National Consumer Disputes Redressal
Northern Power Distribution Co. Ltd. & ... vs Alwala Mangamma & Ors. on 19 November, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2802 OF 2013 (From the order dated 20.02.2013 in Appeal No. 48/12 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad) With IA/4813/2013 IA/4814/2013 IA/4815/2013 IA/6670/2013 (Exemption from filing the certified copy, condonation of delay, Stay & Delay) 1. Northern Power Distribution Co. Ltd. Re. by its Chief Managing Director Chaitanyapuri, REC, Warangal District, Andhra Pradesh 2. Northern Power Distribution Co. Ltd. Rep. by its Divisional Engineer, Mahabubabad , Andhra Pradesh 3. The Assistant Engineer Marripeda Sub Station Northern Power Distribution Co. Ltd. Marripeda (V & M) Warangal District (Andhra Pradesh) Petitioners/Opp. Parties (OP) Versus 1. Alwala Mangamma W/o late Krishnaiah 2. Alwala Venkanna S/o late Krishnaiah 3. Alwala Vijaya W/o Madhu All are R/o H. No. 3-1-53, Shivalayam Street Marripeda (V & M), Warangal District, Andhra Pradesh Respondents/Complainants BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER For the Petitioners : Mr. G.N. Reddy, Advocate PRONOUNCED ON 19th November, 2013 O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioners against the order dated 20.02.2013 passed by A.P. State Consumer Disputes Redressal Commission, Hyderabad (in short, the State Commission) in Appeal No. 48 of 2012 Alwala Mangamma & Ors. Vs. Northern Power Distribution Co. Ltd. & Ors. by which, while allowing appeal, order of District Forum dismissing complaint was set aside and complaint was allowed.
2. Brief facts of the case are that complainants/respondents are wife and children of deceased Alawala Krishnaiah. It was further alleged that they own a house and obtained electricity service connection for domestic purpose and were paying electricity charges to OP/petitioners regularly. On 13.11.2010 at 5.30 p.m. deceased Alawala Krishnaiah while taking towel came into contact with the service connection wire portion in between the pole No. 28/T and electricity meter and died due to electrocution. FIR was lodged. Notice was issued to OPs to pay compensation of Rs.10,00,000/-. As no response was received, alleging deficiency on the part of OP, complainants filed complaint before District Forum.
OP No. 3 filed written statement and submitted that Alwala Mangamma died due to his own negligence. It was further submitted that service connection was higher rated one and the same ought to have been decreased to low rated electricity and due to higher rated electricity, the service wire and its insulation melted resulting in the electrocution. OP is responsible only for connection in between pole to pole, but not pole to service meter and its wire. Denying any deficiency, OP prayed for dismissal of complaint. OP Nos. 1 & 2 adopted the same written statement. Learned District Forum after hearing both the parties, dismissed complaint. Appeal filed by the complainants was allowed by learned State Commission vide impugned order against which, this revision petition has been filed along with application for condonation of delay.
3. Heard learned Counsel for the petitioners on the application for condonation of delay and perused record.
4. Petitioner filed application for condonation of delay along with revision petition and later on filed another application No. 6670/2013 for condonation of delay and submitted that copy of the impugned order which was dispatched on 25.2.2013 by the State Commission was received by the petitioner on 12.3.2013. Opinion of Counsel in the State Commission was received on 25.3.2013 and Chairman accorded permission for filing revision petition on 17.04.2013 and cheque of Rs.35,500/- was prepared on 26.4.2013. It was further submitted that present Counsel was contacted in the first week of May, 2013 and he received file on 10.5.2013, but due to summer vacations, he was out of station and immediately after re-opening in the first week of July, 2013, he prepared revision petition and filed it on 30.7.2013; so, delay of 70 days may be condoned. Learned Counsel for the petitioner submitted that on account of summer vacations, revision petition could not be filed in time and delay of 70 days in filing revision petition be condoned.
