State Consumer Disputes Redressal Commission
Bharati Axa General Insurance Company ... vs Radha Roadways on 2 December, 2014
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Miscellaneous Application No.MA/14/41 a/w. First
Appeal No. FA/14/87
(Arisen out of Order Dated 03/09/2013 in
Complaint Case No. CC/12/130 of District Additional DCF, Thane)
1. BHARATI AXA
GENERAL INSURANCE COMPANY LIMITED.
7TH AND 8TH FLOOR, TIMES SQUARE BUILDING, NEAR SAI SERVICE,
WESTERN EXPRESS HIGHWAY,
ANDHERI EAST, MUMBAI
400069
MUMBAI
MAHARASHTRA
...........Appellant(s)
Versus
1. RADHA ROADWAYS
C-3077/78, 3RD FLOOR,
BIMA COMPLEX, PLOT NO. 119, KALAMBOLI,
NAVI MUMBAI 410218
NAVI MUMBAI
MAHARASHTRA
...........Respondent(s)
BEFORE:
HON'BLE MRS. Usha S.
Thakare PRESIDING MEMBER
For the Appellant:
Mr.Nikhil Mehta,
Advocate for the applicant/appellant.
For the Respondent:
Mr.Ganesh Shirke,
Advocate for the non-applicant/respondent.
ORDER
Per Mrs.Usha S. Thakare, Honble Presiding Judicial Member Being aggrieved by the judgment dated 03/09/2013 passed by Learned Addl. District Forum, Thane in consumer complaint No.130/2012, applicant/org. opponent has preferred the appeal. However, there is delay of 91 days to prefer the appeal. Hence, applicant/appellant has filed an application for condonation of delay.
2. According to the applicant/appellant, applicant/appellant was constantly following up with the Advocate for the applicant/appellant-opponent practicing in the Trial Court for update of consumer complaint from time to time. Concerned Advocate for the applicant/appellant after much follow-up informed the applicant/appellant only on 03/01/2014 that the impugned judgment had been passed against the applicant/appellant. The order dated 03/09/2013 was delivered to the applicant/appellant by email on 03/01/2014. At that time, applicant/appellant queried the said Advocate as to why said order copy could not be delivered to the applicant/appellant immediately on receipt, when the order passed in consumer complaint on 03/09/2013. Applicant/appellant was totally taken by surprise of such a lapse committed by the Advocate practicing for the applicant/appellant in the Trial Court. Concerned Advocate thereafter informed the applicant/appellant that she was in regular touch with representatives of the Trial Court. Advocate informed that copy was not ready and had not been dispatched to the applicant/appellant-Insurer. Advocate was not in a position to have communicated the details of the impugned judgment for want of copy. Further, concerned Advocate informed to the applicant/appellant that copy of judgment could be directly sent by the Court to the party concerned. Applicant/appellant was in constant touch with his Vashi Office. Vashi Office confirmed that said office had not at all received the impugned judgment. Applicant/appellant thereafter sent email dated 06/01/2014 to the Advocate for the applicant/appellant practicing in the Trial Court and recorded aforesaid facts. Concerned Advocate then sent reply to the said email on 06/01/2014 itself and clarified that on checking the record available with the District Forum, it had been found by her that as per registry, impugned judgment was posted on 19/11/2013 to the Vashi Office of the applicant/appellant and that in the instant case, an affidavit of the officer will have to be filed by submitting that the applicant/appellant had not received the impugned judgment accordingly. Advocate also informed that the application for condonation of delay would have to be filed. It was informed that it was a fit case for appeal as the Trial Court has failed to consider policy terms and conditions.
3. On 07/01/2014 applicant/appellant immediately sent email to the Advocate for applicant/appellant practicing in the Trial Court and confirmed that applicant/appellant had not received copy of the order. It was requested that an application be filed in the Court to have obtained the same. Request was made to the concerned Advocate to draft the delay condonation application and steps be taken for filing appeal. On 07/01/2014 another email was sent by Advocate practicing in the Trial Court that now she had received certified copy of the impugned judgment. Thereafter, certified copy of the order was made available to the applicant/appellant-Insurer. Applicant/appellant, therefore, cannot be blamed for the time period upto 07/01/2014, since it was Advocate for the applicant/appellant practicing in the Trial Court who did not apprise the applicant/appellant of the impugned judgment in spite of constant follow-up.
4. It is further submitted that the applicant/appellant thereafter referred the matter to its management, who directed that appeal be filed in the matter and that Mr.Nikhil Mehta, Advocate be appointed to file appeal for and on behalf of the applicant/appellant. Advocate for the applicant/appellant found that documents to enable filing of the appeal were incomplete and that the complete set of documents be procured from the Advocate for the applicant/appellant practicing in the Trial Court for filing first appeal. However, Advocate for the applicant/appellant practicing in the Trial Court did not have proper documents with exhibits and applicant/appellant was compelled to reconstruct the file from their own record. Copy of reconstructed file was received by Advocate practicing before this Commission on 20/01/2014. However, copies were not legible. Having understood the exigency of delay occurred, Advocate Mr.Nikhil Mehta drafted and sent the appeal immediately for approval of the applicant/appellant on 29/01/2014 with a request that legible set of written version with all exhibits will be required for filing first appeal. Appeal was approved with few changes. First appeal was filed on 04/02/2014. Delay is therefore, neither intentional nor deliberate. Applicant/appellant has a very good case on merit and public funds are involved. Therefore, delay of 91 days may be condoned in the interest of justice.
