National Consumer Disputes Redressal
Mrs. Atma J Singh vs The New India Assurance Company Ltd. on 5 March, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1388 OF 2011 with I.A. No.01 of 2011 (Condoation of Delay) (From the order dated 13.4.2010 First Appeal No.1005/2008 of the State Commission, Maharashtra) Mrs. Atma J Singh (Through her husband Jagdish Ramsingh The Authorised Representative) R/at, 402, Snehavatika Co-op. Housg. Society, Ram Baug, Lane No.5, Kalyan (West), Distt. Thane, Maharashtra Petitioner Vs. 1. The New India Assurance Company Ltd. Sadhana Chambers Dhamankar Naka, Bhiwandi, Distt. Thane, Maharashtra ...Respondent no.1 2. Bank of India Kalyan Branch Junjarao Market, Jain Market, Kalyan, Distt. Thane, Maharashtra Respondent no.2 BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. Arun Berry, Advocate For the Respondent no.1 : Mr. S.M. Tripathy, Advocate For the Respondent no.2 : Already ex parte Pronounced on: 5th March, 2013 ORDER
PER MR.
JUSTICE V.B. GUPTA, PRESIDING MEMBER Being aggrieved by order dated 13.4.2010, passed by Maharashtra State Consumer Disputes Redressal Commission, Mumbai (for short State Commission) petitioner has filed the present revision petition. Alongwith it, an application seeking condonation of delay of 167 days has also been filed.
2. This Commission vide order dated 29.9.2011 issued notice of condonation of delay to the respondents. Respondent no.1 has filed reply to this application. Whereas, respondent no.2 was duly served but did not appear. Hence, vide order dated 29.11.2012, it was proceeded ex parte.
3. We have heard the learned counsel for the parties and gone through the record.
4. Brief facts are that, petitioner/complainant filed a consumer complaint against respondent no.1/opposite party, since it repudiated her insurance claim for the loss caused to her shop due to floods.
5. Respondent no.1 had repudiated the claim on the ground that the claim was lodged 45 days after the incident and it also did not cover the alleged loss.
6. District Consumer Disputes Redressal Forum, Thane (for short, District Forum) vide order dated 5.3.2008, allowed the complaint.
7. Being aggrieved, respondent no.1 filed appeal before the State Commission, which allowed the same, vide impugned order.
8. During the course of arguments, learned counsel for petitioner pointed out that there is delay of 176 days and not 167 days. The short question which arise for consideration is as to whether there are sufficient grounds for condoning the delay of 176 days. Main grounds on which delay has been sought read as under;
A. That the petitioner received the certified copy of order only on 3rd August, 2010. The petitioner was busy consulting various lawyers and seeking advice whether it would be fit and proper to challenge the said order. However, when the petitioner decided to file the revision petition in the month of November, 2010 the petitioner realized that the petitioner had misplaced the certified copy of the order. Therefore, the petitioner immediately went before the Honble State Commission at Mumbai at Maharashtra and applied for the second copy, in the month of October, 2005, wherein the petitioner was informed and advised that they have send the copy of order vide post at the petitioners registered address but the till the end of February, 2011 the petitioner did not receive any copy of such order from the Honble State Commission.
B. In the month of February and March the petitioner was too occupied with the marriage of her eldest son which was held on 1st March, 2011 and thus couldnt pursue the said matter and thus there has been delay on the part of the petitioner in filing the said revision petition before this Honble Court.
C. However, still in spite of the busy schedule of the petitioner on account of the marriage of the eldest son of the petitioner, the petitioner still made efforts to obtain the certified copy of the order and thus filed an application before the Honble State Commission on 15th Feb., 2011 and requested for obtaining the certified copy of order again as the earlier copy had been misplaced by the petitioner and till date the petitioner has not received the copy send to her registered address by post and it was only then that the petitioner obtained the certified copy of order dated 13th April, 2010, on 15th Feb., 2011. Hereto annexed is the copy of the application made to obtain the certified copy of the order from the Honble State Commission.
