State Consumer Disputes Redressal Commission
1. Hdfc Ergo General Insurance Company ... vs Barindeer (Infact Birinder) Singh on 2 April, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 111 of 2013 Date of Institution : 18.03.2013 Date of Decision : 02.04.2013 1. HDFC Ergo General Insurance Company Limited, SCO No.124-125, Sector 8-C, Chandigarh. 2. HDFC Ergo General Insurance Company Limited, 6th Floor, Leela Business Park, Andheri Kurla Road, Andheri (E), Mumbai 400059, through its Managing Director. Both through S.C. Vats Appellants/Opposite Parties V e r s u s Barindeer (infact Birinder) Singh son of Sh. Mohinder Singh, C/o SCO No.179-180, 2nd Floor, Sector 8-C, Madhya Marg, Chandigarh. ....Respondent/complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by:Sh. Rajesh Sharma, Advocate Proxy for Sh. Paras Money Goyal, Advocate for the applicants/appellants.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 19.10.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Parties (now appellants), as under:-
In view of the above discussion, the present complaint is allowed and the opposite parties are directed as under :-
(i) to pay the assessed claim of Rs.1,64,532/-.
(ii) to pay Rs.30,000/- as compensation for mental agony and harassment suffered by the complainant
(iii) to pay Rs.10,000/- as costs of litigation.
This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) & (ii) shall carry interest @ 18% from the date of letter of repudiation (i.e. 29.6.2011), till actual payment besides payment of litigation costs.
2. The facts, in brief, are that the complainant, being the owner of Chevrolet Cruze car, got the same insured, from the Opposite Parties, for the period from 15.04.2011 to 14.04.2012, after the payment of premium, in the sum of Rs.15,582/-. It was stated that, at the time of obtaining the Insurance Policy, the complainant informed the representative of the Opposite Parties that earlier the said car was insured with ICICI. It was further stated that, on 19.05.2011, at about 9:45 A.M, the said car, met with an accident, near Furniture Market, Chandigarh. The car was taken to M/s Dynamic Motors, Chandigarh, for repairs. It was further stated that survey was conducted by Er. Mohit Sharma, Surveyor and Loss Assessor. The Surveyor and Loss Assessor, vide his report dated 27.6.2011, assessed the loss, to the tune of Rs.1,64,532.91Ps.
Thereafter, the complainant lodged the claim, with the Opposite Parties. It was further stated that the Opposite Parties, vide letter dated 29.6.2011, repudiated the claim of the complainant, on the ground, that he had taken claim, in respect of the previous Insurance Policy. A legal notice dated 19.7.2011, was also served upon the Opposite Parties, to redress the grievance of the complainant, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay the claim amount of Rs.1,64,532.91Ps., assessed by the Surveyor and Loss Assessor, towards the loss of vehicle, alongwith penal interest @ 18% per annum; and compensation, in the sum of Rs.1.00 lac, on account on financial loss, mental agony and physical harassment.
3. The Opposite Parties, in their joint written version, while admitting the factual matrix of the case, stated that the said car was got insured, by the complainant, with them, subject to the terms and conditions of the Policy. It was further stated that the Insurance Policy was issued, in favour of the complainant, on the basis of the declaration, made by him, in the proposal form. It was further stated that the complainant, in order to claim no claim bonus, gave wrong declaration, in the proposal form, to the effect, that he had not taken any insurance claim, from the previous insurer, whereas, it was no so. It was further stated that the claim filed by the complainant, was rightly repudiated by the Opposite Parties, as the complainant had received the Insurance Policy, by concealing the material facts, at the time of filling up and signing the proposal form. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the Counsel for the Parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
7. Alongwith the appeal, an application for condonation of delay of 107 days, in filing the same (appeal), has been moved. The grounds, set up in the application, are to the effect, that the applicants/ appellants, for the first time, came to know about the passing of the impugned order dated 19.10.2012, in the second week of November 2012. It was stated that, immediately, thereafter, instructions were sought by the Counsel, from the Offices of the Opposite Parties, located at various far off places, which required coordination, as a result whereof, the delay of 107 days, in filing the appeal occurred. It was further stated that due to the aforesaid reasons, the appeal could not be filed, in time. It was further stated that the delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
8. We have heard the Counsel for the applicants/appellants, on the application, for condonation of delay, as also, in the main appeal, at the preliminary stage, and have gone through the record of the case, carefully.
