State Consumer Disputes Redressal Commission
Hdfc Egro General Insurance Co. Ltd. vs Balwinder Singh And Another on 18 August, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Revision Petition No.35 of 2022
Date of institution : 12.05.2022
Date of decision : 18.08.2022
HDFC ERGO General Insurance Co. Ltd. Stellars I.T. Park, Tower-1, 5th
Floor, C-25, Sector 62, Noida, through its Managing Director.
....Petitioner/Opposite Party No.1
Versus
1.Balwinder Singh son of Sh. R.S. Verma, House No.662, Sector 43- A, Chandigarh.
.... Respondent No.1/Complainant
2. Max Super Speciality Hospital Mohali near Civil Hospital, Phase VI, Mohali, through its Director.
.... Respondent No.2/Opposite Party No.2 Revision Petition under Section 47(1)(b) of the Consumer Protection Act, 2019 against the order dated 22.02.2021 passed by the District Consumer Disputes Redressal Commission, S.A.S. Nagar (Mohali).
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the petitioner : Sh. Nitesh Singhi, Advocate For respondent No.1 : Sh. R.K. Syal, Advocate Revision Petition No.35 of 2022 2 JUSTICE DAYA CHAUDHARY, PRESIDENT Miscellaneous Application No.676 of 2022 (Delay):
This application has been filed by the petitioner for condonation of delay of 353 days in filing the Revision Petition alongwith supporting affidavit.
2. It has been mentioned in the application that the petitioner/OP No.1 did not appear in the case before the District Commission as OP No.1 never got any information with regard to proceedings of the case from his counsel as he was having some health issues in his family. It has also been mentioned that Courts were not working due to pandemic Covid-19 at that time. Only on checking/verifying by the Legal Department of the petitioner from the official website of the Commission, it was found that the petitioner/OP No.1 had been proceeded exparte due to non-
appearance. It has further been mentioned that on a number of occasions efforts were made to contact the counsel but there was no response. The petitioner came to know only in the last week of August 2021 and had also tendered his unconditional apology for non-appearance on 22.02.2021. Further it has been mentioned that absence was not willful and intentional but was bonafide. Due to absence of the party or counsel the actual and correct facts of the case could not be brought on record and opportunity be granted to the petitioner/OP No.1 for filing written statement and also to place on record certain documents and no prejudice would be caused. Learned counsel submits that the delay occurred in filing of the revision Revision Petition No.35 of 2022 3 petition was also covered under the orders passed by the Hon'ble Apex Court in Suo Motu Writ Petition (c) No.3 of 2020 whereby period of limitation was extended in all the cases pending/filed during that period.
3. By considering the submissions and the averments made in the application for condonation of delay and also the directions issued by the Hon'ble Supreme Court in Suo Motu Writ Petition (Civil) No.3 of 2020, decided on 10.01.2022 and the Order bearing No.07 of 2022 dated 14.01.2022 issued by Hon'ble National Consumer Disputes Redressal Commission New Delhi, the delay of 353 days in filing the revision petition is hereby condoned. Accordingly said M.A. is allowed. Main case:
4. The present revision petition has been filed by the petitioner/OP- HDFC ERGO General Insurance Corporation Limited under Section 47(1)(b) of the Consumer Protection Act, 2019 (in short the "Act") for setting aside the impugned order dated 22.02.2021 passed by the District Consumer Disputes Redressal Commission, S.A.S. Nagar (Mohali) (in short, "the District Commission") whereby the petitioner/OP No.1 was proceeded exparte.