5. Perusal of application clearly reveals that file was received by the Counsel for the petitioner on 10.5.2013, whereas revision petition has been filed on 30.7.2013. No explanation has been given for taking 80 days in preparation of revision petition. It has been mentioned in the application that due to summer vacations, Counsel for the petitioner was out of station. In this Commission, summer vacations were from 3.6.2013 to 28.6.2013, but the Registry was open. As per submissions in the application itself, Counsel for the petitioner prepared revision petition in first week of July, 2013, but no reason has been given as to why was it not filed immediately instead of 30th July, 2013, when everything was ready with him.
6. As there is inordinate delay of 70 days, this delay cannot be condoned in the light of the following judgment passed by the Honble Apex Court.
7. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.
8. In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has been observed:
We hold that in each and every case the Court has to examine whether delay in filing the special appeal 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.
9. Honble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as under:
We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.
10. Honble Apex Court in 2012 (2) CPC 3 (SC) Anshul Aggarwal Vs. New Okhla Industrial Development Authority observed as under:
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.
11. Honble Apex Court in (2012) 3 SCC 563 Post Master General & Ors. Vs. Living Media India Ltd. and Anr. has not condoned delay in filing appeal even by Government department and further observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.
Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 70 days. In such circumstances, application for condonation of delay is dismissed.
As application for condonation of delay has been dismissed, revision petition being barred by limitation is also liable to be dismissed.
12. Consequently, the revision petition filed by the petitioner is dismissed as barred by limitation at admission stage with no order as to costs.
( K.S. CHAUDHARI, J) PRESIDING MEMBER ..
( DR. B.C. GUPTA ) MEMBER k ) Smt. Raj Bala W/o Late Sh. Jit Singh S/o Sh. Balbir Singh R/o Village: Bhatgaon Panna: Malyan, Tehsil & Distt. Sonepat Haryana Petitioner/Complainant Versus LIC of India Through Branch Manager, Gohana Civil Road, Gohana, Haryana Respondent/Opp. Party (OP) BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONBLE DR.
B.C. GUPTA, MEMBER For the Petitioner : Mr. R.S. Malik, Advocate For the Respondent : Mr. Arunav Patnaik, Advocate Ms. Mahima Sinha, Advocate PRONOUNCED ON October, 2013 O R D E R PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioner against the order dated 29.11.2012 passed by Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, the State Commission) in Appeal No. 1380 of 2012 Smt. Raj Bala Vs. LIC of India by which, while dismissing appeal, order of District Forum directing to pay paid up value was upheld.
2. Brief facts of the case are that complainant/petitioners husband had purchased two insurance policies from OP/respondent on 20.1.1999 for a sum of Rs.50,000/- and Rs.2,00,000/-, respectively. On 10.10.2001, complainants husband did not return back to home from his office so; FIR was lodged on 3.11.2001 under Section 365 IPC. Complainant also informed OP about kidnapping of her husband, but OP did not inform the complainant regarding steps to be taken. Complainant paid last premium of Rs.3248/- on 13.1.2007 and Rs. 3,211/- on 26.1.2008. It was further alleged that complainant filed Civil Suit No. 755/2009 in the Court of Civil Judge (JD), Sonepat for declaration that her husband Jeet Singh is dead and decree to that declaration was passed on 21.5.2010. Complainant also obtained death certificate on 2.8.2010 from concerned Registrar. It was further submitted that cheque of Rs.10,000/- issued by OP was returned by complainant. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that complainant was asked to keep the policy in force by making payment of due premium vide Regd. letter dated 16.5.2002. It was further submitted that date of death of Jeet Singh will be treated as 21.5.2010 and not 10.10.2001. As both the polices had already elapsed, complainant was entitled to receive paid up value of the policy and prayed for dismissal of complaint. Learned District Forum after hearing both the parties directed OP to pay paid up value of the polices to the complainant. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.
3. Heard learned Counsel for the parties finally at admission stage and perused record.
4. Learned Counsel for the petitioner submitted that as petitioners husband was missing from 10.10.2001 and declaration regarding death had already been obtained from the Civil Court vide decree dated 21.05.2010, Jeet Singhs death should be treated from 10.10.2001 and complainant was entitled to receive full payment of policies, but learned District Forum has committed error in allowing only paid up value and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law as policy had already elapsed before death of Jeet Singh; hence, revision petition be dismissed.
