State Consumer Disputes Redressal Commission
Icici Lombard Gen Insurance Company ... vs Jaspal Singh on 3 December, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.213 of 2015
Date of institution : 18.02.2015
Date of decision : 03.12.2015
1. ICICI Lombard General Insurance Company Limited,
Amritsar, through its Branch Manager.
2. ICICI Lombard General Insurance Company Limited, S.C.O.
No.24-25, Ist Floor, Sector 8-C, Madhya Marg, Chandigarh,
through its Legal Manager.
....Appellants/Opposite Parties
Versus
Jaspal Singh son of Harbhajan Singh, aged about 37 years,
resident of Village Shahpur Jajan, P.S. Dera Baba Nanak, District
Gurdaspur.
....Respondent/Complainant
First Appeal against the order dated
13.01.2015 of the District Consumer
Disputes Redressal Forum, Gurdaspur.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Vinod Kumar Gupta, Member.
Present:-
For the appellants : Shri Gaurav Sharma, Advocate For the respondent : Shri Dinesh Mahajan, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The appellants/opposite parties have preferred this appeal against the order dated 13.01.2015 passed by District Consumer Disputes Redressal Forum, Gurdaspur (in short, "District Forum"), vide which the application filed by the respondent/ First Appeal No.213 of 2015 2 complainant, Jaspal Singh, for condoning the delay in filing the complaint, under Section 12 of the Consumer Protection Act, 1986, was allowed. The complainant alleged in the application that he purchased one tractor bearing Registration No.PB-18-N-0998; which he got insured with the opposite parties. The tractor was got financed by him from ICICI Bank Limited, Amritsar, and he had been regularly paying the instalments towards the loan. On 14.07.2009, he visited the house of his sister at Batala and had his dinner at that place. Thereafter, he proceeded towards his village Shahpur Jajan on the tractor at about 9.00 P.M. He was not feeling well and, as such, decided to take rest near village Madiyawal. He parked the tractor on the road and sat down on the roadside and went into sleep. The next morning, when he got up, he found that the tractor was missing. He searched for the same, but failed. He got the FIR registered in Police Station, Civil Lines, Batala, on 15.07.2009 about the theft of the same. Compelled by the circumstances, he decided to file the consumer complaint in the month of April, 2012 and, accordingly, approached Sh. Satinder Pal Singh, Advocate, at Batala and paid him a fee of Rs.20,000/-. He was assured that the complaint would be filed within two or three days. When after three days, he approached that Advocate to inquire about the filing of the complaint, he was told that a legal notice was required before filing the same and that the same had been sent to the opposite parties. When he demanded the copy of that legal notice from the Advocate, he was told that the same was lying in his office at his house and that he could collect the same on First Appeal No.213 of 2015 3 some other day. He again approached that Advocate after two weeks to inquire about the filing of the complaint, but was told that the period of said notice had not lapsed and that the complaint would be filed within two or three days. When he approached the Advocate after a week to inquire about the filing of the complaint, he was told that the same had been filed and that his presence was not necessary and whenever he would feel need of, he would definitely contact him. On 15.06.2011, he received a legal notice from ICICI Bank, vide which the outstanding amount of loan was demanded. After the receipt of that notice, he again approached the said Advocate and was told that the legal notice was required to be replied. He again approached the Advocate in the month of November, 2012 to inquire about the fate of his complaint and was told that the same was still pending. He was told that it would take two or three years and he should not worry about the same. On that day, he was also delivered unsigned copy of the reply sent by the Advocate to ICICI Bank, Amritsar. On 07.06.2012, he again received a letter from that Bank, vide which the outstanding loan amount was demanded. After the receipt of that notice, he again met the same Advocate and was told that the reply was to be given to that notice. After a week, he again approached that Advocate and was told that the reply had been sent to the Bank. When he asked about the fate of his complaint, he was told that the same was still pending and his presence was not required. In the month of March, 2014, the officials of the Bank approached him for the recovery of loan and he told them about the pendency of the First Appeal No.213 of 2015 4 complaint and that after the decision thereof, he would return the loan amount. He again approached Satinder Pal Singh, Advocate, at Batala to know about the status of his complaint and was told that the complaint was still pending. He also told him that he would definitely win that case. It was on the assurance given by the Advocate that he remained silent for some time. He again approached him in the month of July, 2014 and was told that the case was fixed for orders. In the first week of September, 2014, he again went to the Advocate at his office to know about the order passed in his case, but he was not available. The clerk, who was sitting in the office, on inquiry, told him that no such complaint had been filed nor any such complaint was pending before any court.
He was shocked, when he came to know about the non-filing of the complaint. He visited Gurdaspur to inquire about the matter and came to know that no complaint had been filed before Consumer Court and a fraud was played by Sh. Satinder Pal Singh, Advocate. All these facts resulted in the delay in filing the complaint.
2. The application was contested by the opposite parties. In the reply filed by them before the District Forum, they denied the contentions made therein and pleaded that the story put forward by the complainant is false, frivolous and concocted one. The same has been done by the complainant to get such a long delay condoned. No reasonable/sufficient cause is made out for condoning the delay. They prayed for the dismissal of the application.
First Appeal No.213 of 2015 5
3. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
4. It was submitted by the learned counsel for the complainant that the facts, as pleaded in the application, were duly supported by the affidavit of the complainant, who had also given an affidavit before the Bar Council against that Advocate about the acceptance of the brief and fee and non-filing of the complaint and keeping him in dark for all these years. In these circumstances, the complainant is not to be blamed for the delay; who had been the victim of apathy on the part of the counsel engaged by him. It cannot be said that there was any intentional or wilful delay in filing the complaint. Otherwise also, the complainant has a good case on merits; as the claim made by him, regarding the theft of the tractor, to the opposite parties, could not have been repudiated, on the ground mentioned in the repudiation letter. The opposite parties are only relying upon the report of the Investigator in support of their stand that the key of the tractor was left in the tractor itself, in order to prove that the complainant did not take reasonable care of a prudent person to safeguard the tractor from theft. In support of his arguments, he relied upon the following judgments:-
i) Chandan Singh Vs. National Insurance Co. Ltd. & Anr.
2015 (2) Civil Court Cases 248 (S.C.);
ii) M/s. GMG Engineering Industries & Ors. Vs. M/s. Issa Green Power Solution & Ors. 2015 (3) Civil Court Cases 142 (S.C.);
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iii) Meena, Keshav Bansal Vs. Union of India & Ors. 2014 (1) CPJ 565 (NC); and
iv) National Insurance Company and another Vs. Baldhir Singh and another 2014 (3) R.C.R. (Civil) 610.
5. On the other hand, it was submitted by the learned counsel for the opposite parties that there is no truth in the contentions made in the application and the said story has been concocted by the complainant for getting the long delay condoned. The order passed by the District Forum is sketchy and does not contain any reason for the finding recorded therein. Such an order cannot be sustained and is liable to be set aside. This fact is also to be taken note of, while deciding the application, that there is no merit in the complaint, so filed by the complainant. It is his own case that the ignition key of the tractor was left inside the tractor itself and, as such, he failed to take reasonable care to safeguard the tractor from theft etc. and by invoking the relevant clause of the terms and conditions of the Policy, the opposite parties rightly repudiated his claim. In support of his arguments, he relied upon the judgment of the Hon'ble National Commission, rendered in Revision Petition No.3251 of 2013 decided on 05.05.2014 (Oriental Insurance Co. Ltd. Vs. Shyam Sunder).
6. The District Forum passed sketchy and non-speaking order, while allowing the application. A perusal thereof shows that the finding was recorded in favour of the complainant, merely on the basis of the contentions made in the application, without taking First Appeal No.213 of 2015 7 into consideration the facts and circumstances of the case. It was also recorded therein that there is prima facie merit in the complaint, but there is no reasoning recorded therein regarding that finding. The above said judgments were referred to by the counsel for the complainant, in order to show that the courts/quasi judicial authorities should be liberal, while condoning the delays and the merits of the case be also gone into and in case the scale of merits tilts in favour of the complainant, then to condone even the long delays.
7. In Chandan Singh's case (supra), it was held by the Hon'ble Supreme Court that the courts and tribunals are required to examine the cases of the litigants on merits and not to reject the cases at threshold on technicalities, i.e. on the ground of delay. In M/s. GMG Engineering Industries' case (supra), while interpreting the "Sufficient Cause", it was held that the same is to receive liberal construction, so as to advance substantial justice. When there is no negligence, inaction or want of bonafide is imputable to the appellants, the delay has to be condoned. The discretion is to be exercised, like any other judicial discretion, with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague and fanciful manner. The true test is to see, whether the applicant has acted with due diligence.
8. In Meena, Keshav Bansal's case (supra), there was 2167 days' delay in filing the appeal and it was pleaded by the complainant that she had engaged an Advocate for filing the appeal against the order of the District Forum and made necessary First Appeal No.213 of 2015 8 payments to him and was eventually informed by that counsel that he could not file the appeal, due to some family problem. Thereafter, she engaged another counsel for filing the appeal. It was held by the Hon'ble National Commission that it was a mistake on the part of the complainant to have relied on the counsel and believing him for such a long time and that the State Commission ought to have condoned the delay and considered the appeal on merits.
