National Consumer Disputes Redressal
United India Insurance Co. Ltd. vs Newar Metals Pvt. Ltd. on 6 March, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 431 OF 2017 (Against the Order dated 24/08/2016 in Appeal No. 75/2015 of the State Commission Rajasthan) 1. UNITED INDIA INSURANCE CO. LTD. NOW THROUGH ITS RAKESH KUMAR ASSTT. MANAGER, RO-I, OFFICE AT 18 BARAKHAMBA ROAD, 8TH FLOOR, KANCHENJUNGA BUILDING NEW DELHI-110001 ...........Petitioner(s) Versus 1. NEWAR METALS PVT. LTD. THROUGH ITS DIRECTOR PAWAN KUMAR DHOOT, E-1101, RIICO INDUSTRIAL AREA, BHWARI DISTRICT-ALWAR RAJASTHAN ...........Respondent(s)
BEFORE: HON'BLE MRS. REKHA GUPTA,PRESIDING MEMBER
For the Petitioner : Mr Rajesh K Gupta, Advocate For the Respondent :
Dated : 06 Mar 2017 ORDER
REKHA GUPTA, PRESIDING MEMBER
Revision Petition no. 431 of 2017 has been filed against the judgment dated 24.08.2016 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur in Appeal no. 75 of 2015.
2. The facts of the case as per the respondent/ complainant are that the respondent company had taken an insurance policy against burglary in their factory. The said policy was effective from 10.02.2011 to 09.02.2012. On the intervening night of 22nd and 23rd August 2011, a theft took place in the factory and 550 kg of brass wire and 220 kg of brass pins were stolen. A police report was lodged on 23.08.2011 with Police Station Bhiwari. The respondent lodged a claim with the insurance company. The claim was however, repudiated on the ground that FIR was lodged after nine days and the policy covered only burglary and not theft. Hence, a consumer complaint was filed before the District Forum with the prayer:
* Hence, while filing complaint it is humbly requested that the complainant company may please be allowed Rs.3,81,269.39 with interest @ 12% from the date of filing claim from opposite party company with Rs.20,000/- for mental agony and Rs.11,000/- as cost of litigations.
3. The District Consumer Disputes Redressal Forum, Alwar, Rajasthan ('the District Forum') vide its order dated 09.12.2014 while allowing the complaint observed as under:
"Hence while admitting the complaint of the complainant against opposite party it is ordered that the opposite party will pay Rs.3,81,269.39 to the complainant for loss occurred due to theft and also pay interest @ 9% on the said amount with effect from 20.01.2012, the date of filing claim. The opposite party will pay Rs.20,000/- as mental agony and Rs.5,000/- as cost of litigations."
4. Aggrieved by the order of the District Forum, the petitioner insurance company filed an appeal before the State Commission. The State Commission while dismissing the appeal observed as under:
"The learned District Forum has discussed this issue in detail and we are of the view that incident as stated definitely comes under the definition of section 445 of IPC which defines the offence of house breaking. Under proviso 2 of this section, if any person with intention to commit an offence scales the wall to enter the premises, it is a house breaking. Similarly under proviso 1 if any person who enters into a premises by breaking any door and window, it is definitely a house breaking.
The learned counsel for the appellant has cited the judgment in Civil Appeal no. 6277 of 2004 United India Insurance Company Ltd., vs Harchand Rai Chandan Lal. In this case, it was held that in burglary element of use of force and violence is condition precedent and house breaking has to be established by the insured to sustain his claim. In this case when one of the partners of the firm visited the firm's godown, they found 197 bags of gawar were stolen and there was no evidence of any house breaking. Thus, this judgment is not helpful in the present case where the theft has been committed by scaling the boundary wall and then entering by breaking a window of godown.
In view of the above discussions, we find no force in this appeal and the appeal deserves to be dismissed".
5. Hence, the present revision petition.
6. The present revision petition has been filed with delay of 80 days as per the Registry and 45 days as per the petitioner. The reasons given in the application for condonation of delay are as under:
It is submitted that the petitioner has a good case on merits and is likely to succeed before this Commission. It is further submitted that there was a delay of 45 days in filing the present revision petition and if the same is condoned by this Commission as no prejudice would be caused to the respondent on merits of the case.