5. It is admitted fact that petitioners husband obtained two insurance policies on 20.1.1999 and as per petitioners allegation, her husband was missing from 10.10.2001 and petitioner paid last premium on 13.1.2007 for the first policy and on 26.1.2008 for the second policy. It is also not disputed that petitioner filed Civil Suit on 9.5.2009 for declaration of death of her husband which was decided on 21.5.2010.
6. Learned Counsel for the petitioner submitted that death should be presumed from 10.10.2001, whereas learned Counsel for the respondent submitted that death to be presumed from 21.5.2010 or at the earliest from 9.5.2009 when Civil Suit for declaration was filed. Learned Counsel for the respondent has placed reliance on (2004) 10 SCC 131 LIC of India Vs. Anuradha in which such type of controversy has been dealt at length in paragraphs 14 to 16, which runs as under:
14.
On the basis of the above said authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words. The law as to presumption of death remains the same whether in Common Law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act 1872. In the scheme of Evidence Act, though Sections 107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the rule enacted in Section
107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question, arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person who's life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise.
15. If an issue may arise as to the date or time of death the same shall have to be determined on evidence -- direct or circumstantial and not by assumption or presumption. The burden of proof would lay on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed.
16. We cannot, therefore, countenance the view taken by the High Court in either of the two appeals that on the expiry of seven years by the time the issue came to be raised in Consumer Forum or Civil Court and evidence was adduced that the person was not heard of for a period of seven years by the wife and/or family members of the person then not only the death could be presumed but it could also be assumed that the presumed death had synchronized with the date when he was reported to be missing or that the date and time of death could be correlated to the point of time coinciding with the commencement of calculation of seven years backwards from the date of initiation of legal proceedings. In order to successfully maintain the claim for benefit under the insurance policies it is necessary for the policy to have been kept alive by punctual payment of premiums until the claim was made. The appellant-LIC was justified in turning down the claims by pleading that the policies had lapsed and all that could be paid to the claimants was the paid-up value of the policies.
7. Perusal of aforesaid judgement clearly reveals that death of petitioners husband is to be presumed at the earliest from 9.5.2009 and certainly not from the date of missing i.e. 10.10.2001. Admittedly, premium of first policy was not paid after 13.1.2007 and premium of second policy was not paid after 26.1.2008 and both the polices lapsed before filing Civil Suit on 9.5.2009 meaning thereby both policies has lapsed during life time of the deceased. In these circumstances, in the light of aforesaid judgement, petitioner was entitled to receive only paid up value of the polices and not the maturity amount and learned District Forum has not committed any error in allowing complaint only to that extent and learned State Commission has not committed any error in dismissing appeal and revision petition is liable to be dismissed.
8. Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to costs.
( K.S. CHAUDHARI, J) PRESIDING MEMBER ..
( DR. B.C. GUPTA ) MEMBER k Smt. Raj Bala W/o Late Sh. Jit Singh S/o Sh. Balbir Singh R/o Village: Bhatgaon Panna: Malyan, Tehsil & Distt. Sonepat Haryana Petitioner/Complainant Versus LIC of India Through Branch Manager, Gohana Civil Road, Gohana, Haryana Respondent/Opp. Party (OP) BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONBLE DR.
B.C. GUPTA, MEMBER For the Petitioner : Mr. R.S. Malik, Advocate For the Respondent : Mr. Arunav Patnaik, Advocate Ms. Mahima Sinha, Advocate PRONOUNCED ON October, 2013 O R D E R PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioner against the order dated 29.11.2012 passed by Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, the State Commission) in Appeal No. 1380 of 2012 Smt. Raj Bala Vs. LIC of India by which, while dismissing appeal, order of District Forum directing to pay paid up value was upheld.