9. Can in the present case, it be held that there was no such want of bonafide or wilful default or negligence on the part of the complainant in believing the assurance given by the Advocate that he had filed the complaint, which would take some time for disposal? He has contended in the application that the notices received by him from the side of the financer Bank, asking him to deposit the loan amount, were handed over by him to the same Advocate. He must have handed over all the documents to that Advocate for filing the complaint. If it was so, then how all those documents were filed with the present complaint? Even the notices, so received from the financer Bank, were tendered in evidence by him before the District Forum. He could not have tendered these documents in evidence, in case the contentions made by him in the application were true. Very cleverly, he has coined such a story, so as to make the Foras believe that the non-filing of the complaint for such a long time was on account of the inaction of the counsel in not filing the complaint. If he had proceeded against that Advocate before the Bar Council, why he has not placed on record the order First Appeal No.213 of 2015 9 passed by the Bar Council, if any? Even if this Commission is to have liberal approach, even then it cannot be held that the complainant has been able to make sufficient cause in not filing the complaint within the period of limitation.
10. In case the complainant is able to make out a good case on merits, then certainly the delay in filing the complaint can be condoned. However, the complainant has not been able to make out a good case on merits and, as such, we are inclined to allow this appeal against the order, vide which the delay in filing the complaint has been condoned. As per the contents of the repudiation letter, the claim made by him to the opposite parties was repudiated, on the ground that he violated the terms and conditions of the Insurance Policy, by not taking all reasonable steps to safeguard the vehicle from loss or damage; as he had left the keys of the vehicle in the vehicle itself. The terms and conditions of the Policy were relied upon by both the sides and were proved before the District Forum, as Ex.OP-5. The relevant condition thereof is reproduced below:-
"The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper First Appeal No.213 of 2015 10 precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are effected, any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk."
Thus, the complainant was required to take all reasonable steps to safeguard the vehicle from loss or damage. He himself placed on record his duly sworn affidavit, which was tendered in evidence by the opposite parties, as Ex.OP-2. He deposed in that affidavit that there were two ignition keys of the tractor; out of which he deposited one with the Insurance Company and the other had been stolen. In Para No.3 of that affidavit, he deposed that the same was stolen, along with the tractor. Thus, that ignition key was left by him in the tractor when, according to him, he stopped the same after he started feeling suffocated and sat down on the ground. At least, he should have removed that ignition key from the vehicle, in order to prevent the theft thereof. No doubt, learned counsel for the complainant, in order to make out a case on merits by contending that even the leaving of the ignition key in that vehicle cannot be said to be negligence, relied upon Baldhir Singh's case (supra), but the facts of that case were different. In that case, the complainant had alighted from the car for purchasing the Kulfi from a nearby Rehri and when he was about to start the vehicle, the Kulfi vendor called him to exchange the currency note of Rs.20/- and when he stepped out to exchange that currency note, two First Appeal No.213 of 2015 11 young boys, taking advantage of the situation, started his car and took away the same. The "Permanent Lok Adalat" allowed the claim of the insured and the learned Single Judge of the Hon'ble High Court did not agree with the plea of the Insurance Company and upheld the award passed by the "Permanent Lok Adalat". The matter went before the Division Bench and it was held that they were in complete agreement with the conclusion arrived at by the "Permanent Lok Adalat" as well as the learned Single Judge; as it was not as if the owner of the insured car left the key and abandoned the car, giving an opportunity to the thieves to take it away. The owner of the insured car was very much there and he was in the process of moving away, when he was called to exchange the currency note given by him to the seller of the Kulfi and when he stepped out to exchange the currency note, the thieves took advantage of the situation and took away the car. In the present case, the non-removing of the ignition key by the complainant and sitting on the ground and then sleeping at that place, amounts to abandoning of the ignition key in the vehicle itself. The ratio of this ruling cannot be applied to the facts of the present case. In Shyam Sunder's case (supra), the facts were somewhat similar. In that case, the son of the complainant left the key in the vehicle, while going to ease out and it was held that he violated the condition of the Policy and the Insurance Company had not committed any deficiency in repudiating the claim of the complainant.
First Appeal No.213 of 2015 12
11. Therefore, it can be easily held that prima facie there was no merit in the complaint filed by the complainant and the finding recorded, to the contrary, by the District Forum cannot be sustained. It was not justified in condoning the long delay; which the complainant could not satisfactorily explain.
12. In the result, this appeal is allowed, the order passed by the District Forum is set aside and the complaint filed by the complainant is dismissed, as barred by time.
13. The arguments in this case were heard on 30.11.2015 and the order was reserved. Now, the order be communicated to the parties.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER December 03, 2015.
(Gurmeet S)