State Consumer Disputes Redressal Commission
Kamlesh Kumar vs Icici Lombard Gen.Ins.Co.Ltd. & Anr. on 22 April, 2010
Appeal No.1477/2009 Kamlesh Kumar V. ICICI Lombard General Insurance Co.Ltd. & anr. Before Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethiya-Member
Mr.Sashi Kumar Pareek-Member Shri Lokesh Sharma,counsel for the appellant Date of Judgement: 22.04.2010 BY THE STATE COMMISSION:
Heard at admission stage.
This appeal has been filed before this Commission on 11.11.2000 with a delay of 183 days by the complainant appellant for enhancement of the amount against the order dated 31.3.2009 passed by the District Forum-I,Jaipur in complaint no.1176/07 by which the complaint filed by complainant appellant was allowed against the respondents insurance company in the manner that the respondents insurance company were directed to pay a sum of Rs.2,33,266/- as amount of compensation for the damage of the vehicle as assessed by the surveyor and further interest @ 6% p.a wef 14.8.2007 and if the above amount was not paid within one month the rate of interest charged would be @ 12% p.a in place of @7% p.a and alongwith the appeal an application for condonation of delay 2 u/s 5 of the Limitation Act has been filed by the complainant appellant.
It may further be stated here that when the impugned order dated 31.3.2009 was passed by the District Forum-I,Jaipur the counsel for the complainant appellant was present.
4. It may be stated here that the grounds which have been taken in the application filed u/s 5 of the Limitation Act by the complainant appellant may be summarised in the manner that since after passing of the impugned order dated 31.3.09 some time was spent in consultation with the Lawyer,therefore, the delay be condoned and appeal be heard on merits.
5. The question for consideration in the present appeal is whether the application u/s 5 of the Limitation Act should be allowed or not and whether the delay of 183 days should be condoned or not.
5. In our consideration opinion, the appeal is to be dismissed as being time barred because of the following reasons:
6. In this case since there is an inordinate delay of 183 days,therefore,the complainant appellant has to explain the delay made thereafter day by day. In other words,in showing sufficient cause for condoning the delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed.
It may further be stated here that a statutory period for 3 filing appeal as provided by Section 15 of the C.P.Act,1986 is of 30 days and it was further observed in that section that the State Commission may entertain an appeal after the expiry of the said 30 days if it is satisfied that there was sufficient cause for not filing the appeal within that period.
8. The words 'sufficient cause' and 'satisfied' used in the proviso are in pari material with the words used in section 5 of the Limitation Act,1963 and its predecessor statute of 1908.
9. The party has to show as to why he did not file an appeal on the last day of limitation prescribed. That may inevitably mean that the party will have to show sufficient cause not only for not filing the appeal on the last day but to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning the delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed.
10. The Hon'ble Supreme Cout in the case reported in AIR 1962 SC 36 had observed in the following manner:
"Section 5 of the Limitation Act is a hard task master and judicial interpretation has encased it within a narrow compass. A large majority of case-law has grown around section 5,its highlights being that one ought not easily to take away a right which has accused to a part by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days' delay..."4
11. The Hon'ble Supreme Court in the case of State Bank of India V. B.S.Agricultural Industries (I) reported in 2009CTJ 481 (Supreme Court) (CP) while interpreting the Section 24A of the C.P.Act,1986 has observed in the following manner:
"The provision of Section 24A of the Consumer Protection Act,1986 is peremptory in nature and requires a consumer forum to see before it admits a complaint that it has been filed within two years from the date of accrual of cause of action. The forum,however,for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown."
12. The law and ratio laid down by the Hon'ble Supreme Court in the case of State Bank of India V. B.S.Agricultural Industries(I) supra may also be applied when the issue in an appeal was whether the delay in filing the appeal should be condoned or not.
13. Taking into consideration the law laid down by the Hon'ble Supreme Court in the above two cases supra,if the facts of the present case are examined,it clearly appears that delay in the present case was such a delay that could not be condoned though this Commission is of the view that condoning the delay in filing the appeal should be liberally construed but delay of 183 days could not be said to be such a delay which could be condoned specially when the counsel for the complainant appellant was present before the District Forum when the impugned order dated 31.3.09 as passed. Had there would have been a delay of 20 or 50 days etc., the position would have been different one.
The proof of sufficient cause is a condition precedent for 5 the exercise of discretionary jurisdiction vested in this Commission and this aspect is missing in this case.
1. Thus,this Commission comes to the conclusion that the complainant appellant has miserably failed to substantiate his case for presenting the appeal after such a long delay and for that reason,application filed u/s 5 of the Limitation Act deserves to be rejected and the same is rejected and when the application for condonation of delay is rejected,the appeal filed by the complainant appellant is also dismissed as being time barred.
Member Member President A/G