2. Brief facts of the case are that complainant/petitioners husband had purchased two insurance policies from OP/respondent on 20.1.1999 for a sum of Rs.50,000/- and Rs.2,00,000/-, respectively. On 10.10.2001, complainants husband did not return back to home from his office so; FIR was lodged on 3.11.2001 under Section 365 IPC. Complainant also informed OP about kidnapping of her husband, but OP did not inform the complainant regarding steps to be taken. Complainant paid last premium of Rs.3248/- on 13.1.2007 and Rs. 3,211/- on 26.1.2008. It was further alleged that complainant filed Civil Suit No. 755/2009 in the Court of Civil Judge (JD), Sonepat for declaration that her husband Jeet Singh is dead and decree to that declaration was passed on 21.5.2010. Complainant also obtained death certificate on 2.8.2010 from concerned Registrar. It was further submitted that cheque of Rs.10,000/- issued by OP was returned by complainant. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that complainant was asked to keep the policy in force by making payment of due premium vide Regd. letter dated 16.5.2002. It was further submitted that date of death of Jeet Singh will be treated as 21.5.2010 and not 10.10.2001. As both the polices had already elapsed, complainant was entitled to receive paid up value of the policy and prayed for dismissal of complaint. Learned District Forum after hearing both the parties directed OP to pay paid up value of the polices to the complainant. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.
3. Heard learned Counsel for the parties finally at admission stage and perused record.
4. Learned Counsel for the petitioner submitted that as petitioners husband was missing from 10.10.2001 and declaration regarding death had already been obtained from the Civil Court vide decree dated 21.05.2010, Jeet Singhs death should be treated from 10.10.2001 and complainant was entitled to receive full payment of policies, but learned District Forum has committed error in allowing only paid up value and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law as policy had already elapsed before death of Jeet Singh; hence, revision petition be dismissed.
5. It is admitted fact that petitioners husband obtained two insurance policies on 20.1.1999 and as per petitioners allegation, her husband was missing from 10.10.2001 and petitioner paid last premium on 13.1.2007 for the first policy and on 26.1.2008 for the second policy. It is also not disputed that petitioner filed Civil Suit on 9.5.2009 for declaration of death of her husband which was decided on 21.5.2010.
6. Learned Counsel for the petitioner submitted that death should be presumed from 10.10.2001, whereas learned Counsel for the respondent submitted that death to be presumed from 21.5.2010 or at the earliest from 9.5.2009 when Civil Suit for declaration was filed. Learned Counsel for the respondent has placed reliance on (2004) 10 SCC 131 LIC of India Vs. Anuradha in which such type of controversy has been dealt at length in paragraphs 14 to 16, which runs as under:
14.
On the basis of the above said authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words. The law as to presumption of death remains the same whether in Common Law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act 1872. In the scheme of Evidence Act, though Sections 107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the rule enacted in Section
107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question, arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person who's life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise.
15. If an issue may arise as to the date or time of death the same shall have to be determined on evidence -- direct or circumstantial and not by assumption or presumption. The burden of proof would lay on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed.
16. We cannot, therefore, countenance the view taken by the High Court in either of the two appeals that on the expiry of seven years by the time the issue came to be raised in Consumer Forum or Civil Court and evidence was adduced that the person was not heard of for a period of seven years by the wife and/or family members of the person then not only the death could be presumed but it could also be assumed that the presumed death had synchronized with the date when he was reported to be missing or that the date and time of death could be correlated to the point of time coinciding with the commencement of calculation of seven years backwards from the date of initiation of legal proceedings. In order to successfully maintain the claim for benefit under the insurance policies it is necessary for the policy to have been kept alive by punctual payment of premiums until the claim was made. The appellant-LIC was justified in turning down the claims by pleading that the policies had lapsed and all that could be paid to the claimants was the paid-up value of the policies.
7. Perusal of aforesaid judgement clearly reveals that death of petitioners husband is to be presumed at the earliest from 9.5.2009 and certainly not from the date of missing i.e. 10.10.2001. Admittedly, premium of first policy was not paid after 13.1.2007 and premium of second policy was not paid after 26.1.2008 and both the polices lapsed before filing Civil Suit on 9.5.2009 meaning thereby both policies has lapsed during life time of the deceased. In these circumstances, in the light of aforesaid judgement, petitioner was entitled to receive only paid up value of the polices and not the maturity amount and learned District Forum has not committed any error in allowing complaint only to that extent and learned State Commission has not committed any error in dismissing appeal and revision petition is liable to be dismissed.
8. Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to costs.
Sd/-
( K.S. CHAUDHARI, J) PRESIDING MEMBER ..Sd/-
( DR. B.C. GUPTA ) MEMBER k