State Consumer Disputes Redressal Commission
Parmod Sood vs The General Manager, Bharti Axa General ... on 13 April, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH First Appeal No. 53 of 2015 Date of Institution 27.02.2015 Date of Decision 13.04.2015 Parmod Sood s/o Sh.V.P.Sood, Carrying on business in its name and style of M/s P.K.Construction Company, Resident of Paras Dass Garden, Near CPRI, Shimla - 171001, HP. .....Appellant/Complainant. Versus The General Manager, Bharti Axa General Insurance Company Ltd., 1st floor, Femsicon, Survey No.28, Doddanakundi, Village K.R.Puram, Hobil Bangalore - 37. The Chief Executive Officer (Branch Office), Bharti Axa General Company Ltd., SCO No.350-351-352, 1st floor, Chandigarh. ......Respondents/Opposite Parties. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT SH. DEV RAJ, MEMBER
MRS. PADMA PANDEY, MEMBER Argued by: Sh.Sunil K.Dixit, Advocate for the appellant.
Sh.Gaurav Bhardwaj, Advocate for respondent No.2. Service of respondent No.1 already dispensed with vide order dated 02.03.2015. PER PADMA PANDEY, MEMBER
This appeal is directed against the order dated 30.01.2015, rendered by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, while dismissing the application for condonation of delay, also dismissed the complaint, being barred by limitation.
2. The facts, in brief, are that the complainant purchased a machine "Ex-200 Excavator" for more than Rs.41 lacs (Annexure C-1) for the purpose of construction work. The complainant is a Contractor and he entered into a contract between the Defence Authorities for the purpose of road construction work at Bhaironghati - Nelong Road NH-108, District Uttarakashi (Uttarakhand). It was stated that the complainant got insured the said Excavator Machine from Opposite Party No.2 vide Policy (Annexure C-2). Thereafter, the complainant got renewed the Insurance Policy from 18.09.2010 to 17.09.2011 (Annexure C-3). It was further stated that on 06.04.2011 the machine of the complainant was damaged during the road construction work at Bhaironghati - Nelong road NH 108, when stone rolled down on it. It was further stated that the complainant immediately informed about the accident to Opposite Party No.2 vide email dated 06.04.2011 (Annexure C-4) but he did not receive any information from them (Opposite Parties). As such, the complainant got repaired the machine from different experts and different agencies by spending an amount of Rs.10,37,690/-. The repair bills of the same were also submitted in the office of the Insurance Company . It was further stated that after repeated requests of the complainant, the Company deputed a Surveyor, who visited the spot and prepared a hypothetical survey report, which was not commensurate to the actual loss. It was further stated that the report of the Surveyor is totally wrong, false and not tenable in the eyes of law. Ultimately, the complainant sent a legal notice dated 04.08.2011 (Annexure C-5) to the Insurance Company but to no avail. It was further stated that the Opposite Parties were deficient, in rendering service, as also indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the "Act" only), was filed.
Notice of the complaint was issued to the Opposite Parties, but Opposite Party No.1, did not appear, despite service. Hence, it (Opposite Party No.1), was proceeded against exparte on 29.08.2014.
In the meanwhile, before filing the written statement, by Opposite Party No.2, the complainant moved an application under Section 24-A of the Consumer Protection Act, 1986 for condonation of delay of 458 days in filing the complaint, before the District Forum, Chandigarh, which was duly replied to by him (Opposite Party No.2) on 16.01.2015.
The complainant led evidence, in support of his case.
6. After hearing the Counsel for the complainant, Opposite Party No.2 and, on going through the record of the case, the District Forum, while dismissing the application for condonation of delay, also dismissed the complaint being barred by limitation.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
8. We have heard the Counsel for the appellant/complainant, respondent No.2 and have gone through the record of the case, carefully.
9. The Counsel for the appellant/complainant submitted that the complaint was filed before the District Forum, Chandigarh, after arranging the necessary documents. He further submitted that the District Forum did not consider that the Consumer Protection Act is a beneficial legislation and meant to protect the rights of the consumers and the delay could be condoned, after imposing some costs. He further submitted that the appellant could not be made to suffer due to hypertechnicalities. He further submitted that the complainant was prosecuting the complaint, before the District Consumer Forum, Shimla in good faith and under the bonafide belief that it was having territorial jurisdiction. He further submitted that delay of 458 days, thus, occurred on account of the aforesaid reason. He prayed for setting aside the impugned order and directing the District Forum to decide the complaint on merits.
