State Consumer Disputes Redressal Commission
Oic Ltd. & Anr. vs Sunil Kumar & Smt. Dwarku Devi on 14 July, 2009
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. Appeal No. 292/2008. Date of Decision 14.07.2009. In the matter of: 1. Oriental Insurance Co. through Sr. Divisional Manager, Mythe Estate, Kaithu, Shimla 171 003., 2. Oriental Insurance Co. The Mall, Solan, through Sr. Divisional Manager, Mythe Estate, Kaithu, Shimla 171 003. Appellants. Versus Sh. Sunil Kumar S/o Sh. Dhani Ram R/o Basndli, PO Dablu, Tehsil & Distt. Shimla, HP. Respondent. Appeal No. 371/2008. 1. Oriental Insurance Co. through Sr. Divisional Manager, Mythe Estate, Kaithu, Shimla 171 003., 2. Oriental Insurance Co. The Mall, Solan, through Sr. Divisional Manager, Mythe Estate, Kaithu, Shimla 171 003. Appellants. Versus Smt. Dwarku Devi W/o Sh Dhani Ram R/o Bandli, PO Dablu, Tehsil & Distt. Shimla, HP. Respondent. Honble Mr. Justice Arun Kumar Goel (Retd.), President. Honble Mrs. Saroj Sharma, Member.
Honble Mr. Chander Shekher Sharma, Member.
Whether approved for reporting? Yes.
For the Appellants: Mr. Deepak Bhasin, Advocate in both the appeals.
For the Respondent: Mr. Peeyush Verma, Advocate in both the appeals.
O R D E R Justice Arun Kumar Goel (Retd.), President (Oral).
Since identical questions are involved for determination in both these appeals so far issue of condonation of delay is concerned, as such both these applications were taken up together for hearing and are being disposed of by this common order.
2. As per averments made in MA No. 741/2009 in Appeal No. 292/2008 it is barred by 1 year and 88 days, whereas Appeal No. 371/2008 is barred by 1 year and 5 months as per averments made in MA No. 861/2008 filed in this appeal for condoning the delay. Except period of delay averments made in application for condonation of delay in both the appeals are verbatim the same.
3. For ready reference contents of the application for condonation of delay are extracted hereinbelow:-
Application under section 5 of the Limitation Act for condonation of delay in filing the appeal.
MAY IT PLEASE YOUR LORDSHIPS:
1. That the applicant Insurance Company has filed an appeal against the order passed in complaint No. 294/2005 decided on 19.6.2007 by the Ld. Consumer Disputes Redressal Forum Shimla and the same is pending adjudication before this Honble Court.
2. That after passing of the award the certified copies was made available to the counsel representing the Appellant only on 16.7.2007. The said copy was immediately sent to the office of Divisional Manager, Oriental Insurance Co. Shimla along with opinion vide his letter dated 8th August 2007. Since the Shimla Division is not competent to file the appeals it recommended the matter to the Regional Office which is at Ambala for its approval.
In the meantime another matter being complaint No. 295/2005 arising out of the same accident was decided and the matter was being dealt with together. Since there were other MACT cases pending arising out of the same accident, the impugned judgment and the complete file got mixed up with the MACT case file and escaped the attention of the dealing official. It is only recently the said file was found it came to the notice that no further action has been taken. Under the said process there occurred some delay.
3. That the delay in filing the appeal is not wilful at all but due to the aforesaid compelling circumstances which is unintentional and beyond the control of the applicant.
It is, therefore respectfully prayed that this application may kindly be allowed and the delay of one year and eighty eight days may kindly be condoned in the interest of justice, equity and fair play in accordance with law.
Shimla Dated 3.11.2008 Through Counsel For Oriental Insurance Company Ltd.
Applicant Sd/-
Deepak Bhasin) Advocate
4. While arguing the applications for condonation of delay in both the appeals, Mr. Bhasin learned counsel for the appellants urged that sufficient cause is made out from the averments made in the application. Further according to him delay in filing the appeal was neither wilful nor intentional. Thus he prayed for condoning the delay and allowing these applications. All these pleas were seriously contested by Mr. Verma, learned counsel for the respondents in both these appeals. Per him assuming everything as alleged in the applications to be correct for the sake of argument without conceding, no cause is made out for condoning the delay what to talk of sufficient cause. He also urged that even while taking a very liberal view of the provisions governing condonation of delay, still the applications are liable to be dismissed and consequently appeals need to be consigned to records as time barred.
5. Before dealing with the respective submissions urged on behalf of the parties on the condonation of delay, we would like to mention that the approach of the courts does not have to be too technical and or pedantic. At the same time it has to be justice oriented, with a view to ensure that controversy is set at rest once and for all, instead of throwing out a case on a technical plea like that of limitation. Besides this, courts are respected for doing justice between the parties and not for throwing out cases on technical pleas like that of limitation.
