National Consumer Disputes Redressal
Pratibha Bevinal vs Metlife India Insurance Co. Ltd. on 15 November, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI MISCELLANEOUS APPLICATION NO. 597 OF 2016 IN CC/88/2011 1. PRATIBHA BEVINAL ...........Appellants(s) Versus 1. METLIFE INDIA INSURANCE CO. LTD. ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Appellant : Mr. Basavaprabu S. Patil, Advocate with
Mr. Sailesh Madiya, Mr. Sudhanshu Prakash
And Ms. Rachitka H. Advocate For the Respondent : Mr. Ritesh Khare , Advocate
Dated : 15 Nov 2018 ORDER
This complaint case was dismissed in default on 04.07.2011. MA No.597 of 2016 has been filed for restoration of the Consumer complaint No.88 of 2011 on 19.08.2016.
2. Heard learned counsel for both the parties on this application and perused the record. Learned counsel for the complainant stated that the complaint was filed against the repudiation of the insurance claim of the complainant. Stating the brief facts, the learned counsel said that the complainant is the wife of deceased Amaresh Bevinal. Deceased Amaresh bevinal had obtained from opposite party on 05.06.2008 Life Insurance Policy No.1200800579746 under Plan- Metsmart Premium (a whole life unit linked insurance policy) for 59 years with effect from 04.06.2008, sum assured being Rs.1,50,00,000/- Premium amount was Rs.1,25,000/- payable quarterly. In terms of the Insurance Policy complainant herein being the wife of deceased Amaresh Bevinal was nominated as the sole beneficiary. On 20.01.2010, the life assured while crossing the Road (Raichur Road) Gangavati was hit by Motorcycle bearing No.KA-37/R-621 coming from Raichur Circle in a rash and negligent manner. Consequently he sustained grievous injuries. He was shifted to Dr. Chandrappa's private hospital at Gangavati and later to Lifeline 24 x 7 Hospital at Hubli, where he died on 24.01.2010. FIR was registered by Gangavati Traffic Police Station circle in Crime No.2/2010 in connection with the accident causing death of the deceased. On 26.02.2010 opposite party was notified of the death of Amaresh Bevinal in the stipulated format. Complainant being the beneficiary of the Life Insurance Policy of deceased submitted claim to opposite party in prescribed Form. Complainant also furnished to opposite party all requisite documents like family doctor's Certificate, last attending Physician's statement, Hospital Certificate, Identity Proof etc., as required by opposite party for processing the claim. On 10.05.2010 opposite party issued a communication to the complainant declining to admit liability for claim against the Life Insurance Policy on the ground of alleged nondisclosure of material facts by treating the said policy as void ab initio. Opposite Party also issued a Demand Draft for Rs.8,89,168/- bearing No.500612 dated 07.05.2010 drawn on Axis Bank Ltd., towards refund of value paid under the policy. In the said communication dated 10.5.2010 it was stated that while assessing the claim opposite party observed that the deceased was a known case of "Rheumatic Heart disease with Mitral Stenosis" since 2002 and Diabetes Mellitus since 2007 which was prior to taking of the Insurance Policy and that said material fact was not disclosed in the application for policy dated 28.3.2008. In this background, the complaint was filed.
3. It was further argued by the learned counsel that the complaint was dismissed in default on 04.07.2011 as the counsel for the complainant could not appear on that date. The counsel did not inform the complainant and the complainant was under the impression that the case was being conducted by the counsel for the complainant. Recently the complainant came to know that the learned counsel has expired and therefore, she contacted the office of the learned counsel and searched for the file. It came to her notice that the matter was already dismissed in default on 04.07.2011 and the certified copy of the same was also available on her file, which was issued on 08.07.2011. This clearly shows that the learned counsel had intention to file restoration application, but due to some circumstances the same could not be filed in time. When the complainant came to know of this order, the complainant filed present restoration application. Obviously, there is a huge delay, however, the delay has been explained in the application for condonation of delay as under:-
"2. It is submitted that the matter was being handled by Mr. B.Subrahmanya Prasad, Advocate, before this Hon'ble Commission. It however appears that by order dated 4th of July, 2011, this Hon'ble Commission was pleased to dismiss the complaint in default and for non-prosecution since no one had appeared on behalf of the complainant. The complainant had not been informed that the complaint had been dismissed in default in terms of the order dated 04.07.2011. She was under the impression that the complaint was pending. Recently, she came to know of the fact that Mr. B.Subrahmanya Prasad, whom she had engaged to represent her had expired some time during the month of February, 2016. On coming to know of the same, the complainant who was under the impression that the complaint was pending made efforts to get the file so as to make alternate arrangements to engage another advocate. On so receiving the file, she was extremely surprised to find that the matter had been dismissed on 04/07/2011 and was not pending. In the file she also found the certified copy of the said order which had had been obtained on 08/07/2011 but which for some reason, probably by the oversight of advocate, had not been intimated to her nor had steps being taken for the restoration of the matter. She also checked for the same on the website of this Hon'ble Commission where her fears were confirmed.
