State Consumer Disputes Redressal Commission
The Oriental Insurance Company Limited vs Shivdhan Sahu on 9 January, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Miscellaneous Case No.14/12
Instituted on : 13.11.2014
The Oriental Insurance Company Limited,
Through : Divisional Manager,
Divisional Office - Korba,
Geetanjali Bhawan, Main Road,
Raipur (C.G.) ... Applicant
Vs.
Shivdhan Sahu, S/o Abheyram Sahu,
Aged about 33 years,
R/o :Village - Nariyara, Tahsil - Akaltara,
P.S. Pamgarh, District Janjgir Champa (C.G.) ... Respondent
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER COUNSEL FOR THE PARTIES :
Shri R.N. Pusty, for appellant.
ORAL ORDER DATED : 09/01/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This is an application filed by the applicant (complainant) for modification of the order dated 23.05.2014, passed by this Commission in Appeal No.FA/13/654, which was earlier filed by the applicant (O.P.) against the order dated 08.11.2013, passed by the District Consumer Disputes Redressal Forum, Janjgir - Champa (C.G.) (henceforth "District Forum" in Complaint Case No.32/2012, whereby the learned District Forum has allowed the complaint and directed the // 2 // applicant (O.P.) to pay within a period of two months from the date of order a sum of Rs.5,00,000/- which is insured declared value of the tractor - trolley.
2. The appellant (O.P. No.4) has preferred this application belatedly by 142 days and has also filed application for condoantion of delay..
3. We have heard arguments of Shri R.N. Pusty, learned counsel for the applicant (O.P.) on the application filed for condonation of delay.
4. In Revision Petition No.1616 of 2011 - National Insurance Company Ltd. Vs. Shri P. Rangaswamy & anr., decided on 11.11.2013, Hon'ble National Commission held thus :
"8. In Ram Lal & others 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 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 // 3 // power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.".
9. In R.B. Ramlingam vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed thus ;
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.
10. Hon'ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay in Oriental Aroma Chemical Industries Ltd. vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as under ;
We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.
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5. In Basavraj & Anr. V. The Spl. Land Acquisition Officer, 2013 AIR SCW 6510, Hon'ble Supreme Court observed thus:
"9. Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient"
embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See: Manindra Land and Building Corporation Ltd. v. Bhootnath Banerjee &Ors., AIR 1964 SC 1336; Lala Matadin v. A.Narayanan, AIR 1970 SC 1953; Parimal v. Veena alias Bharti AIR 2011 SC 1150 : (2011 AIR SEW 1233); and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629 : (2012 AIR SCW 2412.)
12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim "dura lex sed lex" which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.
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15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
6. In Ludhiana Improvement Trust vs. Ms. Harpreet Kaur, 2013 (4) CPR 848 (NC), Hon'ble National Commission observed thus :-
"11. Hon'ble Apex Court in Post Master General & Ors. Vs. Living Media India Ltd. and Anr. (2012) 3 SCC 563, has not condoned delay in filing appeal even by Government department and further observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.
Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 62 days. In such circumstances, application for condonation of delay has been dismissed. As application for condonation of delay has been dismissed, revision petition being barred by limitation is also liable to be dismissed."
7. In N. Manohar Reddy v. Happy Farm and Resorts, I (2014) CPJ 149 (NC), Hon'ble National Commission held thus :-
// 6 // "16. This Section does not help a person who is guilty of negligence, laches or inaction. The test of good faith is real and bona fide belief of the plaintiff that he could institute the proceedings in the Court where he first instituted it.
25. It is well settled that "sufficient cause" for non-appearance in each case, is a question of fact. Delhi High Court in New Bank of India v. 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 bona fide 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 guidelines 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.
26. In Ram Lal and Ors. v. 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 Section 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 // 7 // 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 inquiry 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.
30. Decision of Anshul Aggarwal (supra), has been reiterated in Cicily Kallarackal v. Vehicle Factory, IV (2012) CPJ 1(SC) 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 petition.
Therefore, we do not see any cogent reason to condone the delay.
6. Hence, in the facts and circumstances of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay." [See also Amarjyothi House Building Co-operative Society Limited v. V.S. Pradeep, I (2014) CPJ 438 (NC)."
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8. The Hon'ble Supreme Court in Anshul Aggarwal v. 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."
9. Shri R.N. Pusty, learned counsel appearing for the applicant (O.P.) prayed for condoning the delay in filing the application on the grounds mentioned in the application filed by the applicant (O.P.) for condonation of delay and he seeks an opportunity to argue the matter on merits
10. The applicant (O.P.) has filed application for condoantion of delay in filing appeal, in which it is mentioned that after passing of the impugned order dated 23.05.2014, the certified copy of the same was prepared on 28.05.2014 and was dispatched at the address of the Divisional Office of the applicant (O.P.) at Bilaspur, which was received at the said office on 11.06.2014 which was immediately forwarded to the concerned Divisional Office of the applicant at Korba. Thereafter // 9 // obtaining opinion of the counsel for the applicant, the Divisional Office Korba had forwarded the matter after fulfilling necessary formalities to the Regional Office of the applicant (O.P.) at Raipur vide letter dated 26.06.2014 for perusing further remedy of appeal to the National Commission. The Competent Authority of Regional Office at Raipur however, after scrutinizing the file did not accord approval for appeal to the National Commission and hence the original file was returned to Divisional Office, Korba vide letter dated 15.07.2014 with permission for satisfying the award passed by learned District Forum as affirmed by this Hon'ble Commission subject to advice of taking adequate steps in compliance of post sanctioning O.D. claim formalities. As per procedure of post sanctioning OD claim formalities involving stolen vehicles, the complainant / claimant is required, amongst other things, to deposit (i) two keys of the vehicle involved in theft (ii) original R.C. book (iii) signed form no.28, 29, 30 (as prescribed under Motor Vehicle Act & Rules made threunder) duly notarized (iv) original insurance policy (v) affidavit before R.T.O. duly notarized with photographs etc. As there was no direction to the complainant either by the learned District forum or by this Hon'ble Commission for compliance of the above requirement before settlement of his claim as per order passed by the District Forum as stands affirmed b y this Commission hence despite letters issued by the applicant to the above effect on several occasion with a view to settle the claim at an early date as per orders // 10 // passed by the District Forum, the complainant has not come forward to comply the requirements which he mandatorily required to comply before settlement. The applicant (O.P.) deputed Shri S.K. Agrawal to collect the above requirements personally from the complainant, had yielded no result,. Thereafter some efforts were made on the part of the applicant to collect the papers etc. For compliance of post sanctioning OD claim formalities and further guidance was also sought from the regional office and ultimately vide letter dated 20.10.2014 the applicant had instructed the present counsel for moving application in respect of compliance of post claim formalities. The delay in the circumstances was due to bonafide reasons and the applicant was prevented by sufficient reasons from moving this Hon'ble Commission in time.
