National Consumer Disputes Redressal
Smt. Smita Madhav Patki vs 1. National Insurance Company Ltd. & ... on 6 December, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2733 OF 2011 WITH (I.A. NO. 1, 2 & 3 OF 2012, for Stay, Exemption from filing official translation and C/Delay) (From the order dated 10.08.2010 in Appeal No. 810/2009 of the State Commission, Maharashtra) Smt. Smita Madhav Patki Aged 49 years, Occupation : Temporary Service R/o Shriram Bunglow, Near Shreyas Hospital Pandharpur Railway Station Pandharpur, District : Solapur Maharashtra . Petitioner Versus 1. National Insurance Company Ltd. 586, Sadashiv Peth Laxmi Road, Pune, Pune, Maharashtra 2. Sr. Divisional Manager National Insurance Company Ltd. 586, Sadashiv Peth Laxmi Road, Pune, Pune, Maharashtra 3. Executive Engineer Akluj Division Maharashtra State Electricity Board (Maharashtra State Electricity Distribution Co.) Vidyut Bhawan, Akluj District : Solapur, Maharashtra 4. Secretary (Now Managing Director) Maharashtra State Electricity Board (Maharashtra State Electricity Distribution Co.) Prakashgad, Bandra (E), Mumbai, Maharashtra . Respondents BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER For the Petitioner(s) : Mr. Ranjan Kumar, Advocate with Ms. Rohini Kumar, Advocate Pronounced on : 6th December, 2012 ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER Petitioner/complainant aggrieved by order dated 10.8.2010, passed by Maharashtra State Consumer Disputes Redressal Forum, Mumbai (short, State Commission) has filed the present revision petition. Along with it, an application seeking condonation of delay of 165 days has also been filed.
2. Brief facts are that Late Madhav husband of petitioner was a Junior Engineer with erstwhile Maharashtra State Electricity Board. He was beneficiary of Group Insurance Janata Personal Accident policy issued by respondent/opposite party, which was taken in the name of Maharashtra State Electricity Board Stall Welfare Fund. When the said policy was in force, he met with an accident on 9.11.1999 and died. Through the employer, insurance claim was made under the above referred policy.
However, said employer did not forward the claim application to the Insurance company. Therefore, petitioner herself lodged the claim, which stood repudiated in the month of October, 2007. Thereafter, consumer complaint was filed.
3. Respondent no.1/op-1 repudiated the claim stating that it was a stale action. Since, the claim was not preferred within the stipulated time, as per the policy terms and conditions, the same stood abandoned and not recoverable.
4. District Forum, vide its order dated 6.5.2009, dismissed the complaint of the petitioner.
5. Aggrieved by the order of District Forum, petitioner filed appeal before the State Commission, which dismissed the same.
6. Hence, this revision petition.
7. I have heard the learned counsel for the petitioner and have gone through the records.
8. As per application for condonation of delay, certified copy of the impugned order was received by the petitioner on 4.12.2010. However, present revision has been filed on 16.8.2011. Grounds on which condonation of delay has been sought are reproduced as under ;
4. That the petitioner could not instantly understand the impact of the impugned judgment and also she being a layman and not knowing anybody in Delhi she contacted her brother in Mumbai to know the next steps to be adopted in the present case. The petitioners brother then contacted the present counsel and sent the documents for preferring the revision petition before this Commission.
The counsel received the documents and then found that most of the documents were in Marathi and therefore, he immediately asked petitioners brother Shri T.P. Katekar to send him the translated copy of the documents in English. The counsel also asked him to send the entire documents as many of the documents were also missing from the bunch of documents sent by him to the present counsel.
5. The petitioners brother Shri T.P.Katekar then asked the petitioner to contact the local counsel in Solopur for sending the entire documents and simultaneously he also given the Marathi documents for the translation. The entire documents and the translation took about two months to get arranged and translated in English. The petitioner then sent the documents to her brother Shri Katekar in Mumbai and he in turn sent the same to the counsel in Delhi. The affidavits and the Vakalatnama duly signed and notarized are sent to the counsel in Delhi but when the counsel seen the affidavits he found that the same did not contain the date and therefore the counsel in Delhi asked petitioners brother to again ask the petitioner to send the affidavits properly singed and notarized.
6. The petitioner then sent the affidavits and vakalatnama duly and properly executed and notarized to the counsel in Delhi in the last week of July, 2011. That the counsel for the petitioner then drafted the petition and the same was sent to the petitioner and her brother for their approval. That the petitioner with the help of her local counsel and her brother verified the facts and figure of the petition and then they instructed the present counsel to file the same.
7. That the counsel for the petitioner thereafter drafted the final copy of the petition. That the petition, affidavit, Vakalatnama and other documents were made ready by the office of the Advocate and were filed in this Honble Court on 16.8.2011.
8. That in the above facts and circumstances there happened/occurred a delay of 165 days in filing the present petition and the same was not due to any willful omission or negligence on the part of the petitioner but it was occasioned because of the reasons explained herein above. That the delay caused, is bonafide and there is sufficient cause for the condonation of delay in filing the present petition. The delay caused, is neither intentional nor deliberate and it would be expedient in the interest of justice that this Honble Court condones the delay of 165 days in filing the present appeal.
9. Petitioner has not placed on record the affidavit of her brother Shri T.P. Katekar who had been dealing on behalf of the petitioner nor the name of local counsel has been mentioned. There is also no sufficient and plausible explanation when petitioner had received the copy of the order on 4.12.2010, then why revision petition was filed after about nine months.
10. After going through the application for condonation of delay, it is apparent that petitioner has made absolutely vague averments. The reasons mentioned in the application, can by no stretch of imagination be said to be the sufficient cause.
11. It is well settled that sufficient cause for non-appearance in each case, is a question of fact.
12. Delhi High Court in New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, has held;
No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafide are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen.
13. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
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.
14. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Apex Court has observed ;
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.
15Recently, Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) laid down 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.
16. Now coming to the merits, it is contended by learned counsel for the petitioner that complaint filed by the petitioner was well within time, as the repudiation letter was received by the petitioner in the month of Jan., 2007, whereas, complaint had been filed in December, 2008.
17. State Commission in its order has observed ;
5. Cause of action for the insurance claim in question but arose on the death of late Madhav Patki and not on the date of repudiation of the insurance claim as alleged by the complainant. A useful reference can be made to the decision of the Apex Court in the matter of Kandimalla Raghavaiah & Co. V/s National Insurance Co. Ltd. and other 2009 CTJ 951 (SC) (CP).
Insurance claim, thus, is preferred beyond the period of two years from the date of cause of action, supra and as such barred by limitation. There is no application for condonation of delay, admittedly, made.
6. Janata Personal Group Accident policy is on record.
Amongst other terms it also submitted as under :-
It is also hereby further expressly agreed and declared that if the Company shall disclaim liability to the insured for any claim here under and such claim shall not within 12 calendar months from the date of such have been made the subject of a suit in a Court of Law then the claim shall for all purpose be deemed been abandoned and shall not thereafter be recoverable hereunder.
7. As held by the Apex Court in the matter of Himachal Pradesh State Forest Co. Ltd. V/s United India Insurance Co. Ltd. (2009) 2 SCC 252, though above referred clause in view of Section 28 of the Contract Act will not be acted upon for the curtailment of the period of limitation still the later part of it which refers to extension of the right itself unless exercised within specified time can be enforced. Therefore, since the claim was not made within 12 calendar months from the date of happening, the claim shall for all purposes be deemed to have been abandoned and is not recoverable after the expiry of the said period.
8. For the above said reasons, we find that no fault can be found with the impugned order resulting into dismissal of consumer complaint. Holding accordingly, we pass the following order.
18. Under Section 21 of the Consumer Protection Act, 1986, (for short, Act) this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. There is no illegality or material irregularity on the part of the State Commission in this case.
19. It is well settled that under Section 21 (b) of the Consumer Protection Act, 1986, scope of revisional jurisdiction is very limited.
20. Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.
21. Thus, no jurisdictional or legal error has been shown to call for interference in the exercise of powers under Section 21 (b) of the Act.
Since, two Fora below have given detailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction.
22. Accordingly, present revision petition being hopelessly barred by limitation and also having no merit, is hereby dismissed.
J (V.B. GUPTA) PRESIDING MEMBER Sonia/