State Consumer Disputes Redressal Commission
Future Generali India Insurance Co Ltd. vs Pawan Kumar Gupta on 29 May, 2024
FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA
D.O.D. : 29.05.2024
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Date of Institution : 04.09.2019
Date of Reserving the order : 23.04.2024
Date of Decision : 29.05.2024
FIRST APPEAL NO.-475/2019
IN THE MATTER OF
Future Generali India Insurance Co. Ltd.
3rd Floor, Kailash Building, K.G. Marg,
New Delhi-110001
.....Appellant
(Through: Mr Ashwary Kathed, Advocate)
VERSUS
Pawan Kumar Gupta,
S/o Sh. Chajju Ram Gupta,
R/o- D-813, 3rd Floor, Saraswati Vihar,
Pitampura, New Delhi-110034
.....Respondent
(Through: Mr Mukesh Gahlot, Advocate )
CORAM:
HON‟BLE MS. BIMLA KUMARI, MEMBER (FEMALE)
HON‟BLE MS. PINKI, MEMBER (JUDICIAL)
1. Whether reporters of local newspapers be allowed to see the judgment? Yes
2. To be referred to the reporters or not? Yes
Present: Mr Aishwary Kathed counsel for the appellant
Mr Mukesh Gahlot counsel for the respondent
Dismissed PAGE 1 OF 17
FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA
D.O.D. : 29.05.2024
HON‟BLE MS.BIMLA KUMARI, MEMBER (FEMALE)
ORDER
1. By this judgment we shall dispose of the appeal which has been filed by the appellant against the impugned order dated 03.05.2019 passed by the Consumer Dispute Redressal Forum (North-West) Shalimar Bagh in complaint case no. 1171/2015.
2. Brief facts as stated in the complaint are that the complainant/respondent herein purchased a vehicle i.e. I-20 Hyundai car and the vehicle was insured with the appellant vide policy no. 2014- V3394441-FPV for the period from 08.11.2014 to 07.11.2015 for IDV value of Rs 5,64,205/-. On 12.01.2015, the complainant lost the key of the said vehicle. He informed the police on the same day and an online FIR was registered by the police on the same date. The complainant also informed the appellant vide letter dated 13.01.2015 about the lost of the key. He also went to the Authorised Service Centre of the appellant for replacement the car key and the lock in the morning of 13.01.2015. The appellant deputed the surveyor on 14.01.2015, who surveyed the car at the authorised service centre of the appellant, namely, Deep Hyundai Mundka. Since, the car lock was not available in the company at that time and the company was not sure about the availability of the car lock in terms of the days and time period, it was mutually agreed between the Deep Hyundai Mundka and the complainant that the complainant would not keep the car at the service station. Therefore, the complainant took the car with him. Thereafter, Deep Hyundai Mundka placed the order for lock to HMIL vide order number NI403A5AUS but the lock was not acquired by the authorized center till the date, the car of the complainant was stolen. Thereafter, the complainant used the car with the other key of Dismissed PAGE 2 OF 17 FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA D.O.D. : 29.05.2024 the vehicle, as he was having very limited source of convenience and used to drive the car under avoidable circumstances and keep all the proper safeguards to protect the vehicle. Unfortunately, the car which was parked outside the factory of the complainant was found missing on 02.02.2015 and FIR no.51/2015 U/s 379 IPC was registered at PS Mundka. The complainant also lodged the claim with the appellant. The appellant asked the complainant to submit certain documents. The complainant completed all the formalities in respect of stolen vehicle and also informed the Regional Transport Authorities, Janakpuri vide letter dated 05.02.2015. However, the police submitted the untrace report in the court of Sh. Sushant Changotra, Learned M.M. Tis Hazari on 09.04.2015. The complainant had taken a loan of Rs 5,05,493/- from HDFC Bank for the purchase of the vehicle and was paying the loan with interest. When no action was taken by the appellant, the complainant sent legal notice dated 23.07.2015 calling upon the appellant to pay the insured amount but the claim was not settled by the appellant. The complainant filed the complaint before the District Forum.
3. The respondent/appellant filed the written statement before the District Forum.
4. The complainant also filed replication to the written statement of the opposite party.
5. The complainant as well as the opposite party filed their respective evidence before the District Forum.
6. After hearing learned counsel for the parties, the Learned District Forum passed the following order:-
Dismissed PAGE 3 OF 17 FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA D.O.D. : 29.05.2024 "This forum has considered the case of the complainant in the light of evidence of both the parties and documents placed on record by the complainant. The testimony of the complainant has remained consistent and there is nothing on record to disbelieve the case of the complainant. In his affidavit, the complainant has clearly stated that after locking the car/vehicle he went inside the factory and the gates of the same were closed. The complainant further stated that after the loss of one key he had immediately reported the loss of key to the Police as well as OP and had also taken the car to the service station of the company on 14.01.2015 for change of locks and as the locks were not available with the authorized service centre and no time frame was given as to on which date locks will be available, the complainant came back alongwith the vehicle. So, it cannot be said that the complainant was negligent in keeping the vehicle in safe custody. Thus, it cannot be said that the complainant has violated the terms & conditions of the policy and accordingly OP has failed to prove its defence. Thus, it appears that OP has unlawfully repudiated the claim of the complainant. Accordingly, we hold OP guilty of deficiency in service.
9. Accordingly, OP is directed as under:
1) To pay to the complainant the IDV of the vehicle i.e. Rs.5,64,205/-.
Dismissed PAGE 4 OF 17 FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA D.O.D. : 29.05.2024
ii) To pay to the complainant an amount of Rs.50,000/-
as compensation towards mental agony and harassment caused to the complainant.
iii)To pay to the complainant an amount of Rs.10,000/-
as cost of litigation.
10. The above amount shall be paid by the OP to the complainant within 30 days from the date of receiving copy of this order failing which OP shall be liable to pay interest on the entire awarded amount @ 10% per annum from the date of receiving copy of this order till the date of payment. If OP fails to comply with the order within 30 days from the date of receiving copy of this order, the complainant may approach this Forum u/s 25 of the Consumer Protection Act, 1986.
11. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005. Thereafter file be consigned to record room."
7. It is the case of the appellant that the impugned order passed by the Learned District Forum is liable to be set aside as the same is based on conjunctures and surmises. The impugned order dated 03.05.2019 is bad both in law as well as on facts. The Learned District Forum failed to appreciate the fact that the respondent/complainant failed to properly safeguard the insured vehicle and left the vehicle unattended and violated the terms and conditions of the policy. The respondent did not take reasonable care to safeguard the Dismissed PAGE 5 OF 17 FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA D.O.D. : 29.05.2024 insured vehicle. The Learned District Forum has ignored the settled law that the terms and condition of the insurance company has to be interpreted strictly and no liberal interpretation is allowed by the courts. The appellant has prayed that the impugned order dated 03.05.2019 passed by the District Forum be set aside.
8. The respondent has filed reply to the appeal wherein he has prayed for dismissal of the appeal as the appeal has been filed by the appellant only to harass the respondent. The documents filed by the appellant along with the appeal were not placed by the appellant before the District Forum and the appellant never whispered about those documents in its pleading before District Forum. The grounds raised by the appellant are false and frivolous and without any basis. The District Forum has rightly passed the impugned order dated 03.05.2019 on the basis of correct facts and evidence.
9. The appellant as well as the respondent have filed written statement.
First of all, we would like to deal with the application moved by the appellant for condonation of delay in filing the appeal.
10. It is mentioned in the application by the appellant that there is delay of 68 days in filing the appeal. The appellant has to follow the internal procedure to take decision before filing the appeal. The copy of the impugned order dated 03.05.2019 was prepared by the Learned District Forum on 29.05.2019. The documents of the case file of the case were traced by the appellant on 05.06.2019. Thereafter, the appellant sought the opinion of the advocate. However, the advocate was not available due to summer vacations and the opinion was provided Dismissed PAGE 6 OF 17 FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA D.O.D. : 29.05.2024 by the advocate on 28.06.2019. Thereafter, the appellant sent the relevant documents to its Head Office in Mumbai on 01.07.2019, which were received by the Mumbai team on or about 03.07.2019. The Mumbai team also took some time to peruse the documents and also sought clarifications from the Delhi team on 08.07.2019. The appellant also sought some clarifications from its dealing advocate, who provided the clarifications to the to the Delhi team on 24.07.2019. The Mumbai team of the appellant approved to prefer the appeal. The appellant sent the case papers to its advocate to file the appeal. The papers were received by the advocate on 26.07.2019. The advocate sought some more documents and clarifications. The documents were supplied to the Appellant‟s advocate on 21.08.2019. Thereafter, the advocate of the appellant did the research work on the legal issues and drafted the appeal and sent the same for approval on 04.09.2019 and the appeal was signed by the appellant.
11. The respondent has filed reply to the application wherein it is submitted that the appeal filed by the appellant is beyond the period of limitation. The appellant has failed to disclose any "insufficient cause" to condone the delay. The appeal is liable to be dismissed.