D. But as stated above the petitioner was busy with her son marriage and as all relatives had come from native village and as the petitioner being the women of house had to take care of all the matrimonial obligations there has been delay in filing the said revision petition before this Honble court and thus the said application before this Honble Commission in the interest of justice and equity and in the just decision of the said matter.
4. The revision petitioner therefore submits that the delay involved in filing the revision petition is not intentional and or deliberate and the same as submitted in the grounds above as due to the circumstances beyond the control of the revision petitioner.
9. Respondent no.1, in reply to the application has stated that Petitioner decided to file revision in November, 2010, when it had already become time-barred. No immediate steps were taken to obtain a duplicate copy of the order, if the original was misplaced. There have been deliberate latches. It is further stated that one does not get so much occupied for two months in sons marriage that necessary legal steps to preserve ones legal rights are ignored. The petition has been filed with considerable delay with no reasonable cause for delay.
10. As per petitioners own case she received the certified copy of the order on 3.8.2010. Thereafter, till November, 2010 for about four months she remained busy in consulting various lawyers and seeking advice. Petitioner has not mentioned the name of even single lawyer with whom she had consultation nor has filed any affidavit of any of those lawyers in this regard. The fact that petitioner took four months to have consultation with her lawyers goes on to show as how negligent and careless she was in challenging the impugned order. In the same breath petitioner took another plea that she had gone before State Commission at Mumbai and applied for the second copy in the month of November, 2005, since she has misplaced the earlier certified copy of order. It is further the case of the petitioner that marriage of her son was held on 1.3.2011 and as such she could not pursue the present matter. The other ground taken for condonation of delay is that she filed an application for obtaining the certified copy before the State Commission, on 15.2.2011. We fail to understand as to how many certified copies of the order, petitioner had obtained in this case. The reasons mentioned in the application seeking condonation of delay are nothing but purely a cock and bull story which has no legs to stand. The petitioner cannot take advantage of her own wrong. Moreover, a valuable right has accrued to the respondent, which cannot be brushed aside for the careless and negligent act on the part of the petitioner.
11. It is well settled that sufficient cause for condoning the delay in each case is a question of fact.
12. 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.
13. Similarly, in Oriental Insurance Co.
AIR 1994 Punjab and Haryana 45, it has been laid down that;
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 bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.
14. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been 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.
15. Further, Honble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed 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.
The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst.
Katiji (1987)2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and 10 Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106.
16. Apex Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has observed ;
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.
17. This Commission in Mahindra Holidays & Resorts India Ltd. vs. Vasantkumar H. Khandelwal and Anr., Revision Petition No.1848 of 2012 decided on 21.5.2012 has held;
that under the Consumer Protection Act, 1986 the District Forum is supposed to decide the complaint within a period of 90 days from the date of filing and in case of some expert evidence is required to be led then within 150 days. The said Bench dismissed the revision petition on the ground that it was delayed by 104 days.
18. It is well settled that latches and negligence cannot command premium and for the fault of petitioner, respondent cannot be made to suffer. The observations made in the authoritative pronouncements discussed above, are fully attracted to the facts and circumstances of the case.
19. Thus, gross negligence, deliberate inaction and lack of bonafides is imputable to the petitioner. No sufficient grounds had been made out for condoning the long delay of about six months in filing of the present revision petition. Under these circumstances, application for condonation of delay is not maintainable. Consequently, present petition being barred by limitation stand dismissed with cost of Rs.5,000/- (Rupees Five Thousand only).
20. Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Welfare Fund as per Rule 10A of the Consumer Protection Rule, 1987, within four weeks from today. In case, petitioner fails to deposit the cost within prescribed period, then she shall be liable to pay interest @ 9% p.a. till its realization.
21. List on 3.5.2013 for compliance.
..J (V.B. GUPTA) PRESIDING MEMBER ..
(REKHA GUPTA) MEMBER Sg.