State Consumer Disputes Redressal Commission
Shri Ram General Insurance Company Ltd. vs Sukhwinder Singh on 1 September, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 208 of 2015 Date of Institution : 31.08.2015 Date of Decision : 01.09.2015 Shri Ram General Insurance Co. Limited, SCO No.178, Sector 38-C, Chandigarh, through its Branch Manager Ashraf Ali. .......Appellant/Opposite Party No.1. Versus 1] Sukhwinder Singh S/o Sh. Sukhdev Singh, R/o #2122, Janta Colony, Naya Goan, Tehsil Kharar, District S.A.S. Nagar, Mohali. .......Respondent/Complainant. 2] CMPL Motors Pvt. Limited, Plot No.52, Industrial Area, Phase-I, Chandigarh, through its Managing Director. ....Respondent/Opposite Party No.2. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: SH. DEV RAJ, PRESIDING MEMBER.
SMT. PADMA PANDEY, MEMBER.
Argued by:
Sh. Vinod K. Arya, Advocate for the applicant/appellant.
PER DEV RAJ, PRESIDING MEMBER.
This appeal is directed against the order dated 29.08.2014, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it allowed the complaint of the complainant (now respondent No.1) against Opposite Party No.1 (now appellant) and directed it as under:-
"14. In the light of above observations, we are of the concerted view that the Opposite Party No.1 is found deficient in giving proper service to the complainant and having indulged in unfair trade practice. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Party No.1 alone, and the same is allowed, qua it. The Opposite Party No.1 is directed to:-
[a] To pay Rs.65,990/-spent by the Complainant on the repair of the vehicle;
[b] To pay Rs.15,000/- to the Complainant on account of deficiency in service, unfair trade practice and causing mental agony and harassment;
[c] To pay Rs.7,000/- as cost of litigation.
15. The above said order shall be complied within 45 days of its receipt by the Opposite Party No.1; thereafter, Opposite Party No.1 shall be liable for an interest @12% per annum on the amount mentioned in sub-para [a] & [b] of Para 14 above from the date of institution of this complaint, till it is paid, apart from cost of litigation of Rs.7000/-."
2. The facts, in brief, are that the complainant got his new Piaggio APE Auto bearing Temp. Regn. No.CH-19[T]-3779 insured from Opposite Party No.1, through Opposite Party No.2, valid from 18.3.2013 to 17.3.2014, after paying premium of Rs.5,710/-. It was stated that on 14.04.2013, when the complainant was having his dinner, in a Dhaba, at Naya Goan, some unknown/unidentified vehicle dashed into his Auto and fled away, thereby extensively damaging the same, whilst it was parked near the said Dhaba. It was further stated that no police complaint was lodged. It was further stated that the loss was intimated to Opposite Party No.1, on whose advice, the vehicle was taken to Opposite Party No.2 (authorized repairer of the company), who repaired the vehicle and told the complainant to take delivery of the same. It was further stated that the complainant then approached Opposite Party No.1 to settle his claim, immediately, lest Opposite Party No.2 would impose parking charges on him. It was further stated that when Opposite Party No.1 failed to settle his claim, the complainant had to shell out Rs.65,990/- from his own pocket towards the repair charges. It was further stated that eventually, the Opposite Parties, vide letter dated 24.07.2013, repudiated the claim of the complainant on the ground that permit was not valid at the time of accident and also violation of the Motor Vehicles Act. It was further stated that thereafter, the complainant got his vehicle registered with Registration Authority, SAS Nagar, Mohali under permanent Registration No.PB-65V-3757. It was further stated that the complainant also sought information under the RTI Act from the Registering & Licensing Authority, SAS Nagar, Mohali, as to whether a route permit be issued to a vehicle immediately after its purchase when running under the temporary number. In response thereto, Public Information Officer-cum-DTO, SAS Nagar, vide his letter dated 05.03.2014 informed that a transport vehicle could not be issued permit unless it had got a permanent registration. It was further stated that in view of this, repudiation of his genuine claim by the Opposite Parties tantamounted to deficiency in service and unfair trade practice.
3. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, and indulgence 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, seeking directions to the Opposite Parties, to pay Rs.65,990/- alongwith interest @12% per annum Rs.50,000/- as compensation and Rs.21,000/- as litigation expenses.
4. Opposite Party No.1, in its written version, while admitting the factual matrix of the case, stated that the temporary registration was valid for a period of 30 days till 17.04.2013 w.e.f. 18.3.2013. It was stated that the complainant never applied for the permanent registration number within the time prescribed and was plying the vehicle, in question, without route permit and without a valid driving license. It was further stated that it was mandatory for the complainant to lodge FIR against unknown person. It was further stated that Opposite Party No.1 was not promptly intimated regarding the accident. It was further stated that the conduct of the complainant showed that probably, he had wrongly parked his vehicle at a place not meant for parking and he himself was at fault. It was further stated that the claim of the complainant was rightly repudiated as the vehicle, in question, was not having a valid permit at the time of alleged accident and that the provisions of the Motor Vehicle Act were also violated. It was further stated that the complainant was holding a driving license authorized to drive LMV, MGV and HGMV only. It was further stated that the complainant was not authorized to drive the Auto Rickshaw or a Three Wheeler yet he was plying the same without a valid driving license. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. Opposite Party No.2, in its written version, admitted the purchase of the vehicle from it, issuance of temporary registration number and insurance of the same from Opposite Party No.1. It was also admitted that the vehicle was brought to its Workshop for carrying out the accidental repairs, which were carried out to the satisfaction of the complainant. It was further stated that the complainant paid a sum of Rs.65,990/- to Opposite Party No.2 for the job carried out. It was further stated that the complainant had leveled the allegations of deficiency in service and unfair trade practice against the Opposite Party No.1 only in the entire body of the complaint and there arose no cause of action to file any complaint against Opposite Party No.2 in favour of the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, in the manner, referred to, in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.