10. The Counsel for respondent No.2/Opposite Party No.2 submitted that the appeal filed by the complainant was liable to be dismissed, on the ground, that the District Forum, Shimla did not give the liberty to file the complaint before the appropriate District Forum, if the same was barred by limitation. He further submitted that the complaint was returned on the ground that the District Forum, Shimla had no jurisdiction and it was for the complainant to file the complaint within the prescribed period of limitation before the proper Forum. He further submitted that the said delay was due to the negligence of the complainant or his previous Counsel, as it was filed before the Forum, which was not having the territorial jurisdiction. He further submitted that originally the complaint was filed before the District Forum, Shimla, by the complainant, knowing fully well that it had no territorial jurisdiction. He further submitted that the complaint was not being prosecuted before the District Forum, Shimla, in good faith and under bonafide belief that it has territorial jurisdiction, especially when the Opposite Parties took objection in the written statement, at the earliest that it had no jurisdiction. He prayed for dismissal of the appeal and upholding the impugned order.
11. After giving our thoughtful consideration, to the submissions, raised by the Counsel for the appellant/complainant, respondent No.2/Opposite Party No.2, and the record, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter.
12. Admittedly, the complainant purchased Ex-200 Excavator machine for a sum of Rs.41,00,000.16 vide invoice dated 31.08.2009 (Annexure C-1 of District Forum file). It is also the admitted fact that the complainant is a contractor and he put his machinery in operation alongwith his manpower for the purpose of road construction work at Bhaironghati in Uttarakhand. It is also the admitted fact that the said machine was got insured from Opposite Party No.2 vide Policy No.PEP/10097722/91/09/D19113 at Chandigarh for the period from 18.09.2009 to 17.09.2010 (at page No.15 of District Forum file). It is also the admitted fact that the said Policy expired on 17.09.2010 and consequently, the complainant got renewed the said Policy from Chandigarh for the period from 18.09.2010 to 17.09.2011 (at page No.20 of District Forum file). On 06.04.2011 the said machine was damaged during the road construction work, when stone rolled down on it and the complainant immediately informed about the said accident to Opposite Party No.2, vide email (Annexure C-4 of District Forum file). It is also the admitted fact that when the claim was not paid by the Insurance Company, the complainant filed the complaint before the District Consumer Disputes Redressal Forum, Shimla on 25.11.2011. The said Forum vide order dated 22.04.2014, returned the complaint to the complainant with a direction to present it before the appropriate Forum having jurisdiction. Thereafter, the complainant filed the complaint before the District Forum, UT, Chandigarh on 08.07.2014. The said Forum while dismissing the application for condonation of delay of 458 days in filing the complaint, also dismissed the same (complaint) vide order dated 30.01.2015 being barred by limitation.
13. The core question, that falls for consideration, is, as to whether, the complainant was prosecuting the complaint before the District Forum, Shimla in good faith and under the bonafide belief that it had territorial jurisdiction. The answer, to this, is in the negative. No doubt, it is true that the machine of the complainant was damaged in the accident, which took place on 06.04.2011 and the matter was reported to the Insurance Company. It is also true that subsequently, Complaint No.384 of 2011 was filed by the complainant before the District Consumer Disputes Redressal Forum, Shimla on 25.11.2011 (as mentioned at page No.54 of the District Forum file) for the redressal of his grievance on account of repudiation of the claim of the damaged construction equipment. Not only this, it is evident from copy of the order dated 22.04.2014 passed by the District Forum, Shimla, that the Opposite Parties (Insurance Company) took up a preliminary objection regarding maintainability, in the written version, that the said Forum, had no territorial jurisdiction, to entertain the complaint, as the office of Opposite Party No.2 was situated at Chandigarh and damage to the machine was caused in District Uttarakashi (Uttarakhand). The District Forum, Shimla while passing the order dated 22.04.2014 held that the Opposite Parties were not having their branch office at Shimla and no part of cause of action had arisen to the complainant within the jurisdiction of the Forum at Shimla. Moreover, the Counsel for the appellant/complainant submitted that the complainant was prosecuting the complaint, before the District Consumer Forum, Shimla in good faith and under the bonafide belief that it was having territorial jurisdiction. On