State Consumer Disputes Redressal Commission
Smt. Anupama Mahender vs M/S Icici Lombard General Insurance ... on 1 May, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 75 of 2015 Date of Institution : 22.04.2015 Date of Decision : 01.05.2015 Smt. Anupama Mahender Bhatti @ Anupama Bhatti, widow of late Shri Mahender Bhatti, resident of House No.231, Near Temple, Sector 35-A, Chandigarh ......Complainant V e r s u s M/s ICICI Lombard General Insurance Company Limited, having its Registered Office at ICICI Bank Towers, Bandra Kurla Complex, Mumbai-400051, through its Managing Director. Authorized Signatory, M/s ICICI Lombard General Insurance Company Limited, Claims Operations -FIG, 401, Interface, Building No.11, Link Road, Malad (West), Mumbai-400064. Branch Manager, ICICI Bank Limited, SCO 9-10-11, Sector 9-C, Chandigarh. ..... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh.Amit Chaudhary, Advocate for the applicant/complainant.
JUSTICE SHAM SUNDER (RETD.), PRESIDENT The facts, in brief, are that Sh. Mahender Bhatti (now deceased), husband of the complainant was insured with the Opposite Parties, for accidental death cover of Rs.20,25,000/- i.e. Rs.20 lacs for economically monthly cost plus Rs.25,000/- for no-cost accidental death, valid for the period from 19.12.2005 to 18.12.2006. It was stated that the complainant was nominated as beneficiary of the said Policy, by her husband Sh. Mahender Bhatti (now deceased).
It was further stated that on 02.11.2006, the husband of the complainant met with an accident. As such, he was taken to the Government Medical College and Hospital (GMCH), Sector 32, Chandigarh, where he died. It was further stated that information regarding his death was given to the Opposite Parties, on 30.11.2006. Claim was lodged with the Opposite Parties, by the complainant, upon which, she was provided with claim reference no.149578. It was further stated that representation dated 01.03.2007 Annexure C-8, in respect of the said claim, was also submitted by the complainant, to Opposite Party No.1.
It was further stated that the Opposite Parties vide letter dated 10.05.2007 Annexure C-9, repudiated the genuine claim of the complainant, without giving any justification. It was further stated that not only this, thereafter, the Opposite Parties started harassing the complainant, by issuing demand notices, in respect of the Policy, in question, and also gave threats to her, on telephone. It was further stated that the genuine claim of the complainant was illegally and arbitrarily repudiated by the Opposite Parties.
It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to set aside letters dated 10.05.2007 Annexure C-9 and 14.02.2012 Annexure C-10; to pay the claim amount of Rs.20.25 lacs, alongwith interest @18% P.A., from the date of accident of her husband, till realization; stop making demands, in respect of the said Policy and threatening calls; pay Rs.1 lac, towards deficiency in rendering service, adoption of unfair trade practice, mental agony and physical harassment; and cost of litigation, to the tune of Rs.10,000/-.
The complainant, in support of her case, submitted her own affidavit, by way of evidence, alongwith which, a number of documents were attached.
Alongwith the complaint, an application under Section 5 of the Limitation Act, for condonation of delay of 5 years 11 months and 10 days, was filed by the complainant. It was stated, in the application, that no doubt, the claim filed by the complainant, was rejected by the Opposite Parties, vide letter dated 10.05.2007 Annexure C-9, yet, thereafter, they (Opposite Parties) kept on issuing demand notices, in respect of the Policy, in question, till 14.02.2012, as also last threating call was received by her in March, 2015. It was further stated that since correspondence was being exchanged, between the parties, from time to time, after repudiation of the claim, the delay aforesaid occurred, in filing the complaint. It was further stated that delay, in filing the consumer complaint, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
We have heard the Counsel for the complainant, on the application, for condonation of delay, as also, in the main complaint, at the preliminary stage, and have gone through the record of the case, carefully.
The first crucial question that falls for consideration, is, as to whether, this Commission could entertain and admit the complaint, for regular hearing, simply, even if the same has not been filed within the period of limitation, as prescribed by Section 24 A of the Act. Section 12 (3) of the Act provides the procedure to be followed by a District Forum, State Commission or National Commission on receipt of a complaint. It envisages examination of the complaint with a view to find out, if going by the averments and allegations made in the same (complaint), it is fit to be admitted and proceeded with. In Ramesh Kumar Sihan Hans Vs. Goyal Eye Institute and others, Consumer Complaint No.135 of 2011 decided on 30.03.2012, it was held by the National Commission that the District Forum, State Commission or the National Commission are required to examine the complaint to find out (i) Whether the complainant is a consumer within the meaning of Section 2(1)(d) of the Act, and, as such, is entitled to invoke the original jurisdiction of the Consumer Forum; (ii) Whether the complaint raises one or more consumer disputes viz., unfair trade practice or restrictive trade practice, defects in goods or deficiency in service as defined under the Act; (iii) Whether the Consumer Forum has territorial and pecuniary jurisdiction, to entertain the complaint; (iv) Whether the complaint has been filed within the period of limitation, as prescribed by Section 24 A of the Act and; (v) Whether the complaint is accompanied by such amount of fee, as has been prescribed. The principle of law, laid down in Ramesh Kumar Sihan Hans's case (supra) is fully applicable to the facts of the instant case. It is, therefore, held that, this Commission can decide the question regarding limitation, before admitting the consumer complaint.