Now question that arises for consideration is whether the appellant has shown the "sufficient cause" for not preferring the appeal in time, To adjudicate this issue, we deem it appropriate to refer to Section 15 of the Consumer Protection Act, 1986 which provides as under:-
"Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the Dismissed PAGE 7 OF 17 FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA D.O.D. : 29.05.2024 State Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed.
Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:
[Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent. of the amount or rupees thirty-five thousand, whichever is less]"
12. A bare perusal of the aforesaid statutory position reflects that the appeal against an order should have been preferred within a period of thirty days from the date of impugned judgment. On perusal of record before us, it is clear that the impugned judgment was pronounced on 03.05.2019 and the present appeal was filed on 04.09.2019. In order to condone the delay, the Appellant has to satisfy this Commission that there was "sufficient cause" for preferring the appeal after the stipulated period. The term „sufficient cause‟ has been explained by the Apex Court in Basawaraj and Ors. vs. The Spl. Land Acquisition Officer reported in AIR 2014 SC 746. The relevant paras of the aforesaid judgment are reproduced as under:-
"9. Sufficient cause is the cause for which Defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient Dismissed PAGE 8 OF 17 FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA D.O.D. : 29.05.2024 cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose."
13. We also deem it appropriate to refer to Anil Kumar Sharma vs. United Indian Insurance Co. Ltd. and Ors. Reported in IV(2015)CPJ453(NC), wherein the Hon‟ble NCDRC held as under: -
"12. .........we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon'ble Supreme Court in a recent judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that 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 the appeals and revisions, which are highly belated are entertained."
14. We further deem it appropriate to refer to Lingeswaran Etc. Versus Thirunagalingam in Special Leave to Appeal (C) Nos.2054-2055/2022decided on 25.02.2022, wherein the Hon‟ble Supreme Court held as under: -
Dismissed PAGE 9 OF 17 FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA D.O.D. : 29.05.2024 "5. We are in complete agreement with the view taken by the High Court. Once it was found even by the learned trial Court that delay has not been properly explained and even there are no merits in the application for condonation of delay, thereafter, the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the learned trial Court that, even after finding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to condone the delay would be giving a premium to a person who fails to explain the delay and who is guilty of delay and laches. At this stage, the decision of this Court in the case of PopatBahiruGoverdhane v. Land Acquisition Officer, reported in (2013) 10 SCC 765 is required to be referred to. In the said decision, it is observed and held that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.
15. We further deem it appropriate to refer to Anshul Aggarwal Versus New Okhla Insdustrial Development Authority in CPJ 63 (SC) decided on 09.08.2011, wherein the Hon‟ble Supreme Court 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 Dismissed PAGE 10 OF 17 FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA D.O.D. : 29.05.2024 belated petitions filed against the orders of the consumer foras."
From the aforesaid dicta of the Hon‟ble Apex Court and the Hon‟ble National Commission, it is clear that „sufficient cause‟ means that the party should not have acted in a negligent manner or there was a want of bona fide on its part and the applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay.
16. Reverting to the material available before us, we find that the impugned order was passed on 03.05.2019 and the period of limitation starts from the date of order which had expired on 03.06.2019. However, the reasons stated for the delay is that Learned District Forum has prepared the impugned order on 29.05.2019. But perusal of the impugned order shows that the order was ready and was dispatched to parties by District Forum on 20.05.2019 vide dispatch No. 317-318. However, even if we presume that the order was received by the appellant on 29.05.2019 as the same was prepared by the District Forum as per the case of the appellant, the period of 30 days starts from 29.05.2019 which expires on 29.06.2019 but the appeal has been filed by the appellant on 04.09.2019 i.e. after a delay of 66 days. The appellant has further stated that delay has occurred as the appellant has to follow the internal procedure to take the decision to file the appeal. However, no material has been placed on record by the appellant to substantiate the contentions that document of case file were received by the appellant on 05.06.2019 and thereafter, the appellant sought the opinion of the advocate, who was not available due to summer vacation Dismissed PAGE 11 OF 17 FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA D.O.D. : 29.05.2024 and the opinion was provided by the advocate only on 28.06.2019 or that the appellant sent the relevant document to its Head Office in Mumbai on 01.07.2019 and the documents were received by the Mumbai team on 03.07.2019 and the Mumbai team also took further time to peruse the documents and sought clarification from the Delhi team or that the appellant sought some clarifications from its dealing advocate in Mumbai who provided the clarifications to the to the Delhi team of the appellant on 24.07.2019 or that the Mumbai team of the appellant approved to prefer an appeal and the appellant sent the case papers to its advocate to file the appeal and the papers were received by the advocate on 26.07.2019 or that thereafter, the advocate sought some more documents and clarification on the documents, which were supplied to the appellant‟s advocate on 21.08.2019 and thereafter the advocate of the appellant did the research work on the legal issues and thereafter drafted and sent the appeal for approval on 04.09.2019 and the appeal was signed by the appellant.