8. Alongwith the appeal, an application under Section 5 of the Limitation Act, for condonation of delay of 327 days, was filed by the applicant/appellant, stating therein, that the impugned order was passed on 29.08.2014 and the certified copy of the same was supplied on 08.09.2014 and, thus, the appeal could be filed up-till 08.10.2014. It was further stated that after going through the impugned order, it was decided to file appeal and necessary permission for filing appeal from the competent authority was taken. It was further stated that thereafter, draft of statutory amount was got prepared on 29.09.2014 and the same alongwith the documents including the certified copy of the order was sent to Sh. Tajender K. Joshi, Advocate on 03.10.2014 for filing appeal. It was further stated that when nothing was heard from the said Counsel regarding the appeal, it transpired that the brief of the appeal was misplaced in the office of Sh. Tajender Joshi, Advocate and was not traceable. It was further stated that the brief was traced during the summer vacations from the office of the Counsel and by that time, the date of the draft had expired. It was further stated that the Head Office withdrew the brief from Sh. Tajender Joshi, Advocate and entrusted the same to Vinod Arya Advocate for preparing a fresh demand draft, for filing the appeal against the impugned order. It was further stated that the delay, in filing the appeal, was unintentional and beyond the control of the applicant/appellant.
9. We have heard the Counsel for the applicant/appellant, on the application, for condonation of delay, as also, in the main appeal, at the preliminary stage, and have gone through the record of the case, carefully.
10. The first question, that falls for consideration, is, as to whether, there is sufficient cause for condonation of delay of 327 days, in filing the present appeal, or not. 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 and 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."
11. 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.
12. In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 566, 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".
13. 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]"
14. In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, 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"
15. In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held 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"
16. 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.1618, 1619, 1620, 1645 and 1796 all of 2014, were decided, while dealing with the issue as regards condonation of delay of 61, 62 and 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."
17. 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".
18. 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."
19. A bare reading of the first proviso, engrafted to Section 15 of the Act, makes it clear, that the material part of the language thereof, is pari-materia to Section 5 of the Limitation Act, 1963. Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant/Opposite Party No.1, has been able to establish that it was on account of misplacement of brief in the office of Sh. Tajender Joshi, Advocate, to whom it was entrusted for filing the appeal, that it could not file the appeal, against the order dated 29.08.2014, in time. A bare perusal of the application for condonation of delay, which is duly supported by the affidavit of Sh. Ankur Joshi, Branch Manager, reveals that it has been simply stated in the application/affidavit in support thereof that the brief, whcih was got misplaced in the office of Sh. Tajender Joshi, Advocate, to whom it was entrusted for filing the appeal, was traced during the summer vacations and the same was then withrawan from Sh. Tajender Joshi, Advocate and entrusted to Sh. Vinod Arya, Advocate for preparing the demand draft and filing appeal. However, the dates, on which the said brief was misplaced and the same was traced from the office of Sh. Tajender Joshi, Advocate have not been disclosed. Moreover, no affidavit of the said Counsel namely Sh. Tajender Joshi, Advocate in support of the averments made in the application for condonation of delay, has been filed. Rather, affidavit of Sh. Ankur Joshi, Branch Manager of the applicant has been filed in support of the application, which is of no help to the applicant/appellant. Thus, simple averment that the brief was misplaced in the office of the Counsel is not a sufficient ground, for condonation of delay of 327 days. Therefore, it could be said that the applicant/appellant was not diligent enough to file the appeal within the stipulated period. The prescribed period of limitation, as envisaged by Section 15 of the Act, for filing an appeal is 30 days, from the date of receipt of a certified copy of the order. The applicant/appellant did not act, with due diligence, resulting into delay of 327 days in filing the appeal, which is nearly 1 Year beyond the prescribed period of limitation. The cause, set up by the applicant/appellant, in the application, for condonation of delay, could not be said to be plausible. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, coupled with the facts available on record viz. misplacement of brief in the office of the Counsel, the delay of 327 days cannot be condoned. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.
20. The next question, that arises for consideration, is, as to whether, this Commission can decide the appeal, on merits, especially, when it has come to the conclusion, that there is no sufficient cause, for condonation of delay of 327 days, in filing the same (appeal). The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India Vs B.S. Agricultural Industries (I) II (2009) CPJ 29 (SC). The question before the Apex Court, was with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act. The Apex Court was pleased to observe as under;
"Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:
"24A. Limitation period--(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."
It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, 'shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside."
21. The principle of law, laid down, by the Apex Court in State Bank of India's case (supra), is equally applicable to the filing of an appeal, under Section 15 of the Act. In case, this Commission, decides the appeal, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in State Bank of India's case (supra).
22. For the reasons, recorded above, the application for condonation of delay of 327 days, being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal, under Section 15 of the Act, is also dismissed, being barred by time, at the preliminary stage, with no order as to costs.
23. Certified copies of this order, be sent to the parties, free of charge.
24. The file be consigned to Record Room, after completion.
Pronounced.
September 01, 2015.
Sd/-
(DEV RAJ) PRESIDING MEMBER Sd/-
(PADMA PANDEY) MEMBER Ad