State Consumer Disputes Redressal Commission
Care Health Insurance Limited vs Kamal Kumar on 9 October, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.392 of 2024
Date of Institution : 13.07.2024
Reserved on : 30.09.2024
Date of Decision : 09.10.2024
1. Care Health Insurance Limited (Formerly known as Religare
Health Insurance Company Limited) Religare Health Insurance
Head Office 5th Floor, 19 Chawla House, Nehru Place, New
Delhi.
2. Care Health Insurance Limited (Formerly known as Religare
Health Insurance Company Limited), The Branch Manager,
Religare Health Insurance, 1st Floor, Taneja Tower, SCO 28,
Ranjit Avenue, Amritsar.
Filing By & From : Care Health Insurance Limited, Registered
Office Vipul Tech Square Tower-C, 3rd Floor, Golf Course
Road, Sector-43, Gurugram-122009 (Haryana), through
Authorized Signatory.
........Appellants/Opposite Party No.1 & 2
Versus
1. Kamal Kumar son of Mohan Lal, resident of H.No.14-B, Gali
No.2, Outside Gate Hakima, Fateh Singh Colony, Amritsar.
9814571081.
.....Respondent No.1/Complainant
2. The Branch Manager, Union Bank of India, Ranjit Avenue
Branch, Amritsar.
.....Respondent No.2/Opposite Party No.3
Appeal under Section 41 of Consumer
Protection Act, 2019 to challenge the
orders dated 28.10.2022 passed in CC
No.526 of 2021 by the District Consumer
Disputes Redressal Commission,
Amritsar.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Mr. Vishav Kant Garg, Member 2 First Appeal No.392 of 2024 Present:-
For the Appellants : Sh. Raj K. Narang, Advocate
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 JUSTICE DAYA CHAUDHARY, PRESIDENT:-
The Appellants/OPs No.1 and 2 i.e. Care Health Insurance Limited & another have filed the present Appeal under Section 41 of the Consumer Protection Act, 2019 (in short the 'Act') to set aside the impugned order dated 28.10.2022 passed in CC No.526 of 2021 by the District Consumer Disputes Redressal Commission, Amritsar (in short the "District Commission") whereby the CC had been disposed off with certain directions.
2. Briefly, the facts of the case which are necessary for disposal of the present Appeal are that the Respondent/Complainant had obtained loan facility from the respondent No.1 of Rs.13,00,000/- approximately and at that time the loan was got insured by Respondent No.2 from the Appellants. Respondent No.1 had lost both the eye sight and Civil Surgeon, Amritsar had issued a permanent disability certificate to the Complainant to the extent of 60% on 22.01.2021. However, Respondent No.1 was not in a position to return the loan amount and he requested Respondent No.2 to adjust the loan amount from the Appellants. However, the claim was 3 First Appeal No.392 of 2024 repudiated by the Appellants. Due to this reason, the Complainant became defaulter in paying the loan amount. Thereafter, the Respondent/Complainant filed the Complaint alleging certain allegations of 'deficiency in service' as well as harassment. The Complaint was filed with the following prayer :-
(i) Opposite Parties No.1 & 2 be directed to clear the loan amount of the Complainant with Opposite Party No.3 from the health Insurance Policy obtained by the Complainant ;
(ii) Opposite Parties be also directed to pay compensation of Rs.1,00,000/- to the Complainant.
(iii) Litigation expenses to the tune of Rs.30,000/- may also be awarded to the Complainant.
In support of his averments, the Complainant had filed his affidavit Ex.CW-1/A, the copy of disability certificate Ex.C-1, the copy of ID card of Disability Ex.C-2, the copy of policy Ex.C-3 and the copy of identity card Ex.C-4.
3. Upon issuing notices to the OPs, only OPs No.1 and 2 had appeared and filed their written versions denying the averments of the Complainant and prayed for dismissal of the Complaint. In support of their averments OPs No.1 & 2 had placed on record the affidavit of Saurav Manager Legal Ex.OP1,2/1, the copy of authority letter Ex.OP1,2/2, the copy of policy Ex.OP1,2/3 and the copy of terms and conditions Ex.OP1,2/4. However, OP No.3 was proceeded exparte vide order dated 12.01.2022.
4First Appeal No.392 of 2024
4. By considering the averments made in the Complaint and reply thereof filed by the OPs No.1 and 2, the Complaint filed by the Complainant was disposed off by the District Commission with observations as mentioned in para No.9 of the impugned order. The relevant part i.e. para No.9 is reproduced as under:-
"9. From the perusal of the file it is revealed that complainant still has not deposited the documents with opposite parties No.1 & 2 which is very much necessary to settle the claim of the complainant. The complainant is directed to submit the documents with the opposite parties NO.1 & 2 within 15 days and thereafter receiving the documents opposite parties No.1 & 2 are directed to settle the claim of the complainant within 30 days from the receipt of documents ; failing which opposite parties No.1 & 2 shall be liable to pay Rs. 5000/- per day as compensation to the complainant. Opposite party No.3 is ex- parte from whom the complainant had obtained loan facility of Rs. 13 lacs . It is argued by the counsel for the complainant that opposite party No.3 is initiating the auction proceedings against the complainant. In the interest of justice till the opposite parties No.1 & 2 decides the claim of complaint, opposite party No. 3 is restrained for initiating any proceedings civil/criminal against CC. 526 of 2021 7 the complaint. If the complainant is not satisfied with the decision of the opposite parties, he is at liberty to file fresh complaint on the same cause of action. With the aforesaid observations, the complaint is disposed off. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this commission."5 First Appeal No.392 of 2024
5. Aggrieved by the said order dated 28.10.2022 passed by the District Commission, the Appellants/OPs No.1 and 2 have filed the present Appeal before this Commission under Section 41 of the Act.
M.A. No.890 of 2024
6. There is a delay of 576 days in filing of the Appeal. M.A. No.890 of 2024 has been filed for condonation of delay of 576 days which is supported by an Affidavit.
7. Sh. Raj K. Narang Advocate, learned Counsel for the Appellant has submitted that the certified copy of the order dated 28.10.2022 was provided on 01.11.2022. The Applicants/Appellants were in constant touch with the Amritsar Branch for providing the documents as mentioned in the written statement but the same were not received on 11.11.2022. Later on the Applicants/Appellants had issued letter dated 12.05.2024 to the Respondent No.1 for providing the documents and thereafter the Applicants had issued letter dated 12.05.2024 to Respondent No.1 to supply the documents and thereafter during proceedings of the execution, the Respondent No.1 had provided the documents which has been admitted by their Counsel in the statement and the Appellants had also issued letter dated 20.07.2023 qua non-registering their claim. Further it has been mentioned that the Applicants were not aware about the formal rejection of the objections till 15.05.2024 as objections were rejected by the District Commission on 05.04.2024. The local Counsel was 6 First Appeal No.392 of 2024 insisting to take further step for compliance and the Appellants were constantly asking the local Counsel about the rejection of the Execution Application as documents were not supplied which were supposed to be supplied. Further, it has been mentioned that only on 16.06.2024, the Applicants came to know that warrants of attachment had been issued and bailable warrants were issued as informed by the Counsel. Thereafter, the Management had taken the decision to file the present Appeal and asked the local Counsel to provide the copies of the records of lower court. The copy of the order was received only on 06.07.2024 and the record was applied on 01.07.2024 and the same was provided on 15.07.2024. Accordingly, the delay had occurred in filing the Appeal due to the reasons that the time was consumed in arranging the necessary documents and seeking necessary permissions and thereafter in drafting the Appeal and also to complete certain necessary formalities. A period of 576 days had occurred which is stated to be neither intentional nor willful but for the reasons as mentioned above. Learned Counsel has prayed for condonation of delay of 576 days in filing of the Appeal as no harm would be caused to the Respondent/Complainant.