17. However, the appellant did not prefer to mention the name of counsel who was not available during summer vacation or the names of the officials of Mumbai and Delhi team or the name of advocate of Mumbai, who advised the appellant to prefer the appeal and what documents were sought for clarification.
To deal with this issue we would like to refer the judgment of Hon‟ble Supreme Court in office of the Chief Post Master and Ors vs. Living Media India Limited and Ors Civil Appeal No. 2474-2475 of 2012 decided on 24.02.2012 AIR 2012 SC 1506, wherein, it was inter alia held as under:
Dismissed PAGE 12 OF 17 FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA D.O.D. : 29.05.2024 "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.
Dismissed PAGE 13 OF 17 FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA D.O.D. : 29.05.2024 In our view, it is the right time to inform all the government bodies, their agencies, 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."
18. In these facts and circumstances, We are of the considered view that the appellant has not acted diligently and there was want of bona fide on its part. We are of the considered view that the appellant has failed to show that it was prevented by any the "sufficient cause" from prosecuting the appeal in time. Accordingly, the application is dismissed and stands disposed of.
The next question for consideration is whether there is any material irregularity or illegality in the order dated 03.05.2019 passed by the District Forum.
19. The main grievance of the appellant in the appeal are that the respondent did not exercise Dismissed PAGE 14 OF 17 FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA D.O.D. : 29.05.2024 reasonable care to protect and safeguard the vehicle and left the vehicle unattended outside the factory premises in an open space fully knowing that one key of the vehicle has been lost. The respondent has violated the terms and conditions of the insurance policy and the learned District Forum did not appreciate these facts and allowed the complaint filed by the complainant.
20. In the present case, it is an admitted fact of the parties that one key of the vehicle was lost on 12.01.2015 and the respondent informed the police on the same day and the FIR No.51/2015 U/s 379 IPC was registered. The respondent/complainant had also informed the opposite party on 13.01.2015 about the loss of the key by him. Further, the respondent also took the car to the authorized service center of appellant on 14.01.2015 for change of lock and key. Since, the locks were not readily available with the authorized service station and no time frame was given by the authorized service station about the availability of the lock, the complainant came back with the vehicle. In these circumstances, the duty was cast upon the appellant to make the necessary arrangement for the change the lock of the vehicle but no steps were taken by the appellant to change the lock of the car. Since, the complainant was not having other mode of convenience and he had purchased the car for his personal use after taking loan from HDFC Bank, he was compelled to drive car with other key. In these circumstances, we are of the considered view that the respondent took all the reasonable care to protect and safeguard the vehicle. We are of the considered view that it was the appellant which did not provide any help to the respondent and did not take any steps to safeguard the insured vehicle when it had issued the policy to the respondent. We are of the considered view that there is a deficiency in Dismissed PAGE 15 OF 17 FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA D.O.D. : 29.05.2024 service on the part of the appellant and Learned District Forum has rightly held that the appellant had unlawfully repudiated the claim of the complainant.
Further, we would like to refer to the judgment of Hon‟ble Supreme Court in Oriental Insurance Co. Ltd. vs M/S Ozma Shipping Company & Anr Civil appeal no.6289 of 2001 decided on 25.08.2009, wherein it was inter-alia held as under:
"The insurance companies in genuine and bona fide claims of the insurers, should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on their credibility and trustworthiness of the insurance companies. Incidentally by adopting honest approach and attitude, the insurance companies would be able to save enormous litigation costs and the interest liability."
21. Thus, we are of the considered view that there is no material irregularity or illegality in the order passed by the District Forum which requires interference by this commission.
22. We find no merits in the appeal. Hence, the appeal filed by the appellant is hereby dismissed.
23. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
24. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986.
Dismissed PAGE 16 OF 17 FA-475/2019 FUTURE GENERALI INDIA INS. CO.LTD VS PAWAN KUMAR GUPTA D.O.D. : 29.05.2024
25. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
26. Appeal file be consigned to record room along with a copy of this Judgment.
(PINKI) Member (Judicial) (BIMLA KUMARI) Member (Female) PRONOUNCED ON 29.05.2024 Dismissed PAGE 17 OF 17