5. Non-applicant/respondent-org. complainant opposed the application by filing written say. It is submitted that email dated 14/09/2013 filed on record by the applicant/appellant clearly shows that Advocate on record informed the applicant/appellant that the order will be sent directly to you (applicant/appellant). This clearly shows that Advocate on record in time had informed about status of order. Furthermore, the impugned judgment dated 03/09/2013 annexed to the appeal memo is the first copy of the order supplied free of costs. Thus, the story made by the applicant/appellant for condonation of delay of 91 days is totally concocted without any substance. Applicant/appellant failed to make out sufficient reasons. Reasons stated in the application are purely imaginary as well as administrative in nature. The entire story narrated in the application shows shrinking of responsibilities. The administrative delay cannot be said to be sufficient ground for condonation of delay. Hence, application may be rejected with costs.
6. Heard Learned Counsel Mr.Nikhil Mehta for the applicant/appellant and Learned Counsel Mr.Ganesh Shirke for non-applicant/respondent.
7. Admittedly, consumer complaint bearing No.130/2012 filed by the non-applicant/respondent was decided on 03/09/2013. As per provisions of Consumer Protection Act, 1986, free copy was sent to both parties directly by the Registrar of Learned District Forum. Applicant/appellant has filed appeal on the basis of copy sent by the District Forum directly to the applicant/appellant. Copy of the judgment shows that free copy was sent to the opponent-applicant/appellant on 05/09/2013 by Outward No.624/2013 and it bears stamp of true copy and signature of Registrar of Addl. District Forum, Thane. Therefore, allegation made by the applicant/appellant that free copy was not received by office of the applicant/appellant in spite of follow-up appeared to be baseless.
8. The appeal is filed by the applicant/appellant on the basis of true free copy issued by the Registrar of Addl. District Forum, Thane. Copy of order must be issued to the applicant/appellant on the address mentioned in the consumer complaint. Office of applicant/appellant i.e. Bharti Axa General Insurance Co. Ltd. is situated at Persipolis, 101 & 116, Sector-17, Opp. Vardhaman Market, Vashi, Navi Mumbai. Addl. District Forum, Thane is also situated at C.B.D. Belapur, Navi Mumbai. Copy was sent to the opponent-applicant/appellant on 05/09/2013 vide Outward No.624/2013. It might have reached to the office of Bharti Axa General Insurance Co. Ltd. within a week. Therefore, allegation of the applicant/appellant that copy of order was not reached to its office cannot be accepted. Nothing is on record to show that the applicant/appellant through Advocate had applied for certified copy of the order. It is strange to say that order dated 03/09/2013 was delivered to the applicant/appellant by email on 03/01/2014. Applicant/appellant tried to say that free true copy was never received by the applicant/appellant, but it is not made clear how said appeal was filed on the basis of said true copy. Learned Counsel practicing at Trial Court for the applicant had already informed to the applicant/appellant by email dated 14/09/2013 that the order will be sent directly to the applicant/appellant. It means that Advocate on record practicing in the Trial Court had in time informed about status of the complaint to the applicant/appellant.
9. Applicant/appellant made allegations against Learned Counsel for the applicant/appellant practicing in the Trial Court and attempt was made to prove lapses on the part of Advocate practicing for the applicant/appellant in the Trial Court. Although allegations are made against the Learned Counsel who represented the applicant/appellant in the Trial Court, no action was taken against the so called defaulting lawyer by the applicant/appellant. No grievance was raised against the concerned lawyer by filing complaint before the Bar Council. It appears that after passing the order by the Learned District Forum, information was given to the applicant/appellant by the concerned Advocate. As per applicant/appellant, they got knowledge of the order on 07/01/2014 and thereafter, certified copy was obtained. Certified copy does not find place on record and in spite of receipt of certified copy, appeal was filed on 04/02/2014. Applicant/appellant is a big Insurance Company; certainly, it must be having latest facilities like email, fax, telephone, etc. The Insurance Company must have Legal Cell in its office. In spite of all these facilities, applicant/appellant took much time to process the appeal. The entire story narrated in the application cannot be accepted. There is inordinate delay in filing appeal.
10. Honble Apex Court in the case of Anshul Aggrawal V/s. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) held 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 order of the Consumer Fora.
It is also observed by Honble Apex Court in the case of Office of the Chief Post Master General V/s. Living Media India Ltd., AIR 1996 SC 2173 = (2012) 3 SCC-563 that -
After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under -
It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
It is also observed in this judgment -
In our view, it is the right time to inform all the Government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The Government departments are under a special obligation to ensure that they perform their dues with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
11. The application filed by the applicant/appellant for condonation of delay is vague. Free certified copy of the order is on record, but attempt was made to show that free copy was not made available by the Advocate practicing in the Trial Court for the applicant/appellant. Applicant/appellant has not come with clean hands before this Commission for condonation of delay. Application does not disclose any sufficient cause. If the applicant/appellant has exercised due diligence, delay in filing appeal could be avoided. Condonation of delay is an exception and should not be used as an anticipated benefit for the Insurance Company or Government Undertaking. While exercising discretionary power, diligence of the party or its bonafide may call for consideration. Applicant/appellant failed to make out a case that it had taken all possible steps within its power and control and approach without unnecessary delay for filing appeal. As a result, application for condonation of delay deserves to be dismissed. With this view, following order will meet ends of justice :-
-: ORDER :-
1.
Application for condonation of delay is rejected. Consequently, appeal does not survive for consideration.
2. Parties to bear their own costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 2nd December 2014.
[HON'BLE MRS. Usha S. Thakare] PRESIDING MEMBER dd.