the other hand, Counsel for respondent No.2 submitted that the complainant, knew fully well that District Forum, Shimla had no territorial jurisdiction and, as such, the complaint was not being prosecuted before the District Forum, Shimla, in good faith and under bonafide belief that it had territorial jurisdiction, especially when the Insurance Company took up the preliminary objection that the said Forum, had no territorial jurisdiction to entertain the complaint. A bare perusal of the order dated 22.04.2014 passed by the District Forum, Shimla, reveals that the preliminary objection was taken by the Insurance Company, in the written version, filed before the District Forum, Shimla, that it lacked territorial jurisdiction. So, we are of the considered opinion that it was for the complainant to withdraw the complaint from the District Forum, Shimla, when the preliminary objection was taken by the Insurance Company, with liberty to file the same, before the appropriate Forum, but he did not do so. It is also pertinent to note that the District Forum, Shimla did not condone the period spent before it by the complainant, for computing the period of limitation for presenting his complaint before an appropriate Forum, having jurisdiction to entertain it. So, we are of the considered opinion that the complainant, knowing fully well that District Forum, Shimla had no territorial jurisdiction continued prosecuting the complaint before it. As such, the complaint was not being prosecuted before the District Forum, Shimla, in good faith and under the bonafide belief that it had territorial jurisdiction, especially when the Insurance Company took the preliminary objection that the said Forum, had no territorial jurisdiction to entertain the complaint.
14. It is also pertinent to note that after receipt of the copy of the order dated 22.04.2014 passed by the District Forum, Shimla, the complainant preferred to file the complaint before the District Forum, Chandigarh on 08.07.2014 i.e. after 46 days of the receipt of the order dated 22.04.2014. Even the District Forum, Chandigarh dismissed the application for condonation of delay of 458 days in filing the complaint, as also the consumer complaint, beyond barred by limitation.
15. In M.I. Plywood Industries Vs Canara Bank I(2013) CPJ 17(NC), the Revision Petitioner (Complainant) filed Revision Petition before the National Consumer Disputes Redressal Commission, after a delay of 145 days. In the application for condonation of delay, a plea was taken up by the Revision Petitioner that it had earlier challenged the order impugned, by way of filing Writ Petition bearing No. 29255 of 2010 before the Hon'ble Karnataka High Court, on the legal advice, so tendered by its Counsel. It was further stated that the Hon'ble High Court vide order 10.2.2011, was pleased to dispose of the Writ Petition, holding therein, that the Petitioner had an efficacious, alternative remedy under the provisions of Consumer Protection Act,1986. It was further stated that the Petitioner bonafidely trusted the legal advice, given to it, by the Counsel and pursued the Writ Petition, and that was why delay in filing the Revision Petition took place. The National Commission, in the aforesaid case, held that such a plea, taken by the Revision Petitioner for condonation of delay, was not maintainable, in view of the decision of the Hon'ble Supreme Court in M/s Advance Scientific Equipment Ltd. & anr. Vs West Bengal Pharma & Photochemical Development Corporation Ltd., 2011(DLT soft)1(SC), Appeal (Civil) Nos.17068-17069/2010, decided on 9.7.2010, wherein it was observed as under ;
"... We are further of the view that the petitioners' venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction"
16. In view of the principle of law, laid down in M/s Advance Scientific Equipment Ltd.'s case(supra) , it is held that prosecution of the complaint, by the complainant, before the District Forum, Shimla, knowing fully well that no cause of action arose, within the territorial jurisdiction of that Forum, as the Insurance Policy was issued at Chandigarh and that accident occurred in District Uttarakashi (Uttarakhand) which was beyond the jurisdiction of the said Forum, was neither in good faith nor under the bonafide belief.
17. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab & Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court, it was held as under:-
"No doubt the words "sufficient cause" should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all "sufficient cause" is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen."
18. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under:-
"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 bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence."
19. In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-
"We hold that in each and every case the Court has to examine whether delay in filing the Special 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".