The next question, that falls for consideration, is, as to whether, there is sufficient cause for condonation of delay of 5 years 11 months and 10 days, in filing the consumer complaint, under Section 17 of the Act or not. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab and Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bonafide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court, it was held as under:-
"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 bonafides 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."
In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 19107 Punjab and Haryana 45, it was held as under:-
"There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.
In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-
"We hold that in each and every case the Court has to examine whether delay in filing the Special 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".
In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-
"The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]"
In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-
"Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay"
In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was 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 belated petitions filed against the orders of the Consumer Foras"
A bare reading of the first proviso, engrafted to Section 24 A (2) of the Act, makes it clear, that the material part of the language thereof, is pari-materia to Section 5 of the Limitation Act, 1963. Admittedly, the claim, in question, was rejected by the Opposite Parties vide letter dated 10.05.2007, Annexure C-9. It may be stated here that, once the repudiation letter was admittedly received by the complainant, on 10.05.2007, and she was not satisfied with the same, it was required of her, to file a consumer complaint, within the period of two years from 10.05.2007 i.e. on or before 09.05.2009. Mere writing of letters, or alleged issuance of demand notices, from time to time, or making alleged threatening calls to the complainant by the Opposite Parties, could not extend the period of limitation. Once the cause of action, accrued to the complainant, to file a complaint, no subsequent event could prevent the running of the period of limitation or extend the same. The applicant/complainant was required to explain each day's delay. Why it took 5 years 11 months and 10 days, in filing the consumer complaint, is not known. Thus, in our considered opinion, no sufficient cause is made out, from the averments, contained in the application, for condoning the delay. It appears that after receiving the repudiation letter dated 10.05.2007, the complainant, slept over the matter, and, ultimately, woke up, from her deep slumber, after 5 years 11 months and 10 days, when the instant consumer complaint was filed. It could be said that the applicant/complainant was not diligent, in pursuing the matter. As stated above, the prescribed period of limitation, as envisaged by Section 24 A of the Act, for filing the consumer complaint, is two years, from the date of accrual of cause of action. The applicant/complainant did not act, with due diligence, resulting into delay of 5 years 11 months and 10 days, in filing the consumer complaint, which is more than 72 times beyond the prescribed period of limitation. The cause set up by the applicant/complainant, in the application, for condonation of delay, could not be said to be plausible. The mere fact that the applicant/ complainant, acted in a leisure mood, without envisaging the consequences, which could ensue, on account of non-filing of the consumer complaint, within the period prescribed, under Section 17 of the Act, does not mean that she could be shown undue indulgence. The delay, in filing the consumer complaint was, thus, intentional, wilful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 5 years 11 months and 10 days, cannot be condoned. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.
The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory, on the Commission, to condone the delay. The answer to this question, is in the negative. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was held as under:-
"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."
It is evident, from the principle of law, laid down in Ram Lal & Ors.'s case (supra), that even 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, requires the Commission, to take into consideration, all the relevant factors, and it is, at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory, on the part of the applicant/complainant, to take immediate steps to ensure that the consumer complaint was filed within the prescribed period, as envisaged by Section 17 of the Act. However, the applicant/complainant, just slept over the matter, and did not take the requisite steps to file the consumer complaint, in time. It was, thus, a case of complete lack of bonafides and inaction, on the part of the applicant/complainant. The principle of law, laid down in Ram Lal & Others' case (supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission, should exercise its discretion, in favour of the applicant/complainant, in condoning the delay.
The next question, that arises for consideration, is, as to whether, this Commission can decide the consumer complaint, on merits, especially, when it has come to the conclusion, that there is no sufficient cause, for condonation of delay of 5 years 11 months and 10 days, in filing the same (consumer complaint). The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India Vs B.S. Agricultural Industries (I) II (2009) CPJ 29 (SC). The question before the Apex Court, was with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act. The Apex Court was pleased to observe as under ;
"Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:
"24A. Limitation period--(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."
It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, 'shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside."
The principle of law, laid down, by the Apex Court in State Bank of India's case (supra), is fully applicable to the present case. In case, this Commission, decides the consumer complaint, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in State Bank of India's case (supra).
For the reasons, recorded above, the application for condonation of delay of 5 years 11 months and 10 days, being devoid of merit, must fail, and the same is dismissed. Consequently, the consumer complaint under Section 17 of the Act, is also dismissed, being barred by time, at the preliminary stage, with no order as to costs.
Certified copies of this order, be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
May 1, 2015 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg.