State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd. vs Biswajit Chowdhury on 4 March, 2009
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. FA/08/464 DATE OF FILING: 08.12.2008 DATE OF FINAL ORDER: 04.03.2009 APPELLANTS 1) The New India Assurance Company Limited 7, Ganesh Chandra Avenue Kolkata 700 013 2) The Regional Manager The New India Assurance Company Limited 4, Mangoe Lane Kolkata 700 001 RESPONDENT Biswajit Choudhury Flat No.207, Skyline 2, Bidhan Sishu Sarani Kolkata 700 054 BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MR. A.K. RAY MEMBER : MRS. S. MAJUMDER FOR THE APPELLANTS : Mr. N.R. Mukherjee, Advocate FOR THE RESPONDENT : Ms. S. Roychowdhury, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This is an application for condonation of delay in preferring the appeal. The appeal was filed against order dated 10.6.2008 by District Consumer Disputes Redressal Forum, Kolkata Unit-I in Case No. 323 of 2003 whereby complaint was allowed directing OPs to pay Rs.1,16,511/- towards the claim against the Insurance Policy towards the cost incurred during the period of treatment and also to pay Rs.3,000/- and Rs.1,000/- respectively as compensation and litigation cost. The certified copy was applied for on 09.9.08 and it was delivered on the same day.
The appeal was filed on 08.12.2008.
The Ld Advocate for the appellant in support of the application contended that as the Forum below failed to supply copy of the order impugned as required under Regulation 21 of the Regulations framed under the Consumer Protection Act, 1986, the period of limitation will not start and in the present case the appellant having obtained a certified copy when preferred the appeal, no question on the bar by limitation can be raised.
On behalf of the OPs reliance was placed on the facts stated in their written objection filed to the application for condonation and it is contended that the Forum below passed the impugned order on 10.6.08. The period of 30 days expired and the appeal was not filed even on the last day available for filing appeal within limitation period. It is stated that the Respondent communicated the order dated 10.6.08 to the appellant and the Chairman of the New India Assurance Co. Ltd. which was duly received by them and the Acknowledgement Card along with the Notice and Postal receipts were annexed to the said written objection.
In such background it is contended that when the copy of the order dated 10.6.08 was obtained by the complainant on 23.6.08 and the same was supplied within the period of limitation to the appellants, the appellants are not entitled to condonation of delay particularly when the receipt of the letter dated 30.6.08 is admitted by the appellants in Paragraph 7 of their reply filed to the objection of the complainant.
Mr. N.R. Mukherjee, the Ld. Advocate for the Appellant contended that law enjoins a duty upon the Forum to supply copy of the order to the parties and this not having been done, the period of limitation is not to run and, therefore, when the certified copy was received by the appellant, the appeal can not be treated as barred by limitation. On the other hand Ms. Roychowdhury contended that the argument on communication of the order under Rule 5(10) and supply of copy under Regulation 21(1) is not available in the present case as the appellants even after receipt of the information as also copy of the said order did not take any steps for a long time and waited till 09.9.08 for applying for a certified copy and to prefer the appeal on the basis thereof on 08.12.08 though certified copy was made available on the same day of making the application.
We have considered the said contentions.
Law in this regard is contained in Regulation 21 of the Consumer Protection Regulations, 2005 framed by the National Consumer Disputes Redressal Commission in exercise of power conferred by Section 30A of the Consumer Protection Act. In this connection reference was also required to be made to Rule 8(iii) of the West Bengal Consumer Protection Rules, 1987 which requires that each Memorandum of Appeal shall be accompanied by the certified copy of the order of the District Forum appealed against. Therefore, by the said provision of the Rule a certified copy is required by any appellant intending to prefer an appeal. But the copy of the impugned order sent to the appellant does not bear the endorsement certified to be true copy nor it contains the required information to be contained in a certified copy.
On perusal of Regulation 21 mentioned hereinabove it is seen that under sub-Regulation (1) thereof a copy of the order is to be given to the parties free of cost and under sub-Regulation (2) in case a party requires an extra copy, it shall be issued to him duly certified by the Registry on a payment of Rs.20/- irrespective of number of pages.
Sub-Regulation (3) and (4) of Regulation 21 provides that a certified copy of an order shall clearly specify the date when free copy was issued, date of application, date when the copy was made ready and the date when it was so delivered to him and fee of Rs.20/- shall be paid for obtaining another certified copy.
Therefore, we find from Regulation 21 two types of copies of the order have been contemplated
- one being a copy of the order to be given to the parties free of cost as mentioned in Sub-Regulation (1) thereof and the other one as mentioned in sub-Regulations (2),(3),(4) and (5) which is a certified copy specifying the various dates being date when free copy was issued, date of application, date when the copy was made ready and the date when it was delivered. We also notice that the word Certified has not been used in sub-Regulation (1) of Regulation 21 but has been used in Sub-Regulations (2),(3),(4) and (5) thereof.
Moreover, copy under Regulation 21(1) has been referred as free copy in Regulation 21(3).
Therefore, it appears that the requirement of Rule 8(iii) above mentioned is of a certified copy along with Memorandum of Appeal and not the free copy mentioned in Regulation 21(1). Therefore, the appeal is not contemplated with the copy supplied free of charge under Regulation 21(1) which is supplied for communication only and appeal has to be filed along with a certified copy as mentioned in sub-Regulations (2),(3),(4) and (5) of Regulation 21.