The impugned order was pronounced on 24.08.2016 and certified copy was applied on 26.08.2016 and the same was delivered on 31.08.2016 and received by the dealing DO on 05.09.2016. The same was forwarded for opinion of a panel lawyer on 12.09.2016 and his opinion was received on 14.09.2016. Thereafter the entire file was forwarded to the Regional Office on 19.09.2016 and received there on 22.09.2016. It was forwarded to a panel lawyer for opinion by the Regional Office on 26.09.2016 and his opinion was received on 03.10.2016. After receipt of the said opinion the entire case file was forwarded to Head Office in Chennai on 05.10.2016 and received there on 10.10.2016. The Head Office then forwarded the file for opinion of a lawyer on his panel on 14.10.2016 and opinion was received on 21.10.2016. Thereafter, the file was forwarded to the Regional Office 1, in New Delhi on 21.10.2016 with recommendation for filing the revision petition and the same was received there on 25.10.2016. It was thereafter handed over to the Counsel on 31.10.2016 for doing the needful. Since, the record of the District Forum was in vernacular language the pleadings of the parties and FIR were sent for translation on 03.11.2016 and translated copies were received on 16.11.2016.
The dealing counsel also asked for evidence by way of affidavit filed by the parties before the District Forum on 24.11.2016. The referring D O informed that the same were not on their file on 01.12.2016. Thereafter the dealing counsel was contacted who also confirmed on February 15, that no evidence by way of Affidavit is there on the file of the District Forum. The revision petition is being filed immediately thereafter, i.e., on February _____, 2017. It is respectfully submitted that it is, therefore, in the interest of justice that the aforesaid delay of 45 days be condoned.
7. I am not convinced with the reasons given for the delay of 80 days. The only reason given for the delay is on the ground of administrative procedures. From the application it appears that the petitioner has lost valuable time in repeatedly referring the matter to a panel lawyers. It was first referred to a panel lawyer by the dealing D O on 12.09.2016, thereafter by the Regional Office on 26.09.2016 and once again by the Head Office in Chennai on 14.10.2016. Even after, the matter was handed over to the counsel on 31.11.2016 by the Regional Office, there was inordinate delay in filing the revision petition which was finally filed only on 17.02.2017.
The Apex Court in Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that "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".
In R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, it has been observed that "We hold 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".
In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed that "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 Section 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 bonafides may fall for consideration; but the scope of the inquiry 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."
In Sow Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807, it was held that "the expression 'sufficient cause' cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such 'sufficient cause' stated in the application and no such interference in the impugned order is called for".
In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:
"The party should show that besides acting bonafide, 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]".
Hon'ble Supreme Court in Post Master General and others vs. Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;
"After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;
"It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest."
The Court further observed;
"It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.
In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.
In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs".
8. Accordingly, we find that there is no 'sufficient cause' to condone the delay of 80 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition is dismissed being barred by limitation.
9. I have heard the learned counsel and also on the merits of the case. The counsel for the petitioner has contended that the FIR was lodged after nine days and that the incident was of theft and not burglary, and for both these arguments he is relying on the FIR.
10. In the complaint the respondent has stated as under with regard to the filing of the FIR:
"3. During the night of 22/23.08.2011 some unknown entered the complainant company by jumping the wall and after breaking the window of store of complainant company, stolen approximately 550 kgs of brass wire and 11,00,000 brass pins of approximately 220 kgs.
4. In the morning the employees and an official of complainant company observed this incidence and came to know about theft of goods on which Shri Dinesh Kumar Shukla, the employee of complainant company lodged FIR on 23.08.2011 at PS Bhiwadi.
5. The complainant company had given written intimation of this incident on 23.08.2011 to opposite company vide letter no. NMPL/ 2011 - 12/ 265 after two days, the surveyor of opposite party company inspected the complete factory and took estimate of loss sustained to complainant company and all documents required by surveyor were provided to him at that time.
7. On 01.09.2011, when the officials of complainant company went to police station, it came to know that FIR was not lodged by police whereas on 23.08.2011 the police officials has inspected the factory premises of complainant company. Then the officials of the complainant company forced to lodge an FIR on which the police officials of PS Bhiwadi prepared a sketch map of factory and recorded necessary statements. There was any bad intention of the complainant company to lodge FIR with delays, whereas when the complainant company informed opposite party company on 23.08.2011 then there was any question not to intimate police station.
14. The opposite party company vide its letter dated 04.09.2012 `repudiated the claim of complainant company on the ground that FIR was lodged after 9 days and the police has registered case under section 379 IPC and the hand written documents has been submitted and repudiated the claim. Whereas the complainant company in its complaint has mentioned that it had informed PS Bhiwadi on 23.08.2011 and the police had done Nakabandi and inspected the complainant factory. This proves that the complainant company had not lodged FIR with any delay whereas the police have registered it with delay for which there was any bad intention of complainant.
15. When all information was given to police then the complainant company is not responsible and that under which section the FIR was to be registered. It was the duty of police and the copies of registers which are prepared had been provided to opposite party and the documents which are prepared through computers were provided".