20. In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-
"The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]"
21. In Bikram Dass Vs. Financial Commissioner and others, AIR 1977, S.C. 1221, it was held as under:-
"Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay"
22. The Hon'ble Supreme Court in Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) has laid down 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 orders of the Consumer Foras"
23. Recently, the National Consumer Disputes Redressal Commission, New Delhi in Regional Provident Commissioner, Guntur Vs. S. Siva Sankar Rao, Revision Petition No.1617 of 2014, decided on 01.05.2014, whereby five other similar Revision Petitions bearing No.1620 & 1645 and 1796 all of 2014, were decided, while dealing with the issue as regards condonation of delay of 61/78 days in filing the said Revision Petitions, placed reliance on Office of Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr., 2012 STPL (Web) 132 (SC), wherein the Hon'ble Apex Court held as under:-
"13. 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 duties 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. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.
Accordingly, the appeals are liable to be dismissed on the ground of delay."
24. The National Commission, in Para 8 of the order, held that "...in these cases, day to day delay was not explained. The cases are barred by limitation".
25. Further, in Paras 9 to 13, the National Commission held as under:-
9. This view neatly dovetails with the following authorities. In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), R. B. Ramlingam v. R. B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, and Bikram Dass vs. Financial Commissioner and Ors. AIR 1977 SC 1221.
10. The latest view taken by the Supreme Court is in Civil Appeal No. 19896 of 2013 in the case "M/s Ambadi Enterprise Ltd. Vs. Smt. Rajalakshmi Subramanian", decided on 12th July 2013 wherein SLP was dismissed upholding the judgment of this Commission, where the delay of 78 days was not condoned.
11. Again the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 33792 of 2013 in Chief Officer, Nagpur Housing & Area Development Board &Anr. V. Gopinath Kawadu Bhagat, decided on 19.11.2013, upholding the order of this Commission where 77 days delay was not condoned.
12. Above all, in Sanjay Sidgonda Patl Vs. National Insurance Co. Ltd. & Ors., decided by the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 37183 of 2013, decided on 17.12.2013, upholding the order of this Commission wherein delay of 13 days was not condoned.
13. Consequently, we find that the case is barred by time. However, we refrain from giving the view on the merits of this case."
26. Had the complainant been diligent and vigilant enough, he would not have unnecessarily wasted his time, by prosecuting the complaint before the wrong Forum. There was a complete lack of bona fides and inaction, on the part of the complainant, in pursing the remedy before a wrong Forum. It is evident from the record that after receipt of the copy of the order dated 22.04.2014, on 22.05.2014, the same was filed before the District Forum on 08.07.2014 i.e. after 46 days of the receipt of the order dated 22.04.2014. It is understandable that the complainant required few days time to do the needful paper work in order to file the complaint before the District Forum, but we are of the considered opinion that in such circumstances, the District Forum, Chandigarh rightly held that when the actual cause of action, which occurred to the complainant to file the complaint had already expired, during the pendency complaint before the District Forum, Shimla, then in such a scenario, each and every day that was consumed by the complaint since 22.05.2014 till 18.07.2014 (in fact 08.07.2014) should have been explained, so as to satisfy this Forum that there was no inordinate delay in filing the complaint, before the District Forum, Chandigarh. Moreover, it was obligatory upon the complainant, to withdraw the complaint, from the District Forum, Shimla, as soon as a preliminary objection was taken, in the written version, regarding lack of, territorial jurisdiction, with liberty to file the same before the District Forum, U.T., Chandigarh, to ensure that the same (complaint) was filed within the stipulated period, as envisaged under the Consumer Protection Act, 1986. It was, thus, a case of complete lack of bonafides and inaction, on the part of the complainant. There was no sufficient cause to explain the delay of 458 days in filing the complaint which is about 16 times beyond the prescribed of limitation. The District Forum was right in holding so.
27. Keeping in view the facts and circumstances of the case, we are of the considered view that the District Forum was right, in dismissing the application for condonation of delay as well as the complaint being barred by limitation, as stated above. Hence, the order passed by the District Forum, being based on the correct appreciation of record and law on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
28. For the reasons recorded above, the appeal, filed by the appellant/complainant, being devoid of merit, must fail, and the same stands dismissed, with no order as to costs. The order of the District Forum is upheld.
29. Certified Copies of this order be sent to the parties, free of charge.
30. The file be consigned to Record Room, after completion.
Pronounced.
13.04.2015 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER