State Consumer Disputes Redressal Commission
Max Life Insurance Company Ltd. & ... vs Baldev Singh on 22 August, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Revision Petition No.31 of 2022
Date of institution : 22.04.2022
Reserved on : 09.08.2022
Date of decision : 22.08.2022
1. Max Life Insurance Company Limited, Regd. Office: 419, Bhai
Mohan Singh Nagar, Railmajra, Tehsil Balachaur, District
Nawanshahr, Punjab-144533, through its Manager.
2. Max Life Insurance Company Limited, Head Office: 11th & 12th Floor,
DLF Square, Jacaranda Marg, DLF City, Phase-II, Gurugram-
122002, through its Director/M.D.
....Petitioners/Opposite Parties
Versus
Baldev Singh S/o Lachhman Singh, resident of Kalsian, Raikot, District
Ludhiana.
.... Respondent/Complainant
Revision Petition under Section 47(1)(b) of
the Consumer Protection Act, 2019 against
the orders dated 09.10.2020 and 16.09.2021
passed by the District Consumer Disputes
Redressal Commission, Ludhiana.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the petitioners : Sh. Nitesh Singhi, Advocate Revision Petition No.31 of 2022 2 JUSTICE DAYA CHAUDHARY, PRESIDENT Miscellaneous Application No.1038 of 2022:
This application has been filed by the petitioners for condonation of delay of 467 days in filing the Revision Petition alongwith supporting affidavit.
2. It has been mentioned in the application that the counsel for the applicants/petitioners visited the court in some other case and he came to know that some other case was pending in the District Commission wherein they were proceeded exparte vide order dated 09.10.2020. After taking instruction from the applicants/petitioners, the counsel filed an application to join the proceedings and to file written statement alongwith documents/evidence. The District Commission allowed the petitioners to join the proceedings and to place on record the affidavit and documents but did not set aside the exparte. The said order was passed by the District Commission on 16.09.2021 and thereafter the time was spent in taking approval for filing the revision petition.
3. Learned counsel for the petitioners submits that during the year 2020-2022, the entire World was facing the crisis of Covid-19 Pandemic and the work of all the Institutes, Organization and Government as well as Private Sector was badly affected at large. It is also the argument of learned counsel for the petitioners that due to Covid-19 pandemic and also wrong advice of the counsel, who was contesting the case before the District Commission much time was consumed in the Revision Petition No.31 of 2022 3 process of taking approval for filing appeal/revision petition and the delay of 467 days had occurred which is not willful and intentional. At the end, learned counsel submits that the Hon'ble Supreme Court in Suo-Moto Writ Petition (Civil) No.3 of 2020 by considering the pandemic situation as well as the problem faced/occurred due to the Covid-19 Virus had extended the period of limitation in all the cases filed before the courts.
4. Heard the arguments of learned counsel for the petitioners. We have also gone through the record of the case carefully.
5. Admittedly the District Commission vide order dated 16.09.2021 allowed the petitioner to join the proceedings and to file affidavit and documents but did not set aside the exparte order. Hence the present application was filed alongwith revision petition for condonation of delay of 467 days in filing the revision petition.
6. By considering the submissions and reasons in the application, we find force in the arguments raised by learned counsel for the petitioners.
7. It is pertinent to mention here that the Hon'ble Supreme Court of India, vide order dated 10.01.2022 passed in M.A. No.21 of 2022 in M.A. No.665 of 2021 in Suo Motu Writ Petition (Civil) No.3 of 2020 has extended the period of limitation in filing of the cases and in the light of the above mentioned order passed by the Hon'ble Supreme Court and the Hon'ble President of National Consumer Disputes Redressal Commission has issued the directions vide Office Order No.07 of 2022 dated 14.01.2022 and the relevant part thereof is reproduced as under:- Revision Petition No.31 of 2022 4
II. Computation of delay in such matters in which Limitation expires between 15.03.2020 and 28.02.2022:
The delay in filing the matters, i.e., Revision Petitions, First Appeals, Consumer Complaints, Written Statements, Applications, etc., where limitation is expiring between 15.03.2020 and 28.02.2022, shall be computed in the following manner:
(i) The period from 15.03.2020 to 28.02.2022 shall be excluded for computing limitation.
(ii) Limitation shall be further extended by 90 days from 01.03.2022, i.e. till 29.05.2022.
Since 29.05.2022 is Sunday, the matters filed on 30.05.2022 will be considered to have been filed within limitation. However, if matters are filed on 31.05.2022 or thereafter, then delay shall be computed from 30.05.2022 onwards.
(iii) The matters in which the limitation (provided in the Consumer Protection Act, 1986 or the Consumer Protection Act, 2019, as may be applicable) is expiring during the period from 15.03.2020 to 28.02.2022 (i.e., before 01.03.2022) and such a matter is filed during the same period (i.e., from 15.03.2020 to 28.02.2022) with some delay, such matter shall be treated as having been filed within the limitation.
3. The directions given by the Hon'ble Supreme Court shall not apply to the matters filed/instituted against such orders which shall be passed by the State Commissions on or after 01.03.2022. In such an event, the standard procedure for computation of limitation shall apply."
8. In the present case the District Commission passed the exparte impugned order on 09.10.2020 and the revision petition was filed by the petitioners before this Commission on 22.04.2022. After excluding Revision Petition No.31 of 2022 5 the period from 15.03.2020 to 28.02.2022 and by extending the limitation by 90 days in filing the revision petition from 01.03.2022 till 20.05.2022, as per above judgment of Hon'ble Supreme Court and order passed by the Hon'ble National Commission, the delay of 467 days in filing the revision petition is hereby condoned. Accordingly said M.A. is allowed.
Main case:
9. The present revision petition has been filed by the petitioners/OPs- Max Life Insurance Company Limited under Section 47(1)(b) of the Consumer Protection Act, 2019 (in short the "Act") for setting aside the impugned orders dated 09.10.2020 as well as 16.09.2021 passed by the District Consumer Disputes Redressal Commission, Ludhiana (in short, "the District Commission") whereby the petitioners/OPs were proceed exparte and further the application filed by them under Section 40 of the Act was also dismissed.
10. Briefly, as per the averments mentioned/made in the complaint by the complainant filed before the District Commission are that on 07.08.2017 complainant's wife Karamjit Kaur purchased a life insurance policy bearing No.406856542 from OPs through Axis Bank Limited for a period of five years by paying a premium of Rs.90,000/-. Smt. Karamjit Kaur expired on 30.07.2019 at Life Care Hospital, Raikot. Thereafter, the complainant being the nominee of the deceased lodged the claim to the OPs but the same was repudiated vide letter dated 30.11.2019 without assigning any reason and also transferred the amount of Rs.1,80,000/-, Revision Petition No.31 of 2022 6 the amount of two premiums, through RTGS in the account of the complainant instead of total claim amount. Being aggrieved by the action of the OPs, the complainant filed the complaint before the District Commission against the petitioners/OPs.
11. Notices were issued to the OPs for 09.10.2020 but none appeared on behalf of OPs and they were proceeded ex-parte vide order dated 09.10.2020, which is reproduced as under:-
"Summons sent to OP1 and OP2 through registered post on 05.08.2020, but none appeared for OP1 and OP2. Period of 30 days has elapsed but neither the registered cover nor AD received back either served or unserved. As such, after drawing presumption of due service and after finding that none appeared for OP1 and OP2, OP1 and OP2 are proceeded against exparte.
Now case is adjourned to 28.12.2020 for exparte evidence of complainant by way of affidavit and documents. List of witnesses to be summoned, if any, be submitted within 2 days with Ahlmad of this Commission. Also for awaiting presence of complainant for that date."
Thereafter, the OPs filed an application to join the proceedings, which was allowed by the District Commission vide order dated 16.09.2021 which is reproduced as under:-
"Heard on the application filed on behalf of OPs seeking permission to join the proceedings. As per the record, the OPs were proceeded against exparte vide order dated 09.10.2020.
The complainant filed reply to the said application stating that the OPs cannot join the proceedings without setting aside the exparte order. Moreover, there is no provision in Consumer Protection Act for setting aside the exparte proceedings and as Revision Petition No.31 of 2022 7 such, the application of not maintainable and deserves to be dismissed.
It is well settled that exparte proceedings cannot set aside, but permission to join the proceedings can definitely be granted. Accordingly, the application is allowed to join the proceedings from the stage the complaint is pending at.
For submission of affidavits and documents by the parties in the shape of evidence, if any and for arguments, to come up on 10.12.2021."