The reason for such interpretation is that in case of an appeal, limitation has to be calculated and the same is possible from the information as required by Regulation 21(3) to be incorporated in the certified copy but the copy for communication under regulation 21(1) not containing such particulars, can not help calculation of limitation.
Law in this regard was considered on 17.7.1995 earlier in the case of Union of India-Vs-Ramesh Kumar reported in (1995)3 CPJ 67 by the Honble National Commission considering the provisions of Punjab Consumer Protection Rules 1987 and Rule 8(4) thereof in particular. This law was also considered few days thereafter on 01.9.95 by the Apex Court in the case of Housing Board, Haryana-Vs-Housing Board Colony Welfare Association reported in (1995) 3 CPJ
28. The judgment in the case of Ghaziabad Development Authority-Vs-Satya Pal Singhal reported in 2003 NCJ 202 by the Honble National Commission did not consider the provisions of law which are relevant in the present proceeding.
The judgments of the Apex Court and of the Honble National Commission in the abovementioned cases are binding on this Commission for the purpose of application of the law for calculation of limitation. But the position has been altered on introduction of Consumer Protection Regulations 2005 framed by the Honble National Commission in exercise of the powers conferred by Section 30A of the Consumer Protection Act, 1986.
Regulation 21 of the said Regulation runs as follows:
21. Certified Copy:-(1)
A copy of the order is to be given to the parties free of cost as required under the Act and the rules made thereunder, (2) In case a party requires an extra copy, it shall be issued to him duly certified by the Registry on a payment of Rs.20/- irrespective of number of pages.(3)
A certified copy of an order shall clearly specify the date when free copy was issued, date of application, date when the copy was made ready and the date when it was so delivered to him.(4)
A fee of Rs.20/-
shall be paid for obtaining another certified copy.(5)
Any party desiring to get a certified copy of any document on the file of the Consumer Forum, may get the same on payment of certification fee of twenty rupees per copy. Provided that if any such document of which certified copy is sought, is over and above 5 pages, an extra amount of one rupee per page shall be charged over and above the fee of twenty rupees.(6)
Certified copy of any miscellaneous order passed by the Consumer Forum shall be supplied on payment of Rs.5 per copy.
Considering the provisions of Regulation 21 we find that the word Certified has not been used in Sub-Regulation 1 thereof though the same has been consistently used in Sub-Regulation 2 to 6 thereof. For the purpose of interpretation the omission of the expression certified from Sub-Regulation 1 in distinction from Sub-Regulations 2 to 6, appears to be intentional as the certain particulars as required in Regulation 21(3) are vitally required for the purpose of calculation of limitation period which is not required when it is a mere communication. This Regulation 21(3) even mentioned noting of date of receipt of free copy as also date applications for certified copy which provision makes the intention of the framers of the law clear.
We also take note of the fact that unless the interpretation as given above, is accepted the provision of limitation will become infructuous as any party will be entitled to obtain a certified copy at any convenient point of time alleging non-receipt of a copy of the order sent for communication and even if such certified copy is obtained even after few years of the order, the appeal is to be entertained.
Provision for supply of copy of the order has been made in regulation and even communication of order was made in the Rules and not provided in the Act but law of limitation is contained in the Act itself. Therefore, for the purpose of implementing provisions of rules and regulations for supplying copy of the order such interpretation is not to be given which will make the provision of limitation contained in the Act infructuous.
In case a party is not really supplied with a copy of the order for communication and he is not aware of the proceeding before the Forum, on his knowledge about the judgment in the Forum, such party will be entitled to obtain a certified copy and to prefer an appeal with an application for condonation of delay stating the facts and circumstances and the same if found to be sufficient cause, the delay can be condoned on that ground and the party will not be suffering any prejudice.
In the present facts it is apparent that the complainant communicated the said order within the period of limitation even from the date of the order. Receipt of the same has been admitted in Paragraph 7 of the reply filed by the appellant to the written objection of the Respondent. But the copy of the letter disclosed by the respondent does not show copy of the order was actually sent though ordering portion was communicated. From the application for condonation we do not find any mention or statement of activities of the appellant on receipt of the copy of the intimation of the order supplied by the complainant. The period explained on the ground of personal difficulty of the Ld. Advocate as stated in Paragraph 3 & 4 of the application has not been disputed by the Respondent and is accepted as sufficient ground. This does not explain the full period of delay. We find that the knowledge of the judgment has not been admitted in the application itself and only explanation is given on the Execution Case filed by the complainant in the Forum below and receipt of notice of such Execution Case on 17.11.08, we were surprised to find such conduct on the part of the appellant for totally suppressing the fact of their receiving intimation about the order impugned on 10.7.08 as admitted by the appellant in their reply. This period starting even from 10.7.08 having not been explained even in the reply giving specific dates and actions taken, we are of the opinion that this shows total negligence on the part of the appellant over and above the attempt to suppress fact at the earlier stage while preferring the appeal. There being no explanation found for the aforesaid substantial period and the delay being a long one, there is no sufficient grounds or reasons for condonation thereof and the application is, therefore, dismissed.
The appeal accordingly stands dismissed and there will be no order as to costs.
(S. Majumder) (A.K. Ray) (Justice A. Chakrabarti) MEMBER(L) MEMBER PRESIDENT