National Consumer Disputes Redressal
Anil Kumar Sharma vs Chairman & Managing Director, United ... on 2 July, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 615 OF 2013 (Against the Order dated 05/12/2011 in Complaint No. 49/2009 of the State Commission Andhra Pradesh) 1. ANIL KUMAR SHARMA S/O. R.P. SHARMA, AUTHORIZED REPRESENTATIVE OF RAMA SPINNERS PRIVATE, LIMITED, O/A RAMA TOWERS, 2ND FLOOR, 5-4-83, TSK CHAMBERS, M.G. ROAD, SECUNDERABAD-500003 ANDHRA PRADESH ...........Appellant(s) Versus 1. CHAIRMAN & MANAGING DIRECTOR, UNITED INDIA INSURANCE CO. LTD. & ANR. (REGD & HEAD OFFICE:24, WHITES ROAD, CHENNAI-600014 TAMIL NADU 2. M/S. UNITED INDIA INSURANCE CO. LTD., REP. BY ITS REGIONAL MANAGER, UNITED INDIA TOWERS, 3-5-817& 818. BASHEERBAGH, HYDERABAD-500001 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. SURESH CHANDRA, MEMBER For the Appellant : Mr. G.L.N. Murthy, Advocate with Mr. Gopal Aggarwal, Managing Director of Appellant Company For the Respondent :
Dated : 02 Jul 2015 ORDER PER MR. SURESH CHANDRA, MEMBER PRONOUNCED ON : 02nd July, 2015 ORDER
This appeal has been filed by the appellant/complainant challenging the order dated 05.12.2011 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in CC No. 49 of 2009 whereby the State Commission dismissed the complaint filed by the appellant/complainant, against the opposite parties who are respondents herein. Alongwith his appeal, the appellant has also filed an application dated 20.08.2013 for condonation of delay, supported by an affidavit of the same date. Later on, the appellant has filed an additional affidavit dated 11.08.2014 in support of his application for condonation of delay. In his application, the appellant has mentioned 590 days as period of delay for which condonation has been sought. However, as per the Office Note, there is a delay of 601 days. Be that as it may, we have heard learned Shri G.L.N. Murthy, Advocate for the appellant on the application for condonation of delay.
2. The learned counsel submitted that the delay in question was neither intentional nor deliberate and as such, the same deserves to be condoned keeping in view the bonafide reasons stated in detail in the additional affidavit of the appellant.
3. We have perused the application and also the two affidavits filed by the appellant in support of the application. The application itself does not give any explanation or reason for condoning the delay for 590 days. The reasons are given in the affidavit. The initial affidavit dated 20.08.2013 being cryptic, in the interest of justice, we have considered the additional affidavit dated 11.08.2014. Reasons for the delay in filing the appeal, have been narrated in paras 3 & 4 of the additional affidavit, which we consider it fair and just to reproduce:
"3.That I say and submit that the Appellant has not received the impugned Final Order dated 05.12.2011 from the Registry of the Hon'ble A.P. State consumer Disputes Redressal Commission, Hyderabad (for short "the Learned State Commission"). I further say and submit that the advocate for the Appellant before the Learned State Commission had left Hyderabad on promotion as a Legal Counsel to CBI Court at Bangalore. I also say and submit that, having no knowledge of passing of the above Final Order dated 05.12.2011 by the Learned State Commission there was no occasion for the Appellant to file the present Appeal earlier. I further say and submit that the Appellant bonafide under the impression that the complaint filed by it is pending before the Learned State Commission which is evident from the letter dated 25.06.2013 written by the Appellant to the Superintendent of the Learned State Commission, a true copy of which is annexed hereto as Annexure-A for ready reference. I also say and submit that in the aforesaid letter dated 25.06.2013, the Appellant requested for a copy of the Final Order, if any, passed by the Learned State Commission in the matter. I further say and submit that, thereafter, the appellant sent couple of Advocates for the certified copy of the Final Order, which could not be made available, due to the concerned complaint file missing and was not readily traceable in the Registry of the Learned State Commission because of which the Final Order dated 05.12.2011 could not be made available to the Appellant in the absence of which no Appeal could be filed by the Appellant before this Hon'ble Commission.
4. That I say and submit that after the complaint file was traced by the Registry, immediately, on 05.08.2013, the Appellant applied for a certified copy which stands delivered to the Appellant on 16.08.2013 and the above First Appeal came to be filed on 21.08.2013 which shows the due diligence on the part of the Appellant. I further say and submit that had the Appellant aware of the impugned Final Order earlier, the Appellant would have taken immediate steps as has been taken now."
4. The appellant has also placed reliance on two judgments of the Hon'ble Apex Court referred to in paras 7 & 10 of the additional affidavit, which are also reproduced as under for better appreciation of the reasons/grounds on which the delay has been sought to be condoned:
"7. That I say and submit that it is settled law that the period of limitation starts from the date of knowledge. It is submitted that the even though the certified copy of the impugned Final Order dated 05.12.2011 records that free copy was issued on 24.12.2011, as the same was not received by the Appellant, the Appellant could not have any knowledge about the same, hence, could not have taken any steps as against the impugned Final Order of the Learned State Commission. Reliance is placed on the Judgment of Hon'ble Supreme Court of India in the case of the Assistant Transport Commissioner, Lucknow Vs. Nand Singh reported as AIR 1980 SC 15, wherein the Hon'ble Apex Court at para 2, held as under:-
"The date of communication of the order will be starting point of limitation for filing an appeal..... but ordinarily and generally speaking the order would be effective against the person affected by it only when it comes to his knowledge either directly or constructively, otherwise not."
10. That I say and submit that the law on condonation delay is very liberal and in this regard reliance is placed on the judgment of the Hon'ble Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy reported as (1998) 7 SCC 123 (Paras 9, 10, 11, 12 & 13) wherein the Hon'ble Supreme court, inter alia, held as under:-
"10. .....The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit fixed for approaching the court in different situation is not because on the expiry of such time a bad cause would transform into a good cause."
"11. Rules of limitation are meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The object of providing a legal remedy is to repair the damage cause by reason of legal injury ......"
It has further been held in the aforesaid decision that the word "sufficient cause" should receive a liberal construction so as to advance substantial justice. I further say and submit that the fact that the Appellant not received the impugned Final Order earlier and filed the present First Appeal within the prescribed time from the delivery of the Final Order by the Registry, the same, constitutes sufficient cause for condonation of delay in the present First Appeal. I also say and submit that in the above cited judgment, the Hon'ble Apex Court condoned the delay of 883 days."
5. It would be seen from the aforesaid that the main reason for the delay of 590 days, according to the appellant, is on account of his counsel leaving Hyderabad on promotion as Legal Counsel to CBI Court at Bangalore because of which the appellant had no knowledge of passing of above final order dated 05.12.2011 by the State Commission. It has been further said that he was under bonafide impression that the complaint filed by him was pending, in respect of which he has drawn our attention to his letter dated 25.06.2013 addressed to the Superintendent of the State Commission, a copy of which has been placed on record alongwith the additional affidavit. On careful consideration of the submission made by the appellant, we find it extremely difficult to accept it as true. The impugned order was passed on 05.12.2011 and the appellant thought it necessary to address a letter on 25.06.2013 to the Superintendent of the State Commission regarding the status of his complaint. No mention at all has been made by the appellant as to whether he contacted his counsel before the State Commission during the period after filing his complaint (bearing no. 49/2009) in August, 2009 till the impugned order came to be passed on 05.12.2011 and from the date of the order till he chose to write the letter on 25.06.2013 directly to the Superintendent of the State Commission. If he did not inquire at all about the fate of his complaint which, in his own words used in the letter dated 25.06.2013, "was of very importance and a high value", it was absolutely essential for him to explain in the application of delay as to how he could afford to forget about his complaint for such a long period. This is unbelievable and if it is true, it would establish beyond any iota of doubt that the appellant has not at all acted with due diligence and sense of urgency in dealing with such an important matter of the company which involves high stake. There is yet another aspect which becomes clear to us from the additional affidavit and that is regarding the knowledge about the promotion of Legal Counsel. It is not stated anywhere as to how and when the appellant came to know about the promotion of his counsel and departure to Bangalore. Even if the counsel had gone to Bangalore, the appellant would have known his contact mobile number and there is no explanation as to why he did not contact him. It is also intriguing to see as to why he suddenly chose to write to the State Commission on 25.06.2013 only and why not before. No explanation or clarification is forthcoming regarding these important aspects while seeking condonation of inordinate delay of 590 days.
6. In his letter dated 25.06.2013, addressed to the Superintendent of the State Commission, the appellant has mentioned that he had sent 2-3 advocates subsequent to the departure of his earlier counsel Shri G. Venkata Swamy Goud, from Hyderabad on promotion to Bangalore. Not only he has not mentioned anything to throw light as to how and when he came to know about Shri Gaud's departure to Bangalore, he has also not given any information as to which advocate he had sent to the State Commission, who gave him to understand that the file of his case was missing. While we are not aware as to when the so called letter of 25.06.2013 was actually received by the concerned Superintendent of the State Commission because there is no such acknowledgement of the dispatch or receipt filed by the appellant along with his affidavit, it is seen from the certified copy that following information is contained in the endorsement on the last page of the certified copy of the impugned order:
"COPY APPLICATION NO. 585/2013 Date of issue of free copy: 24/12/2011 Date of Copy Application: 5/8/2013 Date when Copy Made Ready 8/8/2013 Date of Delivery: 16/8/2013"
7. According to the submission of the appellant in his affidavit, his "2-3 advocates", sent by him to the Commission reported that his case-file was missing. Now the endorsement on the certified copy would show that not only free copy was supplied, may be to appellant's counsel, on 24.12.2011 but the appellant got the certified copy on 16.08.2013, i.e. , within 11 days of the filing of his application for certified copy. It only indicates that the case file in question, was very much available and a certified copy of the impugned order was supplied in a reasonable period of 11 days.
8. In view of the above discussion, we have no manner of doubt in our mind that the story put forth by the appellant to explain the reasons to justify the delay, is nothing but pure concoction by way of an afterthought, just to somehow explain the delay while seeking its condonation. We are not at all convinced with such unbelievable excuses which do not stand the scrutiny of reason. It is, thus, clear to us that the appellant has not acted with due care and sense of priority while filing his appeal.
9. It is well settled that 'sufficient cause" for condoning the delay in each case is a question of fact.
10. 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."
11. In "R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108", Apex Court has 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."
12. Ld. Counsel for the appellant has reiterated and referred to the judgments in the two cases (supra) mentioned by the appellant in his additional affidavit. We are quite conscious of the ratio laid down by the Hon'ble Supreme Court in the aforesaid cases. It is also well settled that the period of delay sought to be condoned is not material in case there is "sufficient case" to justify the delay and its condonation by the court. As stated above, each case has to be decided on its own merits. The provisions of law which prescribe specific period of limitation for filing complaints, appeals and revision petitions, will have no meaning in case there is delay in filing such complaints, appeals or revision petitions and the same is condoned without taking into consideration as to whether the explanation for such delay really constitutes "sufficient cause" justifying the delay in question.
13. Having carefully considered the explanation given by the appellant in his affidavit, as stated above, we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon'ble Supreme Court in a recent judgment of Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the court has to keep in mind that 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 the appeals and revisions, which are highly belated are entertained. Relevant observations are 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."
14. In view of the above, we are not inclined to condone the delay of 590/601 days and accordingly, we dismiss the application in the appeal, filed for condonation of delay.
15. Even otherwise, we do not find any merit in this appeal, filed by the appellant. We have perused the record.
16. Briefly stated, the complainant/appellant had insured his cotton stock and building, plant and machinery under two separate policies. During the period of cover, a fire accident took place, for which the appellant lodged a claim with the respondent/insurance company, which appointed surveyor and loss assessors, who submitted a final survey report on 08.09.2008, assessing the loss at Rs.29,72,164/- in respect of the damaged cotton and Rs.2,95,253/- net salvage. The complainant accepted a cheque for Rs.25,50,000/- from the respondent/insurance company as part payment, under protest and thereafter, approached the respondent for further release of the balance but they informed him that the amount paid aforesaid was full and final and no further payment would be considered under the claim. Aggrieved by this, appellant/complainant filed the consumer complaint in question which was dismissed by the State Commission by its impugned order.
17. The State Commission in its well-reasoned and speaking order has made the following observations, which we consider fair and just to reproduce:-
"7. ..... Similarly there is no dispute that the complainant had received Rs.25,50,000/- through a cheque no. 895082 dated 04.11.2008 drawn on Indus Ind Bank Limited. The contention of the complaint is that he received the said cheque under protest and without prejudice to his remaining claim whereas the opposite parties contend that the complainant received the amount of Rs.25,50,000/- in full and final settlement of the claim pertaining to the accident aforesaid basing on the said policies and that the complainant duly executed Settlement Intimation Voucher dated 04.04.2008 (Ex. B2) sand that it also contains signature of the Managing Director of the complainant spinning mill. There is no denial from the complainant that the said document contains signature of its Managing Director but had taken a plea that on blank voucher such a signature was obtained by opposite parties. Where a party takes a plea that on blank preforms his signatures were obtained and thereafter the contents were engraved to suit the case of the other side it is for him to prove the said aspects. Thus, heavy burden is cast upon the complainant in this case to prove that the opposite parties obtained signatures of the said Managing Director of the complainant on blank proforma of Ex. B2 but he did not discharge the said burden. Had the signatures were so obtained on blank papers he would have reported to the police or in the competent court of law alleging that under such and such circumstances signatures on blank proformas were taken. The complainant did not do so in this case. Even he did not give a notice immediately after receiving the said cheque but leisurely Ex. A18 dated 07.11.2008 and A-19 letter dated 10.11.2008 were addressed to the opposite parties designing the said untenable pleas after thought and thereafter made futile correspondence. The conduct of the complainant in maintaining silence in the said aspect for a considerable time improbabilizes his defence. Ex. B2 discloses that the complainant received Rs.25,50,000/- from the opposite parties in full and final discharge of its claim upon the above said policies. It is a computer generated voucher and therefore the contention of the complainant that the blank proforma signature of its Managing Director was obtained and thereafter it was converted into Ex. B2 could not be appreciated. Because men may lie but the circumstances do not.
7. In a decision reported in II (2010) CPJ SC between Sri Venkateswara Syndicate, Appellate Vs. Oriental Insurance Company Ltd. and another it was held where surveyors appointed under the provisions of Insurance Act, their report to be given due importance and that sufficient grounds to be given to disagree with the assessment made and that insurer cannot go on appointing surveyor's without assigning reasons for that. In this case, M/s. Asawa & Co. were duly appointed and as seen from the Ex. A28 report they have taken all precautions in assessing the loss and therefore question of rejecting the said report does not arise. In 1994 SCC Supp (III SCC) 126 between M/s. P.K. Ramaiah and Co-Appellants, Vs. Chairman and M.D., National Thermal Power Corporation, Respondent, it was held that when voluntarily and unconditional written acceptance of payment in full and final settlement of the contract is made subsequent claim for further amount in respect of the same work is not permissible and that it cannot be an arbitral dispute. Similar view was taken in another decision reported in 1995 Supp (III SCC) 324 between Nathani Steels Limited, Vs. Associated Constructions. The said decisions support the opposite parties. There are no circumstances in this case to come to a conclusion that Ex. B2 was a forced consent. In the circumstances of the case, the designed correspondence made by the complainant from 07.11.2008 to 17.03.2009 i.e. Ex. A18, A19 to A27, A29 and also the postal acknowledgments marked pertaining to the said correspondence are not helpful to the complainant. In view of the above discussion, we are of the opinion that the complaint is devoid of merits and liable to be dismissed."
18. We agree with the view taken by the State Commission and do not find any reason or basis, which would justify a different view. In the circumstances, we do not find any substance in this Appeal.
19. The Appeal filed by the appellant, thus, is dismissed, both as barred by limitation and on merits, but with no order as to costs.
......................J V.B. GUPTA PRESIDING MEMBER ...................... SURESH CHANDRA MEMBER