11. Hence, the basis for repudiation given are that "the reasons given by you are not relevant" are not understood.
12. The District Forum dealt with both these points extensively and observed as under:
"6. As far as the matter of lodging FIR at police station with delay is concerned, the complainant could not be held responsible for it as the complainant had lodged FIR on the same day. Evidence for that is that the complainant had given intimation to opposite party also on the same day. In the same manner, police registered FIR under section 379 IPC in place of section 457 IPC for which complainant could not be held responsible. Due to these two reasons, it could not be said that the complainant has violated the terms and conditions of insurance policy as above both acts were not under control of complainant and done by the police.
We have to ascertain whether burglar has taken place in this matter:
7. A bare perusal of FIR, it is clear that in the FIR lodged with police, the complainant has written that during the night of 22.08.2011 some thieves entered the company and stolen approximate 550 kgs of brass and 11000 lakh brass pins around 220 kgs. When the officials made search, some pins found scattered near window. In the sketch map prepared by police has shown theft done at X place and X place in inside the C store and C store is window and police has mentioned in sketch map and theft took place from window. After bare perusal of this FIR and sketch map it is clear that theft took place after entering of exit from the window of store. It is clear that theft took place from store which falls under the definition of house.
8. Now, we have to see whether this theft taken place from house falls under the definition of burglary?
The opposite party company has argued that meaning of burglary is burglary by forcible enter after house breaking. Housebreaking has been defined under section 445 IPC, which is as under:-
House breaking - A person is said to commit "house breaking" who commits house trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say -
(First) If he enters or quits through a passage by himself or by any abettor of the house trepass, in order of the committing of the house-trespass.
(Second) If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance, or through any passage to which he has obtained access by scaling or climbing over any wall or building.
(Third) If he enters or quits through any passage which he or any abettor of the house - trespass has opened, in order to the committing of the house trespass by any means by which that passage was not intended by the occupier of the house to be opened.
(Fourth) If he enters or quits by opening any lock in order to the committing of the house trespass, or in order to the quitting of the house after a house trespass.
(Fifth) If he effects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault.
Explanation C given in this section is as under:
(Sixth) - If he enters or quits by any passage which he knowns to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house trespass.
A commits house trespass by entering Z's house through a window - this is house breaking.
(9) In this way after bare perusal of this section it is clear that as per opposite company theft took place after entering and exit from the window of store. This place is not from where the complainant comes and goes. This place has been prepared by the thieves. Hence, the theft took place in house of complainant has been done by house breaking.
As the house breaking falls within the definition of burglary and theft took place in complainant company by house breaking. Hence, it is clear this theft falls within the definition of burglary and it is not justified and legal not to consider this theft as burglary by opposite party".
13. The State Commission also in their order has dealt with these issues and has observed as under:
"The learned counsel for the complainant has submitted that incident took place on the store room of the complainant company and the thieves entered by house breaking. They had entered the factory by scaling the boundary wall and entered the godown by breaking window. Thus, it was clear cut case of house breaking".
14. I find from the survey report also that the surveyor has mentioned that:
"On knowing the same both of the night watchman went in the back side of the store and found that some crimping pins are lying outside section widow of the store and noticed that four roads of the section window of the store were in the broken condition. In this way the night watchman concluded that some burglary might be happened. They immediately informed about the incidence of burglary to Shri Harendra, Vinod over telephone.
According to Harendra Yadav and Shri D K Shukla who immediately attended the factory. On making further inquiry, tea walon who informed that the culprits were on three motorcycle with weapons and given threatening to sleep and don't speak anything. Plant manager and Harendra Yadav along with D K Shukla noticed following items lost from the store, which were taken by breaking section window bars of the store.
Brass wire 531.758 kg Cremping pins of 2 MM 7.8 1075000 pcs.
Thus according to insured there was a burglary attempted by known culprits to harm the insured".
15. He has also recorded under observation that "thus from the way of filing of FIR and FR photographs provided by the insured and statement of tea maker we are of the view that culprits might have taken the above said quantity by forceful and violent means and the same is covered under the policy".
16. There are concurrent findings of lower Fora that the incident falls within the category of burglary and that though the respondent had informed the police on 23.08.2011 and the police though they investigated the factory premises on 23.08.2011 itself they lodged the FIR on 01.09.2011. Hence, I do not find any merit in the arguments of the learned counsel for the petitioner.
16. In view of the above, we find that no jurisdictional or legal error or misrepresentation of facts have been shown to us which calls for interference in the exercise of powers under Section 21 (b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Consequently, the present revision petition is dismissed being barred by limitation as also on merit.
...................... REKHA GUPTA PRESIDING MEMBER