9. First coming to the application, for condonation of delay, it may be stated here, that the same is liable to be dismissed, for the reasons, to be recorded hereinafter. The question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 107 days, in filing the appeal, under Section 15 of the Act. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab & Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels ( India): 93 (2001) DLT 558, Delhi High Court, it was held as under:-
No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.
10. In Oriental Insurance Co. Ltd.
vs. Kailash Devi & Ors. AIR 19107 Punjab and Haryana 45, it was held as under:-
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 bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.
11. In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-
We hold that in each and every case the Court has to examine whether delay in filing the Special 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.
12. In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-
The party should show that besides acting bona fide, 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]
13. In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-
Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay
14. In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-
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
15. A bare reading of the first proviso, engrafted to Section 15 of the Act, makes it clear that the material part of the language thereof is pari-materia to Section 5 of the Limitation Act, 1963. As per the report of office of the District Forum, copy of the order impugned, was received by the applicants/appellants/Opposite Parties, by hand, on 02.11.2012. The version set up, by the applicants/ appellants, in the application that, on receipt of a copy of the order impugned, necessary instructions by the Counsel, from various Authorities of the Offices of the Opposite Parties, located at various far off places, were sought, which took sufficient time, resulting into delay of 107 days, in filing the appeal, is not established, through any cogent material. The averments, contained in the application, are only vague and indefinite. If, after receiving the certified copy of the order impugned, the Officers/Officials of the Opposite Parties/applicants/ appellants, did not bother that the appeal had to be filed, within the prescribed period of limitation, as envisaged by Section 24-A of the Act, and, on the other hand, acted in a highly negligent and irresponsible manner, and woke up from their deep slumber, after 107 days, then no indulgence could be shown to them. The applicants/ appellants did not act, with due diligence, resulting into delay of 107 days, in filing the appeal, which is more than three times, beyond the prescribed period of limitation. The cause, set up by the applicants/appellants, in the application, for condonation of delay, could not be said to be such, as was beyond their control, which prevented them, from filing the appeal, in time. The mere fact that the concerned Officers/Officials of the Office of the applicants/appellants, acted in a leisure mood, without envisaging the consequences, which could ensue, on account of non-filing of the appeal, within the period, prescribed under Section 15 of the Act, does not mean that they could be shown any undue indulgence. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 107 days, cannot be condoned. The principle, of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.
16. The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory on the Commission, to condone the delay. The answer to this question, is in the negative. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was held as under:-
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.
17. It is evident, from the principle of law, laid down, in Ram Lal & Ors.s case (supra), that even 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, requires the Commission, to take into consideration, all the relevant factors, and it is at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory on the applicants/appellants, to take immediate steps, to ensure that the appeal was filed within the prescribed period, as envisaged by Section 15 of the Act. However, the Officers/Officials of the applicants/ appellants, just slept over the matter and did not take timely steps to file the appeal, in time. It was, thus, a case of complete lack of bonafides and inaction, on the part of applicants/appellants. The principle of law, laid down in Ram Lal & Others case(supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission should exercise its discretion, in favour of the applicant/appellant, in condoning the delay.
18. The next question, that arises for consideration, is, as to whether, the Commission can decide the appeal, on merits, especially, when it has come to the conclusion, that there is no sufficient cause, for condonation of delay of 107 days, in filing the same (appeal). The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India Vs B.S. Agricultural Industries (I) II (2009) CPJ 29 (SC). The question before the Apex Court, was with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act. The Apex Court was pleased to observe as under ;
Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:
24A.
Limitation period(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.(2)
Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, shall not admit a complaint occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.
19. The principle of law, laid down, by the Apex Court in State Bank of Indias case (supra), is equally applicable to the filing of an appeal U/s 15 of the Act. In case, this Commission, decides the appeal, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in State Bank of Indias case (supra).
20. For the reasons, recorded above, the application for condonation of delay of 107 days, being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal, under Section 15 of the Act, is also dismissed, being barred by time, at the preliminary stage, with no order as to costs.
21. Certified copies of this order, be sent to the parties, free of charge.
22. The file be consigned to Record Room, after completion Pronounced.
April 2, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg