State Consumer Disputes Redressal Commission
Emco Ltd vs The New India Assurance Co Ltd on 26 April, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Misc.Application no.MA/16/376 IN CC/16/708
M/s.EMCO Ltd.
Through its General Manager
(Accounts & Commercials)
& Company Secretary
Plot no.F-5, Road no.28
Wagle Industrial Estate
Thane 400 604 .....Applicant/complainant
Versus
The New India Assurance Co.Ltd.
Registered and H.O.
At New India Assurance Building
87, M.G.Road, Fort .........Respondent
Mumbai 400 001.
BEFORE: Smt.Usha S.Thakare, Presiding Judicial Member
D.R.Shirasao, Judicial Member
Per Hon'ble Smt.Usha S. Thakare, Presiding Judicial Member
The applicant/complainant has filed consumer complaint bearing no.CC/16/708 by alleging deficiency in service against the opponent. It is alleged that the insurance claim of sum of Rs.80,12,522/- was wrongly repudiated by the opponent/Insurance Company by repudiation letter dated 11/12/2013. However, there is delay of 217 days in filing the consumer complaint. Therefore, applicant/complainant has requested to condone delay in filing consumer complaint to avoid injustice.
2. According to applicant/complainant -M/s.EMCO Ltd. company has a strong prima facie case on merits. The cause of action has arisen in favour of the applicant on 11/12/2013, when the applicant came to know that insurance claim has been repudiated by the opponent-Insurance Company. However, despite due diligence and prudence, the present complaint could not be filed within two years as envisaged under section 24 of Consumer Protection Act, 1986.
13. Mr.Praveen Kumar Jha, who was the Company Secretary, was taking care of legal matters in the absence of there being any specific legal officer appointed in the Company. Mr.Jha was regularly following up with the opponents requesting them to pay the amount of Rs.80,12,522/-. The opponents failed to respond. Mr.Jha approached the advocate in the month of June 2014 for filing the complaint before the State Commission. However, Mr.Jha resigned from the service of the applicant company and the charge was handed over to one Mr.Vinayak Pathare, sometime in the month of August, 2014. Thereafter, Mr.Pathare was providing information and the necessary details for filing the present matter. However, it took a considerable amount of time as he was not aware of the actual details of the matter and the technicalities involved in the matter with regard to the installation of and commissioning of the machine. As such, it took considerable time to collect all the required information from the staff of the company. Unfortunately, Mr.Pathare, also left the services of the applicant company on 30th April, 2015. After resignation of Mr.Pathare, there was no official in the company who was appointed to or capable to look into the legal matters. As such, the work in the legal department took a major setback. Since Mr.Jha and Mr.Pathare, suddenly left the company, the advocate was not getting any further instructions from the company, and finally, in the month of November, 2015, directly tried to contact the officials of the applicant, so as to find out what was to be done with the said matter as the time limit was running out. After a lot of enquiries, they came across one officer of the company, namely, Mr.Vinod Amin, who is the Deputy Manager, Insurance, who was appraised of the matter. Since Mr.Amin had no authority to take a decision, he approached his higher officers from the Transformers department and was accordingly instructed to look into the matter. Mr.Amin was from the Insurance Department, he was not having any knowledge of the matter. There was no one to hand over the charge of the matter in the legal department. It took considerable 2 time to re-search for the necessary documentation and information and recompile the same, in respect of the said matter.
4. The said documentation was procured by the said officer somewhere around the second week of March, 2016 and the file was then put up before the higher authority of the Transformer Department for discussion and decision. Finally, the higher management officers after due consultation with the President-Transformers department of the company, took a decision to file complaint and the papers were sent to the advocates in the first week of April, 2016. On perusing the papers, advocates found that it was not a simple case of claim as it involved a lot of technical issues and had to be gone into deeply. The advocates had to understand the technical issue first to draft the complaint. Moreover, they were also burdened with their own professional commitments. As such, after various discussions between the complainant and their lawyers on the technical, legal and pecuniary aspects the complaint was finalized and the same is filed along with delay condonation application on 15/07/2016. Therefore, there has been a delay of 217 days in filing the consumer complaint. The applicant states that it has a very good case on merits. In the interest of justice, the delay may be condoned.