12. Aggrieved by said orders, the petitioners/OPs have filed the present Revision Petition by raising a number of grounds. Learned counsel for the petitioners/OPs submits that the District Commission proceeded the petitioners/OPs exparte vide order dated 09.10.2020. The OPs filed an application which was allowed vide order dated 16.09.2021 by allowing them to join the proceeding and to submit affidavits and documents in the shape of evidence. Learned counsel further submits that the District Commission has passed the impugned order without considering that the evidence could not be considered without pleadings/written statement. Learned counsel further submits that the District Commission has passed the impugned orders without considering the reasons and situations arisen due to the Covid-19 Pandemic in the World and also without following the settled provisions of Law. Learned counsel further submits that petitioners/OPs were not served and also that in essence of proper and legal valid service and concerned legal officers of the petitioners were not aware about the proceedings of the case pending before the District Commission. Learned counsel further submits Revision Petition No.31 of 2022 8 that non-appearance of the counsel on behalf of OPs No.1 and 2 was not intentional and the litigant should not suffer due to the mistake of any person. The complainant filed the complaint against the petitioners/OPs before the District Commission was required to be contested by submitting written statement and documents in support of the same failing which the complainant could have taken the undue advantage of the process of law and would have obtained a favourable order by concealing the true and material facts. Learned counsel submits that the petitioners/OPs be granted an adequate opportunity to file the written statement to the complaint alongwith affidavit and relevant documents by setting aside impugned orders dated 09.10.2020 and 16.09.2021.
13. Heard the arguments raised by learned counsel for both the parties. We have also carefully perused the orders dated 09.10.2020 and 16.09.2021 passed by the District Commission which are under challenge.
14. The petitioners are aggrieved by the orders passed by the District Commission that they were allowed to join the proceeding and to submit affidavits and documents in the shape of evidence vide order dated 16.09.2021 but without setting aside the exparte order. Without filing the written statement, the evidence cannot be considered. It is also the argument of learned counsel for the petitioners that non-appearance of the counsel on behalf of OPs No.1 and 2 was not intentional and the litigant should not suffer because of mistake of other person or the counsel.
Revision Petition No.31 of 2022 9
15. It is a settled proposition of law that party should not suffer because of fault of the counsel as has been held by the Hon'ble Supreme Court in judgments of cases "Rafiq & Another vs. Munshilal & Another"
AIR 1981 SC 140 and "Smt. Lachi & others vs. Director of Land Records & Otheres" AIR 1984 SC 41. The Hon'ble Supreme Court in above cases observed as under:
"What is the fault of the party who having done everything in his power expected of him, would suffer because of the default of his advocate.... The problem that agitates us is whether it is proper that a party should suffer for the inaction, deliberate omission, or misdemeanour of his agent.... We cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted."
The Hon'ble Supreme in judgment of case "Salil Dutta v. T.M. & Mc (P) Ltd." [1993] 1 SCR 794, has held as under:
"It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult."
16. The Hon'ble Supreme Court in judgment of case "N. Mohan Vs. R. Madhu", Civil Appeal No.8898 of 2019, decided on 21.11.2019 held as under:-
13. Considering the scope of Order IX Rule 13 CPC and the statutory right to appeal under Section 96(2) CPC, after referring to Bhanu Kumar Jain, in Bhivchandra Shankar More, this Court held as under:- "11. It is to be pointed Revision Petition No.31 of 2022 10 out that the scope of Order 9 Rule 13 CPC and Section 96(2) CPC are entirely different. In an application filed under Order 9 Rule 13 CPC, the Court has to see whether the summons were duly served or not or whether the defendant was prevented by any "sufficient cause" from appearing when the suit was called for hearing. If the Court is satisfied that the defendant was not duly served or that he was prevented for "sufficient cause", the court may set aside the ex parte decree and restore the suit to its original position. In terms of Section 96(2) CPC, the appeal lies from an original decree passed ex parte. In the regular appeal filed under Section 96(2) CPC, the appellate court has wide jurisdiction to go into the merits of the decree. The scope of enquiry under two provisions is entirely different. Merely because the defendant pursued the remedy under Order 9 Rule 13 CPC, it does not prohibit the defendant from filing the appeal if his application under Order 9 Rule 13 CPC is dismissed." 12. The right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground that the application filed by him under Order IX Rule 13 CPC has been dismissed. In Bhanu Kumar Jain v. Archana Kumar and Another (2005) 1 SCC 787, the Supreme Court considered the question whether the first appeal was maintainable despite the fact that an application under Order IX Rule 13 CPC was filed and dismissed. Observing that the right of appeal is a statutory right and that the litigant cannot be deprived of such right, in paras (36) and (38), it was held as under:- 36. ... A right to question the correctness of the decree in a first appeal is a statutory right. Such a right shall not be curtailed nor 9 shall any embargo be fixed thereupon unless the statute expressly or by necessary implication says so. (See Deepal Girishbhai Soni v.