6. We are also aware that a litigant does not stand to gain anything by filing a time barred lis, in the event of delay being not condoned his case is going to be thrown out. And when grant of substantial justice is pitted against a technical plea, the latter would give way to the former.
Courts also do not have to insist on explaining each days delay. Only thing that is required of a party asking for the condonation of delay is, that it should spell out sufficient material/facts so as to enable the court to take a pragmatic, reasonable as well as dispassionate view on the question of limitation. These are some of the broad outlines laid down by the Honble Supreme Court, which according to us have not been whittled down till date.
7. On the basis of the above broad outlines, we shall now examine both applications and decide whether sufficient cause for condonation of delay is made out or not. Impugned order in Appeal No. 292/2008 was passed on 19.6.2007 and in Appeal No. 371/2008, it was passed on 4.7.2007. Copies of both these orders were delivered on 16.7.2007 is admitted on behalf of the appellants.
8. Appeal No. 292/2008 was presented on 4.11.2008 and Appeal No. 371/2008 was presented on 16.12.2008. From the date of delivery of the impugned order, last date for filing both the appeals was 15.8.2008. This being a National Holiday, appeals should have been filed on 16.8.2008.
9. Reason given for not filing the appeals within the prescribed period of limitation is, that the Divisional Office being not competent to file appeals, recommended the matter to the Regional Office at Ambala for its approval. Another complaint arising out of the same accident was decided and the matter was being dealt with together. There were also MACT cases which were pending having arisen out of the same accident, the copies of judgments of both the appeals got mixed up with the MACT file and escaped attention of the dealing official.
10. What is further mentioned is very revealing as well as vague, that it was only recently that the said file was found and it came to notice that no further action was taken up in this process, so there occurred some delay. The delay in filing of the appeal was not wilful, but due to aforesaid compelling circumstances, thus unintentional and beyond the control of the appellants.
(Emphasis supplied)
11. There is no material produced from its contemporaneous official record by the appellants to prima facie support what is alleged in the applications. When the file/copies of impugned orders in both the cases out of which these appeals have arisen were traced, there is not a word said in the applications.
Thereafter how the matter was dealt with by the appellants is again kept delightfully vague by them. Narration of all these facts would have strengthened the hands of this Commission to have considered the applications appropriately.
12. In these circumstances, we are of the confirmed view that appellants appear to be only interested in filing the appeals without spelling out sufficient facts on the basis of which condonation of delay could have been asked for. None of the above referred parameters which are material for considering an application for condonation of delay are met with by the appellants. Record is admittedly with them from which the facts could be spelt out, and should have been set out in the applications enabling us to favorably consider the prayer for condonation of delay.
13. We have no hesitation in observing that brevity is the beauty of this application without any foundation having been on facts, even for taking a very liberal view of the provisions for the condonation of delay.
14. Faced with this situation, Mr. Bhasin learned counsel for the appellants tried to catch the last straw, when he argued that in the event of condonation of delay, all that his clients would get is, that their appeals would be heard on merits and nothing more. Thus according to him on this ground delay in filing these appeals needs to be condoned. While making this submission, learned counsel forgot, that once an appeal was time barred, a right accrues in favour of the opposite party, as such unless sufficient cause on the above extracted broad principles is made out, condonation application cannot be allowed.
15. In the facts and circumstances of the case, we are satisfied that appellants have miserably failed to establish any cause, muchless sufficient cause or even semblance on facts constituting sufficient cause.
This position is manifestly clear from the averments extracted from the application for condonation of delay hereinabove. That being the position, we are of the view that the application does not spell out anything so as to enable us to favourably consider the prayer of Mr. Bhasin to condone the delay in both the appeals.
16. While rejecting both the applications reliance is also being placed on the decision of National Commission in Mohite Ornament House Vs. Harish Misra, 1(2009) CPJ 222 (NC) and Agra Development Authority Vs. Om Prakash Gautam, 1 (2009) CPJ 223 (NC).
17. No other point is urged.
In view of the aforesaid discussion we are of the view that both the applications for condonation of delay in these appeals do not make out any cause, muchless sufficient cause for condoning the delay, as such both these applications are dismissed.
As a result of it, Appeal No. 292/2008 and Appeal No. 371/2008, both are ordered to be consigned to records being time barred.
All interim orders passed from time to time in these appeals shall stand vacated forthwith.
Office is directed to place authenticated copy of this order on the file of Appeal No. 371/2008.
Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.
Shimla, July 14, 2009. ( Justice Arun Kumar Goel ) (Retd.) President (Saroj Sharma) Member.
( Chander Shekher Sharma ) /Karan/ Member.