5. Sh. Nitesh Singhi, Advocate learned counsel representing the petitioner submits that the notice was issued to OP No.1 vide which it was directed to appear before the District Commission and to submit the written statement as well as documents in its support. The petitioner/OP No.1 requested his counsel Sh. Vaibhav Goel to appear before the District Commission in response to notice but counsel did not appear and inspite Revision Petition No.35 of 2022 4 of contacting the counsel on a number of occasions, no information was received. Learned counsel also submits that thereafter OP No.1 contacted another counsel namely Sh. Lovedeep Sareen Advocate to look into the matter and to verify the status of the case. Thereafter, it was found that the petitioner/OP No.1 had already been proceeded exparte vide order dated 22.02.2021 due to non-appearance of counsel for the petitioner/OP No.1. Learned counsel further submits that the petitioner came to know about the exparte order in the last week of August 2021 and tendered his unconditional apology for non-appearance on 22.02.2021 stating that the non-appearance was not willful and the same was bonafide and party/litigant should not suffer due to mistake of his counsel and technicality should not come on the way for getting justice. Learned counsel also submits that non-appearance of the petitioner/OP No.1 was not intentional but it was beyond the control of the petitioner. In case the exparte order is not set aside the petitioner/OP No.1 would suffer irreparable loss and technicalities should not come on the way of imparting justice. Learned counsel also submits that an opportunity be granted to OP No.1 for hearing and representing its case. Learned counsel further submits that the order of exparte was passed during period of Covid-19 and the impugned order has been passed without any application of mind and against the principle of natural justice. The petitioner/OP No.1 be granted reasonable opportunity to contest the case and same be decided by considering the facts and circumstances of the case as well as on merits. Learned counsel also submits that no prejudice Revision Petition No.35 of 2022 5 is going to be caused to respondent No.1/complainant and petitioner is ready to compensate him.
6. Mr. R.K. Syal, Advocate learned counsel representing respondent No.1/complainant has opposed the submissions made by learned counsel for the petitioner. He further submits that even the revision petitioner has been filed after a long delay and more time was consumed after issuing notice and no proper explanation has come forward. The impugned order is self-speaking and no interference is required therein.
7. Heard the arguments of learned counsel for both the parties, I have also perused the impugned order and other documents available on the file.
8. Facts relating to filing of complaint by the complainant thereafter issuing of notice to OP No.1 and also passing of impugned order of exparte and non-appearance of OP No.1 are not disputed.
9. It is a settled proposition of law that party should not suffer because of fault of the counsel as has been held by the Hon'ble Supreme Court in judgments of cases "Rafiq & Another vs. Munshilal & Another"
AIR 1981 SC 140 and "Smt. Lachi & others vs. Director of Land Records & Others" AIR 1984 SC 41. The Hon'ble Supreme Court in above cases observed as under:
"What is the fault of the party who having done everything in his power expected of him, would suffer because of the default of his advocate.... The problem that agitates us is whether it is proper that a party should suffer for the Revision Petition No.35 of 2022 6 inaction, deliberate omission, or misdemeanour of his agent.... We cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted."
The Hon'ble Supreme in judgment of case "Salil Dutta v. T.M. & Mc (P) Ltd." [1993] 1 SCR 794, has held as under:
"It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult."
10. The Hon'ble Supreme Court in judgment of case "N. Mohan Vs. R. Madhu", Civil Appeal No.8898 of 2019, decided on 21.11.2019 held as under:-
13. Considering the scope of Order IX Rule 13 CPC and the statutory right to appeal under Section 96(2) CPC, after referring to Bhanu Kumar Jain, in Bhivchandra Shankar More, this Court held as under:- "11. It is to be pointed out that the scope of Order 9 Rule 13 CPC and Section 96(2) CPC are entirely different. In an application filed under Order 9 Rule 13 CPC, the Court has to see whether the summons were duly served or not or whether the defendant was prevented by any "sufficient cause" from appearing when the suit was called for hearing. If the Court is satisfied that the defendant was not duly served or that he was prevented for "sufficient cause", the court may set aside the ex parte decree and restore the suit to its original position. In terms of Section 96(2) CPC, the appeal lies from an original decree passed ex parte. In the regular appeal filed under Section 96(2) CPC, the appellate court has wide jurisdiction to go into the merits of the decree. The scope of enquiry under two provisions is entirely different. Merely because the defendant pursued the remedy under Order 9 Rule 13 CPC, it does not prohibit the defendant from filing the appeal if his application under Order 9 Rule 13 Revision Petition No.35 of 2022 7 CPC is dismissed." 12. The right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground that the application filed by him under Order IX Rule 13 CPC has been dismissed. In Bhanu Kumar Jain v. Archana Kumar and Another (2005) 1 SCC 787, the Supreme Court considered the question whether the first appeal was maintainable despite the fact that an application under Order IX Rule 13 CPC was filed and dismissed. Observing that the right of appeal is a statutory right and that the litigant cannot be deprived of such right, in paras (36) and (38), it was held as under:- 36. ... A right to question the correctness of the decree in a first appeal is a statutory right. Such a right shall not be curtailed nor 9 shall any embargo be fixed thereupon unless the statute expressly or by necessary implication says so. (See Deepal Girishbhai Soni v.
