Jammu & Kashmir High Court
Kewal Krishan Kohli vs Bajaj Allianz Gen. Ins. Co. Ltd. And Ors. on 29 May, 2018
Equivalent citations: AIRONLINE 2018 J AND K 248, AIRONLINE 2018 J AND K 238
Bench: Dhiraj Singh Thakur, Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
OWP No. 590/2010, MP No. 808/2010
Date of order:- 29.05.2018
Kewal Krishan Kohli Vs. Bajaj Allianz Gen. Ins. Co. Ltd. and ors.
Coram:
Hon'ble Mr. Justice Dhiraj Singh Thakur, Judge
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Appellant/Petitioner(s) : Mr. O.P. Thakur, Advocate.
For respondent (s) : Mr. Jugal Kishore Gupta, Advocate.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
Per: Sanjay Kumar Gupta-J
1. In the instant petition, it has been stated that the petitioner is running the business of General Provisional Store at main Bazar Banihal; that vide Insurance Policy dated 18.11.2003, petitioner's business stocks were insured with the respondent; that on the intervening night of 11th /12th June, 2004 the shop of the petitioner along with other adjoining shops caught fire due to some electric shot circuit, as a result of which the stocks of the petitioner were completely burnt; that the respondents did not pay the insurance amount. Upon which ,the petitioner filed a complaint before the Divisional Consumer Forum, Jammu, where the petitioner led evidence but his counsel did not appear and the same was dismissed by the Divisional Consumer Forum Jammu vide order dated 30.11.2007. On coming to know about the dismissal of his complaint, the petitioner filed an appeal along with an application for condonation of delay, before the J&K State Consumer Disputes Redressal Commission Jammu. The petitioner has given cogent reasons for condonation of delay. However, the J&K State Consumer Disputes Redressal Commission Jammu, vide order dated 24.02.2010 has dismissed the application for condonation of delay and also OWP No.590/2010 & MP No.808/2010 Page 1 of 5 2 held the appeal as merit less. The grounds projected by the petitioner for condonation of delay have not been considered by the J&K State Consumer Disputes Redressal Commission, Jammu.
2. Feeling aggrieved of the order dated 24th February, 2010, passed by the J&K State Consumer Disputes Redressal Commission, Jammu, the petitioner challenges the same, inter alia, on the following grounds:-
i. The petitioner has given the cogent reasons for condonation of delay. The State Commission while dismissing the application for condonation of delay has not considered the facts, which have been pleaded by the petitioner in the application for condonation of delay.
ii. The petitioner has clearly pleaded that he was doing the business and also residing at Banihal. In this connection, he has led evidence by way of evidence. He has also submitted supplementary affidavit in support of his claim before Divisional Consumer Forum, Jammu. The petitioner pleaded that after the colossal loss in the fire incident, he had started business afresh and it had become very difficult for him to maintain him and his family members and that he was under this impression that his counsel was conducting the case properly.
iii. It is a settled principle of law that a party cannot be punished for default committed by his counsel. In the present case, there is a default on the part of the counsel and admittedly, the petitioner has done everything, which was required to be done on his part. In these circumstances, the application for condonation of delay ought to have been allowed and the appeal ought to have been decided on merit.
iv. It is also well settled principle of law that while considering the application for condonation of delay, liberal view should be taken. The shop of the petitioner was admittedly insured and the same was gutted in fire and the goods insured were destroyed, however, the amount of full compensation was not paid. In these circumstances, the appeal to have been decided on merit after condonation of delay.
v. Though the application for condonation of delay has been dismissed, yet the State Commission has also held in one sentence that the appeal was meritless. The aforesaid course is not sustainable and the order impugned is, therefore, liable to be quashed.
3. Objections stand filed on behalf of respondent No.1 stating therein that the writ petition in the present form is not maintainable as no fundamental, legal or constitutional right of the petitioner has been violated. It is stated OWP No.590/2010 & MP No.808/2010 Page 2 of 5 3 that the petition is bad for non-joinder of necessary parties. The Divisional Forum Jammu which has dismissed the original complaint filed by the petitioner under Consumer Protection Act is a necessary party for the decision of the present petition. It is further submitted that the present petition against the concurrent finding of the two Forums constituted under the J&K Consumer Protection Act on facts, is not maintainable and the same deserves to be dismissed .
4. Heard learned counsel for both the sides.
5. We have perused the order impugned dated 24.02.2010, which reads as under:
"Order dated 30.11.2007 passed by the learned Divisional Forum Jammu (hereinafter to be referred to as the Forum) has been challenged in appeal which is time barred by 110 days. The application has been given for condonation of delay. The main reason for not filing the appeal in time is that the concerned counsel had not informed the applicant/appellant in time. The application has been opposed by the non-applicants/respondents 1 and 2.
Heard the arguments.
The record reveals that on the day when the impugned order was passed, no-body was present for the complainant. Even the complainant had remained absent for previous three consecutive dates of hearings. Now, how it can lie in the mouth of the applicant/appellant to pass-on the buck on the advocate who was not present when the impugned order was passed. Both the complainant and his advocate had been remaining absent.
We have also perused the impugned order and the appeal appears merit less. In this view of the matter, no "sufficient cause" is found for condoning the delay. Hence the application is dismissed and is consigned to records. The record of the Forum be returned at once."
6. Bare perusal of impugned order, it is evident that Commission below has with common order dismissed the application for condoning the delay as OWP No.590/2010 & MP No.808/2010 Page 3 of 5 4 well as appeal on merits. From the perusal of record, it is evident that petitioner is resident of Banihal, Ramban which is far long from Jammu; he had already engaged Advocate. As per application for condonation of delay, it has been stated that his Advocate asked him not to come as matter has been fixed for arguments before Divisional forum, so he did not come in Forum. However, he contacted his Advocate on telephone; he came to Jammu on 18.4.2008 and contacted his counsel and tried to verify the date; but could not find and on next date he went to court and find that his case has been dismissed on 30.11.2007.
7. In terms of section 13 of Act, the appeal has to be filed before State Commission within thirty days from the date of order; however in terms of proviso of this section the delay in filing appeal can be condoned by Commission, if sufficient cause is shown. The power to condone the delay in approaching the Commission has been conferred to do substantial justice to parties by disposing the cases on merit. Ordinarily a litigant does not stand to benefit by lodging an appeal late. Some times refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. A litigant does not stand to benefit by resorting to delay. The expression 'sufficient cause' should, therefore, be considered with pragmatism in justice-oriented process approach rather than the technical detention of sufficient cause for explaining every day's delay.
8. In the case in hand, it is clear that petitioner is resident of Banihal, Ramban which is far long from Jammu. It has also been pleaded that his Advocate asked him not to come as matter has been fixed for arguments before OWP No.590/2010 & MP No.808/2010 Page 4 of 5 5 Divisional Forum, so he did not come in Forum. However, he contacted his advocate on telephone. He came to Jammu on 18.4.2008 and contacted his counsel and tried to verify the date, but could not find and on next date he went to court and find that his case has been dismissed on 30.11.2007. In this way, there is ample proof that petitioner was all along diligent, which a prudent man can do to prosecute his case.
9. Secondly, there is specific case of petitioner that he had already completed his evidence and thereafter respondents also completed the evidence. Both Courts below have not mentioned any reason to disbelieve the evidence of petitioner. In impugned order State Consumer Disputes Redressal Commission Jammu, has only stated that "we have perused the impugned order and the appeal appears meritless" This is cryptic order, which is not sustainable in eyes of law.
10. In view of what has been discussed above, this petition is allowed. The order of State Consumer Disputes Redressal Commission Jammu, thereby dismissing the appeal, is set aside. Further, without commenting on merits of main appeal, delay in filing the appeal is condoned. Main appeal is remanded back to State Consumer Disputes Redressal Commission Jammu for deciding it on merits.
(Sanjay Kumar Gupta) (Dhiraj Singh Thakur)
Judge Judge
Jammu
29.05.2018
Narinder
OWP No.590/2010 & MP No.808/2010 Page 5 of 5