State Consumer Disputes Redressal Commission
Iffco Kokio General Insurance Company ... vs M/S Poonamsari And Handloom Emporium on 6 January, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 434 / 2019
IFFCO-TOKIO General Insurance Company Limited
First Floor, Durga City Centre
Haldwani, Nainital
Also at
IFFCO-TOKIO General Insurance Company Limited
IFFCO Tower, Plot No. 3, Sector-29
Gurugram - 122 001
...... Appellant / Opposite Party No. 3
Versus
1. M/s Poonam Saree and Handloom Emporium
Near Sai Ashram, Haridwar Road
Shyampur, Rishikesh, District Dehradun
through its Proprietor Smt. Poonam Rani W/o Sh. Praveen Kumar
R/o Shyampur, Rishikesh, District Dehradun
...... Respondent No. 1 / Complainant
2. Almora Urban Co-operative Bank Limited
Shyampur, Rishikesh
District Dehradun through its Manager
3. General Manager, Almora Urban Co-operative Bank Limited
Head Office, Lala Ka Bazar
Almora, Uttarakhand
...... Respondent Nos. 2 and 3 / Opposite Party Nos. 1 and 2
Smt. Anjali Gusain, Learned Counsel for the Appellant
None for Respondents
Coram: Hon'ble Mr. Justice D.S. Tripathi, President
Mr. Udai Singh Tolia, Member-II
Dated: 06/01/2023
ORDER
(Per: Justice D.S. Tripathi, President):
This appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred against the impugned judgment and order dated 15.06.2019 passed by the District Consumer Disputes Redressal 2 Commission, Dehradun (in short "The District Commission") in consumer complaint No. 63 of 2017; M/s Poonam Saree and Handloom Emporium Vs. Branch Manager, Almora Urban Co-operative Bank Limited and others, by which the consumer complaint was allowed and the appellant - opposite party No. 3 was directed to pay claim amount of Rs. 6,00,000/- to respondent No. 1 - complainant together with Rs. 20,000/- towards mental agony and Rs. 5,000/- towards litigation expenses within a period of 30 days', failing which the respondent No.1 - complainant was also held entitled to interest @9% p.a. on the above amount from the date of institution of the consumer complaint till payment.
2. We have heard arguments advanced by learned counsel for the appellant on delay condonation application and perused the record. None appeared on behalf of respondents, although Sh. Anurag Negi, Advocate and Sh. Shailendra Singh, Advocate, have already put in appearance on behalf of respondent No. 1 and respondent Nos. 2 & 3 respectively.
3. According to office report dated 06.12.2019, the present appeal has been preferred by the appellant after a delay of 144 days'.
4. The delay condonation application has been moved by the appellant for condoning the delay in filing the appeal. The delay in filing the appeal has been explained by the appellant in the accompanying affidavit to the delay condonation application, wherein it has been averred that the consumer complaint was decided by the District Commission, Dehradun vide judgment and order dated 15.06.2019, certified copy whereof was received by the appellant on 20.08.2019. The consumer complaint was proceeded ex-parte against the appellant per order dated 08.05.2017. However, the appellant did 3 not receive any update from the counsel engaged before the District Commission. Thereafter, the final order was passed in the consumer complaint on 15.06.2019. The Delhi office of the insurance company had no knowledge of the final order till 06.08.2019, when they received notice in execution proceedings. Thereafter, the counsel at Dehradun was immediately contacted and upon perusal of file, it transpired that the counsel so deputed, had failed to appear before the District Commission. The new counsel was appointed on 13.08.2019 and the copy of order-sheet was obtained and received by Delhi office on 07.09.2019. The claim file was received from the warehouse at the Delhi office on 15.09.2019. The dealing official at the Delhi office inadvertently missed to take up the matter for further approval, which was done on 18.10.2019. The dealing official at Delhi CSC after obtaining necessary approval for filing appeal, forwarded the file to Corporate Office on 01.11.2019, which was received there on 06.11.2019. Thereafter, instructions were given to the counsel at Dehradun for filing appeal. The said counsel prepared the appeal and sent the same to the Corporate Office for signatures and the same was sent back to Dehradun on 27.11.2019. The delay in filing the appeal is bonafide.
5. Learned counsel for the appellant, while placing reliance on the above averments made in the affidavit filed in support of delay condonation application, submitted that in the interest of justice, the delay in filing the appeal should be condoned and the appeal should be heard and decided on its merit.
6. From the averments made in the affidavit filed by the appellant in support of delay condonation application, it is apparent that the main ground taken by the appellant is that of negligence / misconduct on the part of the counsel so engaged by the appellant for contesting 4 the consumer complaint on its behalf before the District Commission. The perusal of the impugned judgment and order shows that inspite of sufficient service of notice, which has also been admitted by the appellant, the appellant failed to appear before the District Commission and vide order dated 08.05.2017, the consumer complaint was directed to proceed ex-parte against the appellant. The ground so taken by the appellant for condonation of delay in filing the appeal, can not be termed as "sufficient ground".