United India Insurance Co. Ltd. (2004) 5 SCC 385 and Chandravathi P.K. v. C.K. Saji (2004) 3 SCC 734.) .............."
11. The Order 9 Rule 7 of the Code of Civil Procedure (CPC) is also relevant in the present context which provides jurisdiction to the Court to set aside ex parte order by imposing costs, is reproduced as under:
"7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.--
Where the Court has adjourned the hearing of the suit, ex parte, and the defendant, at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance."
12. To attract the provisions of Order 9 Rule 7 of CPC, the petitioner is required to show not only bonafide reason for its failure to appear in the Court on the date fixed but also to show as to what injustice has been caused to it.
13. While relying upon judgment of the Hon'ble Supreme Court "Sangram Singh v. Election Tribunal Kotah & Anr." AIR 1955 Revision Petition No.35 of 2022 8 Supreme Court 425, the Hon'ble Punjab and Haryana High Court in a case titled as "Smt. Sahib Kaur Vs. Sukhbir Singh & others" Civil Revision No.1700 of 2004, decided on 25.05.2016 (Punjab & Haryana High Court) held in para 8 as follows:-
"8. In the circumstances, even if the ex parte order was not set aside, the petitioner ought to have at least been allowed to join the proceedings at the stage at which they were. In any case, in the peculiar facts and circumstances of the case and particularly the fact that the learned trial Court considered the delay in filing the application seeking setting aside the ex parte proceedings to be belated, it is considered just and expedient that the ex parte order should be set aside so as to enable the petitioner to file her written statement and contest the suit of the plaintiff on merits."
14. The Hon'ble Supreme Court of India in judgment of case "G.P. Srivastava Vs. Shri R.K. Raizada & others" Special Leave Petition (Civil)17942-43 of 1999, decided on 03.03.2000 has held as under:-
"Even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex-parte decree set aside on such other terms and conditions as were deemed proper by the Trial Court. On account of the unrealistic and technical approach adopted by the courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the appellant- defendant is allowed opportunity to prove his case within a reasonable time. Under the circumstances, the appeal is allowed by setting aside the order of the High Court and of the Trial Court. The ex- parte Judgment and decree passed against the appellant is set aside on payment of costs of Rs.5,000/- to the other side. The Trial Court is directed to afford the appellant opportunity to prove his case and expedite the disposal of the suit preferably within a period of six months from the date of receipt of the copy of this order."
15. In view ratio of law laid down by the Hon'ble Supreme Court in above noted judgments and also in the interest of justice and by Revision Petition No.35 of 2022 9 considering the facts of the case, the petitioner/OP No.1 deserves to be granted one opportunity to contest the case subject to payment of cost. Moreover no prejudice would be caused to respondent No.1/complainant in case the petitioners are allowed to join the proceedings and to file the written statement alongwith documents/evidence before the District Commission.
16. In view of above detailed discussion, I deem it appropriate to remand the case with a direction to the District Commission to allow the petitioner/OP No.1 to contest the case by giving them an opportunity to file written reply, affidavit and documents. Accordingly, the Revision Petition is allowed and the order dated 22.02.2021 passed by the District Commission is set aside subject to costs of Rs.10,000/-. Out of which, the amount of Rs.5000/- is payable to respondent No.1/complainant. The petitioner/OP No.1 is directed to deposit the remaining amount of Rs.5000/- in the Consumer Legal Aid Account of this Commission. The District Commission is directed to allow the petitioner/OP No.1 to file written statements alongwith documents/evidence and also to the complainant to file replication and documents, if any, in support of their contentions. I remand the case to the District Commission for deciding the same on merits after giving opportunity to OP No.1 to contest the case, as referred above. Revision Petition No.35 of 2022 10
17. The parties are directed to appear before the District Commission on 12.09.2022. The copy of this order be also sent to the parties as well as to the District Commission. The main case is decided as such the pending application(s), if any, is disposed of accordingly.
(JUSTICE DAYA CHAUDHARY) PRESIDENT August 18, 2022.
(MM)