United India Insurance Co. Ltd. (2004) 5 SCC 385 and Chandravathi P.K. v. C.K. Saji (2004) 3 SCC 734.) .............."
17. The Order 9 Rule 7 of the Code of Civil Procedure (CPC) is also relevant in the present context which provides jurisdiction to the Court to set aside ex parte order by imposing costs, is reproduced as under:
"7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.--
Where the Court has adjourned the hearing of the suit, ex parte, and the defendant, at or before such hearing appears and assigns good Revision Petition No.31 of 2022 11 cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance."
18. To attract the provisions of Order 9 Rule 7 of CPC, the petitioner is required to show not only bonafide reason for its failure to appear in the Court on the date fixed but also to show as to what injustice has been caused to it.
19. While relying upon judgment of the Hon'ble Supreme Court "Sangram Singh v. Election Tribunal Kotah & Anr." AIR 1955 Supreme Court 425, the Hon'ble Punjab and Haryana High Court in a case titled as "Smt. Sahib Kaur Vs. Sukhbir Singh & others" Civil Revision No.1700 of 2004, decided on 25.05.2016 (Punjab & Haryana High Court) held in para 8 as follows:-
"8. In the circumstances, even if the ex parte order was not set aside, the petitioner ought to have at least been allowed to join the proceedings at the stage at which they were. In any case, in the peculiar facts and circumstances of the case and particularly the fact that the learned trial Court considered the delay in filing the application seeking setting aside the ex parte proceedings to be belated, it is considered just and expedient that the ex parte order should be set aside so as to enable the petitioner to file her written statement and contest the suit of the plaintiff on merits."
20. The Hon'ble Supreme Court of India in judgment of case "G.P. Srivastava Vs. Shri R.K. Raizada & others" Special Leave Petition (Civil)17942-43 of 1999, decided on 03.03.2000 has held as under:-
"Even if the appellant was found to be negligent, the other side could have been compensated by costs and the ex-parte decree set aside on such other terms and conditions as were deemed proper by the Trial Court. On account of the unrealistic and technical approach adopted by Revision Petition No.31 of 2022 12 the courts, the litigation between the parties has unnecessarily been prolonged for about 17 years. The ends of justice can be met only if the appellant- defendant is allowed opportunity to prove his case within a reasonable time. Under the circumstances, the appeal is allowed by setting aside the order of the High Court and of the Trial Court. The ex- parte Judgment and decree passed against the appellant is set aside on payment of costs of Rs.5,000/- to the other side. The Trial Court is directed to afford the appellant opportunity to prove his case and expedite the disposal of the suit preferably within a period of six months from the date of receipt of the copy of this order."
21. In view ratio of law laid down by the Hon'ble Supreme Court in above noted judgments and also in the interest of justice and by considering the facts of the case, the petitioners/OPs deserve to be granted one more opportunity to contest the case but subject to payment of cost. Moreover no prejudice would be caused to respondent/complainant in case the petitioners are allowed to join the proceedings before the District Commission.
22. In view of above detailed discussion, we deem it appropriate to remand the case with a direction to the District Commission to allow the petitioners/OPs to contest the case by giving them an opportunity to file written reply, affidavit and documents. Accordingly, the Revision Petition is allowed and the orders dated 09.10.2020 and 16.09.2021 passed by the District Commission are set aside subject to costs of Rs.10,000/-. Out of which, the amount of Rs.5000/- is payable to respondent/complainant and remaining amount of Rs.5000/- is required to be deposited in the Consumer Legal Aid Account of this Revision Petition No.31 of 2022 13 Commission. The District Commission is directed to allow the petitioners/OPs to file written statements alongwith documents/evidence and also to the complainant to file replication and documents, if any, in support of their contentions. We remand the case to the District Commission for deciding the same on merits, as referred above.
23. The petitioners are directed to appear before the District Commission on 21.09.2022. The copy of this order be also sent to the parties as well as to the District Commission, Ludhiana. The main case is decided as such the pending application(s), if any, is disposed of accordingly.
24. The revision petition could not be decided within the stipulated period due to heavy pendency of Court cases and due to pandemic of Covid-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER August 22, 2022.
(MM)