3. It is submitted that it was only around the beginning of May 2016, that the complainant received the file from the office of Mr. B.Subrahmanya Prasad. Initially she was in a confused state of mind because it was not clear to her as to how the case could have been dismissed for non-prosecution when all along she had been under the impression that the case was still pending and was awaiting it to be listed. Thereafter she had to make efforts to identify an advocate at Delhi and then sent him all the papers. However due to the court vacations in the Hon'ble Supreme Court of India and the Hon'ble High Court of Delhi, the advocate so identified was out of Delhi and was not in a position to prepare the requisite applications, which were finally prepared and sent to the complainant by the end of July, 2016. That in the entire process, there is a delay of 1475 days in filing the application for restoration of the complaint. It is however submitted that the delay is not account of any fault of the complainant."
4. Learned counsel for the complainant argued that clearly there is no default on the part of the complainant in filing the restoration application with delay as she only came to know about this order recently. The complainant has good case on merit and if her complaint is dismissed only on the technical ground of delay, justice will be denied to her. Accordingly, it was prayed that restoration application MA 597/2016 may be allowed.
5. Learned counsel for the complainant contended that it is not possible for the client to be always in touch with his counsel. Once a case is entrusted to the counsel the client reposes full trust on the Advocate and client expects that Advocate is taking good care of the case. The learned counsel referred to a similar case in Rameshchandra Chimanlal Shukla Vs. Authorized Agent or Administrator, 2012 SCC OnLine Guj 894, wherein the Hon'ble High Court of Gujarat has held the following:-
"9. Considering the facts and more particularly the fact that the learned advocate, who was representing the petitioner before the lower Court, has unfortunately expired on 7.11.2010 and it appears from the record that the petitioner came to know about the order of dismissal dated 17.7.2008 only on 20.1.2011 as well as considering the fact that the petitioner is aged about 75 years and is suffering from illness, it would be appropriate to consider this case only for condonation of delay in preferring the Restoration Application. It further transpires from the record that because of some miscommunication between the learned advocate representing the petitioner before the lower Court and the petitioner, the Restoration Application could not be filed within the statutory time limit. Without going into the merits of the Restoration Application, it would, therefore, be appropriate to condone the delay in preferring Restoration Application No.30 of 2011 and the interest of justice would be served if Misc. Application No.54 of 2011 is allowed by condoning delay and remitting the matter back to the Gujarat State Cooperative Tribunal for hearing of Restoration Application No.30 of 2011 on its own merits. Mr. Jigar Gadhavi, learned advocate for respondent No.1 is right in submitting that even if considering the old age of the petitioner and the circumstances emerging from the record of the petition, as discussed hereinabove, a lenient view is taken by this Court and the petitioner should be saddled with appropriate costs.
6. Learned counsel for the complainant stated that it is not material that after how much time the restoration application is filed. The court has to see the explanation for the delay. In support of his argument, learned counsel referred to the decision of the Hon'ble Supreme Court in N. Balakrishnan Vs. M.Krishnamurthy, (1998) 7 SCC 123, wherein the Apex Court has laid down the following:-
"9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court."
7. On the other hand, learned counsel for the opposite party Insurance Company stated that the certified copy of the order dated 04.07.2011 dismissing the complaint in default was obtained by the learned counsel for the complainant, however no restoration application was filed in time. Clearly, it seems that the complainant and the learned counsel might have decided not to file the restoration as the amount under the policy Rs.8,89,168/- was already paid to the complainant otherwise it is not comprehensible that the complainant should keep silence for about 5 years and then suddenly wake up to file the present restoration application.
