forum constituting the Bench and shall be communicated to the parties free of charge." (Emphasis supplied) In view of the aforesaid provisions, it is mandatory on the part of the District Commission to communicate the order passed by it to both the parties, free of cost. But, this mandatory provision was not followed by the District Forum, Hazaribag. This was a reason for delay in preferring the appeals. This aspect of the matter has not been properly appreciated by the State Commission, while passing impugned order dated 31st August, 2006 and hence, the same deserves to be quashed and set -aside. (iv) It further appears that the fact stated by these petitioners in the memo of the appeal as well as in the delay condonation application about the non supply of certified copy by the District Forum as required under Rule 4(10) of the Rules 1987, has not been denied by the respondents. This is the second reason for setting aside the order passed by the Consumer Commission. (v) It appears that the State Consumer Commission had called for a report from the District Forum of Hazaribag on the following three grounds. (a) Whether the order was reserved after hearing the parties by the Consumer Forum? (b) Whether the date of pronouncing the judgment was notified in the cause list by the District Consumer Forum; and (c) whether copy of the order passed was handed over to the appellants by the District Consumer Forum? The aforesaid questions were raised by the State Consumer Commission in its order dated 17th August, 2006 in Appeal Nos. 311, 312, 322, 323 of 2006 and in pursuance thereof, a report was given by the District Consumer Forum, which is silent about giving copy of the order passed by the District Consumer Forum, as required under Rule 4(10) of 1987. This aspect of the matter has not been properly appreciated by the State Consumer Forum while passing the order dated 31st August, 2006. (vi) It further appears from the facts of the case that the respondents(original complainants) had instituted Execution case no. 10 and 16 of 2006, in which notices were issued which were served upon these petitioners. That is how these petitioners came to know about the fact that the District Consumer Forum had already signed the order dated 28.12.2005 passed by it in Complaint cases nos. 114 and 117 of 2004 and, thereafter, immediately they preferred appeals and simultaneously applied for the certified copies. Thus, the fact remains that the copy had not been supplied to these petitioners as envisaged under Section 4(10) of the Rules, 1987. These facts have been referred to in the memo of appeals as well as in the delay condonation application, which have also not been denied by the respondents. (vii) Counsel appearing on behalf of respondents submitted that the order was passed by the District Consumer Forum in presence of the advocates of these petitioners and in presence of their responsible knowledgeable officers. So far as delay condonation is concerned, as stated hereinabove, it is because the petitioners have not received certified copy of the order passed by the District Consumer Forum dated 28.12.2005, as per Rule 4(10) of the Rules, 1987 (viii) The judgments upon which the counsel for the respondents are relying upon are of no help to them mainly for the reasons that: (a) The present writ petitions have been preferred against the order passed by the State Consumer Commission for not condoning the delay. (b) Had there been any order passed by the State Consumer Commission, on the merits of the case, the efficacious alternative can be availed by these petitioners under the Consumer Protection Act, 1986. (c) The facts of the present case and the facts of the aforesaid reported two decisions viz. : (2010) 11 SCC 622 and : (2011) 14 SCC 337 are different. The aforesaid two reported decisions are based upon the final order passed by the Consumer Commission on the merits of the matter whereas, in the instant case the delay has not been condoned by the Consumer Commission and therefore, these writ petitions are tenable at law.";