7. It is now well settled that on account of negligence of the counsel, the party can not get any benefit and any laches on the part of the counsel in prosecuting the matter. Negligence on the part of the counsel is to be treated as negligence / laches on the part of the concerned party itself. In the case of Swiss International Air Lines Ltd. Vs. Jitender Mohan Bhasin and others reported in III (2012) CPJ 583 (NC), there was delay of 244 days' in filing the revision petition. It was held by Hon'ble National Commission that the petitioner has failed to offer convincing rationale of reasons in support of his application. It was also held that the name of earlier counsel was not mentioned in the application and it was the duty cast on the petitioner itself to find out what has happened to his case and whether appeal has been filed or not. It was observed that there was gross negligence, deliberate inaction and lack of bonafides are imputable to the petitioner and the delay was not condoned. In the case of Vinod Kumar Patel Vs. Sambit Kumar Das reported in III (2012) CPJ 703 (NC), it has been held by Hon'ble National Commission that it is well settled that qui facit per alium facit per se. Negligence of a litigant's agent is negligence of the litigant himself and is not sufficient cause for condoning delay.
58. Hon'ble National Commission in the case of Jain International Sansthan Vs. Krish City, Bhiwadi and another reported in III (2016) CPJ 2 (NC), has declined to condone the delay of 168 days' in filing the revision petition and has held that no lucid excuse is forthcoming from the petitioner to justify the delay in filing the revision petition. It was held that the case is barred by time. In the said decision, reliance was placed upon the decision of Hon'ble Apex Court given in Special Leave to Appeal (Civil) No. 37183 of 2013; Sanjay Sidgonda Patil Vs. Branch Manager, National Insurance Company Limited and another, decided on 17.12.2013 reported in 2013 (SLT Soft) 6, wherein Hon'ble Apex Court has confirmed the order of Hon'ble National Commission and refused to condone the delay of 13 days'.
9. Hon'ble National Commission in the case of HUDA Vs. Sunil Gupta reported in IV (2012) CPJ 360 (NC), has declined to condone the delay in filing the revision petition. In the said case, the delay of 36 days' in filing the revision petition was not condoned and it was held that the procedural delay is not the sufficient cause for condoning the delay. Hon'ble National Commission in the case of Rajasthan Housing Board Vs. Vishnu Chand Sharma reported in IV (2012) CPJ 676 (NC), has held that the only explanation that file was moved from table to table to get permission to file petition is not sufficient and the delay of 169 days' in filing the revision petition was not condoned.
10. Learned counsel for the appellant cited judgment dated 27.07.2018 of Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in Misc. Application No. 556 of 2017; Employee's State Insurance Corporation Housing Board Vs. Sh. Manjinder Singh and another. In the said case, it was held that the 6 party could not be penalized for the fault of advocate. The above decision was passed relying upon decision of Hon'ble National Commission in the case of Eicher Tractor Ltd. Vs. Late Chitranjan Prasad Singh and others reported in III (2003) CPJ 26 (NC) and Life Insurance Corporation of India Vs. Consumer Education and Research Society and others reported in 1994 (2) CPJC 197 (NC). The above law has been overruled and as of now, the party can not get any benefit of laches on the part of the counsel. Learned counsel also cited judgment dated 22.07.2022 of Hon'ble High Court of Kerala at Ernakulam in OP (C) No. 281 of 2022; Rajesh Chandran Vs. M.R. Gopalakrishnan and others, wherein reliance was placed upon judgment of Hon'ble Apex Court in the case of Collector, Land Acquisition, Anantnag Vs. Katiji reported in AIR 1987 (SC) 1353, wherein it was held that the party should not suffer for inaction, deliberate omission or misdemeanour of his counsel. The said judgment also does not provide any help to the appellant, in view of the prevailing law, as discussed above. Similar is the position with another judgment cited by learned counsel for the appellant, i.e., judgment dated 02.05.2022 of Hon'ble High Court of Gujarat at Ahmedabad in R/Special Civil Application No. 6547 of 2020; Nimesh Dilipbhai Brahmbhatt Vs. Hitesh Jayantilal Patel.
11. Apart from above, according to appellant, the approval for filing the appeal was obtained on 01.11.2019, but the appeal has been filed with an inordinate delay on 06.12.2019.
12. For the reasons aforesaid, we are of the considered opinion that the appellant has not been able to satisfactorily explain an inordinate delay in filing the appeal and there is no plausible explanation put forward by the appellant for making a case in its favour, so as to allow the delay condonation application and condone the delay in filing the 7 appeal. Consequently, the application for condonation of delay warrants dismissal.
13. Application for condonation of delay is dismissed. As a consequence thereof, the appeal is dismissed as not maintainable, being barred by limitation. No order as to costs.
14. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.
(U.S. TOLIA) (JUSTICE D.S. TRIPATHI)
Member-II President
K