5. The opponent/respondent opposed the application by filing detailed say. It is specifically denied that the applicant/complainant has prima facie case on merits. It is submitted that the cause of action to file the complaint actually arose on 12/05/2011 which is the date of short circuit that resulted in damage to the transformer as mentioned in para 4(h) of the complaint. Hence, the complaint ought to have been filed within 2 years from the date of loss i.e. on or about 10/12/2013, whereas, the present complaint is filed on 15/07/2016 i.e. after 2 years and 6 months from the date of cause of action. Applicant/complainant failed to explain the delay by sufficient reasons. Hence, delay condonation application is liable to be dismissed with costs.
36. Heard Learned Advocate Mr.Vinay Menon for the applicant/ complainant. Learned Advocate Mr.Anand Gawand is present with authority letter for the respondent. He has submitted that the say filed by the respondent be treated as arguments. Hence, considered the say filed by the respondent.
7. Admittedly, transformer of the applicant/complainant company failed/ tripped on 12/05/2011 due to short circuit. The applicant /complainant lodged the insurance claim with the opponent Insurance Co. which was repudiated on 05/12/2013. Applicant/complainant filed the complaint on 15/07/2016 along with delay condonation application. There is delay of 217 days in filing the consumer complaint.
8. It is informed that the Company Secretary Mr.Praveen Kumar Jha, who was taking care of legal matters resigned from the services of the applicant company. It is not made clear when Mr.Praveen Kumar Jha tendered his resignation. It is not made clear whether prior to resignation Mr.Praveen Kumar Jha gave notice for intimation of resignation. Advocate was appointed in the month of June 2014 for filing the complaint. After resignation of Mr.Jha, charge was given to Mr.Vinayak Pathare sometime in the month of August 2014. Mr.Pathare also left the services on 30/04/2015. There was sufficient time to give instructions to the advocates who were appointed by the company in the month of June 2014 before leaving the services by Mr.Praveen Kumar Jha as well as Mr.Vinayak Pathare. They were in a position to give instructions to the advocates.
9. After resignation of Mr.Vinayak Pathare, Mr.Vinod Amin, who is Deputy Manager, Insurance was appraised of the matter and was informed that the time limit of two years would end on 11/12/2015. It is not clarified when he approached to his higher officers from the Transformers department. He was on higher position. He could have taken instructions from the staff of the said department, who is well acquainted with the said matter. Apart from that there is a Legal department in applicant company.
4In absence of legal officer, Mr.Praveen Kumar Jha was taking care of legal matters. Legal aid was available to the applicant company. Copies of the resignation tendered by Mr.Praveen Kumar Jha and Mr.Vinayak Pathare are not filed on record. It appears that officers of the applicant company were not diligent. Ultimately, advocates were constrained to make enquiry from the officials of the applicant company. It shows that the officials of the applicant company were not diligent.
10. Opponent rightly pleaded that the conduct on the part of applicant- company would amply indicate that the delay in filing the consumer complaint was due to inefficiency and procrastination on the part of the complainants. We are of the view that period of limitation cannot be extended merely because concerned executives left the services from the employment of the applicant company.
11. It is surprising to say that there was no one in the company to look into the legal matters of the company. The grounds mentioned by the applicant company would amply indicate that delay in filing consumer complaint was an outcome of inefficiency on the part of staff of applicant company.
12. In the case of Anshul Aggarwal Vs. New Okhla Industrial Development Authority ~ reported in (2012)-14-SCC-578, highlighting the object and scope of the Act and deprecating entertainment of belated petitions, the Hon'ble Supreme Court had observed that entertainment of highly belated petitions defeats the very object of expeditious adjudication of the consumer dispute.
13. In the case of R. B. Ramlingam Vs. R. B. Bhavaneshwari ~ reported in 2009-(2)-Scale-108, Apex Court held and observed 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.
514. In the case of Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed 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."
15. The above rulings acted as a guideline while deciding the application. Unexplained delay cannot be condoned for want of sufficient reason. The applicant company was not diligent in filing the complaint. Diligent steps were not taken by the applicant company. We are of the opinion that applicant company failed to explain delay of 217 days in filing the consumer complaint. Misc. application for condonation of delay deserves to be rejected for want of sufficient reasons. Hence, we pass the following order:-
ORDER Misc.application for condonation of delay is dismissed. Consequently, consumer complaint does not survive for consideration. Pronounced on 26th April, 2017.
[USHA S.THAKARE] PRESIDING JUDICIAL MEMBER [D.R.SHIRASAO] JUDICIAL MEMBER Ms. 6