11. It is now well settled that departmental and official procedural delays do not constitutes "sufficient ground". It must be borne in mind that Consumer Protection Act, 1986 lays down its own period of limitation. The Limitation Act, which prescribes the summary procedure and its provisions should be strictly followed. In the instant case, looking to the application filed by the applicant (O.P.) for condonation of delay in filing the application and affidavit of Shri R.C. Parteti, Divisional Manager of the Insurance Company filed in support of the application for condonation of delay, it appears that the reasons assigned by the applicant (O.P.) in the application for // 11 // condonation of delay regarding delay in filing the application, are not satisfactory and delay has not been explained properly.
12. The miscellaneous application is barred by limitation by 142 days, and no proper explanation has been given. Thus, on the facts of the case, the miscellaneous application filed by the applicant (O.P.), is barred by limitation and no satisfactory explanation has been given by the applicant (O.P.) in the application filed for condonation of delay in filing the miscellaneous application. In the said application, no sufficient ground has been mentioned for condoning the delay in filing the miscellaneous application beyond the limitation, therefore, the miscellaneous application is hopelessly barred by time, which is liable to be dismissed.,
13. So far as merits of the case is concerned, the appellant (O.P.) filed an application for modification of the order dated 23.05.2014 passed by this Commission in Appeal No.FA/13/654. In para 2 of the application the applicant (O.P.) mentioned "In the above circumstances, the applicant seeks kind indulgence of this Commission by way of further direction to the complainant / respondent to deposit (i) two keys of the vehicle involved in theft (ii) original R.C. book (iii) signed form no.28, 29, 30 (as prescribed under Motor Vehicle Act & Rules made threunder) duly notarized
(iv) original insurance policy (v) affidavit before R.T.O. duly notarized with photographs etc. as a pre-condition for settlement of claim of the complainant // 12 // in respect of the insured vehicle i.e tractor trolley bearing no. C.G.11-D-1924 as per order passed by the learned District Forum dated 08.11.2003 in CC/32/2012 affirmed by this Commission.
14. In Consumer Protection Act, 1986, the State Commission and District Forums, have not vested with power to review or recall their earlier orders.
15. In Rajeev Hitendra Pathak & Others v. Achyut Kashinth Karekar, IV (2011) CPJ 35 (SC) = 2011 (9) SCC 541, Hon'ble Supreme Court observed thus :
"35. We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned Counsel for the parties.
36. On carefully analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex-parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far it has held that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review of recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of // 13 // 1999 be restored to its original number for hearing in accordance with law."
16. In the case of Bastar Jila Upbhokta Sanrakshan Samiti & Anr. vs. General Manager, District Trade and Industries Centre, Jagdalpur, 2012 (3) CPR 273 (NC), Hon'ble National Commission has observed thus :-
"14. It is settled law (vide Rajeev Hitendra Pathak & Others v. Achyut Kashinath Karekar & Another), (2011) 9 SCC 541 that neither a State Commission nor a District Forum has, under the provisions of the Act, the power to review or recall/modify any order passed by it. Thus, the District Forum has rightly dismissed the application filed by the complainant seeking restoration of her complaint dismissed earlier for non-prosecution. The State Commission has also correctly dismissed the appeal against that order."
17. In Manager, Hinduja Leyland Finance Ltd. Vs. Motilal Swain, 2014 (4) CPR 199 (NC), Hon'ble National Commission has observed thus :-
"5. After disposing Revision Petition, Learned State Commission had no authority to review its order in the light of judgment of Hon'ble Apex Court in Rajeev Hitendra Pathak VS. Achyut Kashinath Karekar 2012 (1) CPR 78 (SC)".
18. Looking to the above judgments of Hon'ble Supreme Court and Hon'ble National Commission, it is clear that the State Commission // 14 // does not enjoy any power of reviewing its earlier orders or recalling them.
19. Thus, the order dated 23.05.2014, passed by this Commission in appeal No.FA/13/654, which was earlier filed by the applicant (O.P.) before this Commission, cannot be reviewed or recalled.
20. Therefore, the present petition for review, is not maintainable and is liable to be dismissed.
21. Thus, the application filed by the applicant (O.P.) for modification of order dated 23.05.2014, is dismissed on both the counts i.e. limitation and maintainability of the review petition.
(Justice R.S.Sharma) (Ms.Heena Thakkar) (D.K.Poddar)
President Member Member
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