8. Learned counsel for the opposite party further stated that special limitation periods are prescribed in the Consumer Protection Act, 1986 for speedy disposal of the consumer disputes. If highly belated complaints are entertained by the consumer forum, there would be no end to consumer disputes. In the present case, the insured was suffering from Rheumatic Heart disease and the same was not disclosed in the proposal form. Thus, clearly the policy had become void. However, the Insurance Company had already refunded the amount of the policy for Rs.8,89,168/- to the complainant. In the application for condonation of delay, no explanation has been given in the application for day to day delay in the matter. Without such explanation, huge delay of roughly five years cannot be condoned.
9. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have perused the record. From the application of condonation of delay, it is seen that the complainant is claiming knowledge of order dated 04.07.2011 only after the death of the concerned counsel. It is not clear why did complainant not contact the counsel when he was alive. It was the complaint case for Rs.1,50,00,000/- and even then the complainant did not contact the counsel for so many years for following up the matter. Even though an Advocate is given authority by the client to conduct and pursue the case in the court, it does not absolve the client from not pursing and monitoring the case for his or her own benefit. A period of 30 days is provided for filing the restoration application in the Regulation No.14 of the Consumer Protection Regulations, 2005. This Regulation reads as under:
14. Limitation.-(1 )
(ii) Application for setting aside the ex-parte order under section 22A or dismissal of the complaint in default shall be maintainable if filed within thirty days from the date of the order or date of receipt of the order, as the case may be;
10. Based on the above Regulation, it is clear that an application after a lapse of 30 days from the date of this order or knowledge of the order could not be maintainable. In the present case, the order was passed on 04.07.2011 and even the certified copy was obtained on 08.07.2011. As claimed by the complainant in the application for condonation of delay, the complainant came to know this order dated 04.07.2011 on 08.07.2011 when she received the file from her counsel in May 2016, but the restoration application has been filed on 19.08.2016. This position is when we discount the fact that a certified copy was issued on 8.7.2011 itself and the presumption would be that the order came to notice on 8.7.2011. Clearly, the application has been filed beyond the period of 30 days even from the date of knowledge of the order dismissing the complaint and according to Regulation No.14, the application is not maintainable. In taking this view, this Commission is supported by decision of the Hon'ble Supreme Court in Oil and Natural Gas Corporation Limited Vs. Gujarat Energy Transmission Corporation Limited & Ors., (2017) 5 SCC 42, wherein the Hon'ble Supreme Court has observed the following:-
"18. ....... The review application was presented before the Tribunal on 10-1-2008. The main order as has been stated earlier was passed on 28-9-2007. Thus, the application for review was filed after expiry of 60 days, that is to say, the limitation that is prescribed for filing of an appeal before this Court. In such a situation it cannot be said that there has been any kind of due diligence on the part of the appellant. Therefore, the observations made in para 9 of Suryachakra Power Corpn. Ltd. do not assist the respondent.
19. Another aspect needs to be adverted to Mr. Agrawal submits that when the delay in review was condoned by this Court, the appellant should not be permitted to raise a preliminary objection. Suffice it to say, it is not an application under Section 5 of the Limitation Act which is to be entertained by the Court. We are singularly concerned with entertaining of an application for condonation. If the delay is statutorily not condonable, the delay cannot be condoned. There is no impediment to consider the preliminary objection at a later stage. That will be in consonance with the statutory provision. Needless to say, the order passed by this Court condoning the delay has to be ignored and we do so."
11. Moreover, it is seen that nothing is mentioned in the application for condonation of delay regarding any communication between the complainant and the advocate from 04.07.2011 till May, 2016. No explanation has been given in the application for condonation of delay by the complainant for this period. Special periods of limitation have been prescribed in the Consumer Protection Act, 1986, its Rules 1987 and Regulations, 2005 for speedy disposal of consumer disputes. Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC)has 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."
12. Decision of Anshul Aggarwal (Supra) has been reiterated in CicilyKallarackalVs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon'ble Supreme Court observed;
"4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/ Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).
5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.
6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay."
13. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court 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".
14. The above quoted authoritative judgments of the Hon'ble Supreme Court are fully applicable in the facts and circumstances of the present case. Negligence and deliberate inaction are clearly imputable to the complainant in filing the present restoration application. In this perspective, I do not find any merit in the application for condonation of huge delay of 1475 days in filing MA No.597 of 2016 for restoration of complaint which was dismissed on 04.07.2011 in default and for non-prosecution. Accordingly, MA No.597 of 2016 is dismissed.
...................... PREM NARAIN PRESIDING MEMBER