National Consumer Disputes Redressal
Naina Rambabu vs Oriental Insurance Co. Ltd. And Anr. on 13 March, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 773 of 2011 (From the order dated 09.09.2010 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in First Appeal no. 715 of 2008) Naina Rambabu Son of Suryanarayana Reddy Resident of China Kumari Veedhi Petitioner Salur, Vizianagaram District Andhra Pradesh Versus Oriental Insurance Co., Ltd. Represented by its Divisional Manager Divisional Office 1, Daba Gardens Visakhapatnam (Andhra Pradesh) Respondents The New Haryana Transport Company Represented by its Branch Manager D No. 25-3-2010, 75 Feet Road Visakhapatnam BEFORE: HONBLE MR JUSTICE V B GUPTA PRESIDING MEMBER HONBLE MRS REKHA GUPTA MEMBER For the Petitioner Mr K K Kishore, Advocate For the Respondents Mr A K Kaul, Advocate for R 1 Pronounced on 13th March 2013 ORDER
REKHA GUPTA The present revision petition has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the order dated 9th September 2010 in First Appeal no. 715 of 2008.
2. The brief facts of the petitioner are that the on 11.05.2005, the respondent no. 2 engaged the lorry of the petitioner to transport Ammonium Nitrate Fertilizer Grade from the godowns of IBP company C/o K R and Sons (P) Ltd., Visakhapatnam to M/s IBP Company Ltd., C/o Hindustan Copper Ltd., Malanjkand, Balaghat District in Chhattisgarh. On 13.05.205 while transporting the said Ammonium Nitrate Fertilizer Grade, the lorry reached Kurud village in Dhamtari Mandal in Raipur District in Chhattisgarh and at about 3.00 A M when the driver of the lorry given side to the oncoming vehicle and the driver of the on coming vehicle has not applied dip and dim signal and in the process the lorry of the complainant hit a tree on the road margin and the complainants lorry sustained the following damages.
Chassis of the lorry completely damaged Cabin was completely damaged Engine and gear box were damaged.
3. Diesel tank, battery, front side springs and all electrical cables and body of the lorry was completely damaged. The petitioner estimated the damages at Rs.2.00 lakh. The said accident was not caused due to any explosion or due to any cause attributable to explosive nature of Ammonium Nitrate and it was caused due to above mentioned inevitable circumstances.
4. An FIR was lodged with the police Station Dhamtari under section 279 and 332 of IPC in Crime no. 185 of 2005 dated 14.05.2005. Respondent no. 1/ Insurance Company had been informed about the incident on 16.05.2005. Respondent no. 1 made spot inspection of the damaged vehicle at the accident spot.
Respondent no. 1 appointed surveyor who conducted a spot survey. In the month of June 2005, the respondent no. 1 deputed its local surveyor from Viaskhapatnam for spot inspection of the damaged vehicle. The surveyor submitted his report on 12.06.2005 estimating the damage of the vehicle at Rs.1,75,350/-. The said vehicle was insured with the respondent no.1 under policy no. 432200/31/205/01025 which was valid from 04.09.2004 to 03.09.2005. The total coverage under the said policy was Rs.1,80,000/- towards damage if any caused to the vehicle.
5. The respondent no.1 stated that they repudiated the claim of the petitioner based on the driving license verification from the Road Transport Authority, who certified that the driver of the accident vehicle did not possess required endorsement to transport hazardous goods.
6. Due to the repudiation of the claim by respondent no. 1, the petitioner filed a complaint before the District Consumer Disputes Redressal Forum II at Visakhapatnam (in short, the District Forum). The District Forum after going the records of the case ordered that the first respondent, the insurance company is directed to pay a sum of rs.1,75,35/- together with interest at 9% per annum accrues thereon from 08.11.2005 till the date of actual realisation besides to pay cost of Rs.5,000/- to the petitioner within a month from the date of this order. However, the claim of the petitioner for damages is rejected.
7. Aggrieved by the order of the District Forum, the respondent no. 1 insurance company filed an appeal before the State Commission. The State Commission, however, concluded that admittedly, the driver of the respondent no1 was authorised to drive the heavy goods vehicle and heavy motor vehicle and his driving licence does not carry endorsement from the competent authority authorising him to drive the goods carriage carrying hazardous goods. In the circumstances, the repudiation of the claim by the insurance company cannot be said to be arbitrary in the teeth of violation of the terms of the insurance policy by the respondent no. 1. As such the impugned order is liable to be set aside. In the result, the appeal is allowed by setting aside the order dated 29.03.2007 of the District Forum. Consequently, the complaint is dismissed. There shall be no order as to costs.
8. Hence, the present revision petition.
9. We have heard the learned counsel for the parties and have also gone through the records of the case.
10. Along with the present revision petition, the petitioner has filed an application for condonation of delay of 54 days in filing the present revision petition. The reasons given in the application for condonation of delay are as under:
The petitioner humbly submits that the petitioner did not receive the certified copy of the impugned order from the Registry of State Commission at all. Since there had no communication from the State Commission after the date of reserving the orders, the petitioner from time to time has been contacting his counsel Shri V V N Narayana Rao but they replied that order was not issued by the State Commission.
In the first week of February 2011, the petitioner herein on some other work had gone to Hyderabad, which is about 400 kms. Then, he came to know that the State Commission had pronounced and the order was received by the said counsel around 16th October 2010 itself.
After returning from Hyderabad, the petitioner was affected by Malaria and Jaundice till the end of February 2011 and could not perform his duties normally. A medical certificate of the concerned physician is also annexed hereto, in addition to the affidavit of the petitioner. Hence, it is humbly submitted that the delay was caused due to circumstances beyond the control of the petitioner.
11. Undisputedly, the State Commission passed its order on 09.09.2011 and despatched it on 14.10.2010. The petitioner in his application has admitted that the order was received by his counsel around 16th October 2010. In his application the petitioner has failed to give the specific date of receipt of the order. He has also failed to explain what attempts were made by him to follow-up and obtain a copy of the order during period between 10.09.2010 to 01.02.2011.
12. To support his contention, that after returning from Hyderabad, the petitioner was affected by Malaria and Jaundice till the end of February 2011, he has given a medical certificate dated 28.02.2011 which advices him to take rest for a period of 25 days from 05.02.2011 to 28.02.2011. The petitioner has also filed the prescriptions slip dated 05/11.02.2011 and also the lab report dated 05.02.2011. None of these contain any advice for rest.
13. The petitioner has failed to prove sufficient cause for condonation of delay. It is well settled that sufficient cause for condoning the delay in each case is a question of fact.
The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held 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.
In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:
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 the above circumstances, the application for condonation of delay is not maintainable and the present revision petition is dismissed being barred by limitation with cost of Rs.5,000/- (Rupees five thousand only).
15. Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Welfare Fund as per Rule 10 A of Consumer Protection Rules, 1987, within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.
16. List on 29th April 2013 for compliance.
Sd/-
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[ V B Gupta, J.] Sd/-
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[Rekha Gupta] Satish