8. We have heard the oral arguments raised by learned Counsel for the Applicants/Appellants at the preliminary stage and have also gone through the record of the case.
9. Admittedly, the Complainant filed the Complaint before the District Commission. Upon issuing notice, OPs No.1 and 2 had 7 First Appeal No.392 of 2024 contested the Complaint. After hearing the oral arguments and on going through the contents of the Complaint and reply thereof the Complaint was disposed off.
10. The Applicants/Appellants have submitted in the Application that the documents were not provided/supplied for settlement of the claim till 11.11.2022. In the next line, the Applicants has submitted that they had issued letter dated 12.05.2024 to Respondent No.1/Complainant for providing the documents. It is pertinent to mention that the Complaint was disposed off by the District Commission on 28.10.2022 and the letter was issued by the Applicants on 12.05.2024 after a huge delay to the Respondent No.1/Complainant for demanding the documents to settle the claim. However, no explanation is there as to why the Applicants had slept over the matter for a long period whereas each and every day delay is required to be explained. The other reasons as mentioned in the Application are not convincing. The Applicants had come into action only when their objections were rejected and warrants of attachment were issued. No convincing reasons are there to condone the huge delay of 576 days in filing of the Appeal whereas free certified copy of the impugned order was provided to the Applicants/Appellants on 01.11.2022 as has been admitted in para No.2 of the Application but no efforts were made by the Applicants to file the Appeal well in time and it was filed on 13.07.2024 after a delay of 576 days without mentioning any sufficient reason and cause. In view of above, the averments as made in the Application and the stand taken therein are 8 First Appeal No.392 of 2024 not convincing and the Application for condonation of delay has been filed in a casual manner. As such there is no force in the contention of the Applicant/Appellant.
11. The Hon'ble Supreme Court in the case of Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation & Anr. Civil Appeal No.2075 of 2010 decided on 26.02.2010 had rejected/dismissed the Application for condonation of delay of 4 years in filing an Application in setting aside an ex parte decree on the ground that the explanation given for condonation of delay was not satisfactory. The relevant portion of said judgment as mentioned in Para-13 & 14 is reproduced as under:
"13. From what we have noted above, it is clear that the Law Department of Respondent No.1 was very much aware of the proceedings of the first as well as the second suit. In the first case, Ms. Rekhaben M. Patel was appointed as an advocate and in the second case Shri B.R. Sharma was instructed to appear on behalf of the Respondents, but none of the officers is shown to have personally contacted either of the advocates for the purpose of filing written statement and preparation of the case and none bothered to appear before the trial Court on any of the dates of hearing. It is a matter of surprise that even though an officer of the rank of General Manager (Law) had issued instructions to Ms. Rekhaben M. Patel to appear and file vakalat as early as in May 2001 and Manager (Law) had given vakalat to Shri B.R. Sharma, Advocate in the month of May 2005, in the Application filed for condonation of delay, the Respondents boldly stated that the Law Department came to know about the ex parte decree only in the month of January/February 2008. The Respondents went to the extent of suggesting that the parties may have arranged or joined hands with some employee of the corporation and that may be the reason why after engaging advocates, nobody contacted them for the purpose of giving instructions for filing written statement and giving appropriate instructions which resulted in passing of the ex parte decrees. In our view, the above statement contained in para 1 of the Application is not only incorrect but is ex facie false and the High Court committed grave error by condoning more than four years' delay in filing of Appeal ignoring the judicially accepted parameters for exercise of discretion under Section 5 of the Limitation Act.
14. In the result, the Appeal is allowed. The impugned order of the High Court is set aside and the Application for condonation of delay filed by the Respondents is dismissed. As a corollary, the Appeal 9 First Appeal No.392 of 2024 filed by the Respondents against judgment and decree dated 30.10.2004 shall stand dismissed as barred by time.
12. In another case titled as Basawaraj & Anr. v. The Spl. Land Acquisition Officer Civil Appeal No.6974 of 2013 decided on 22.08.2013, the Hon'ble Supreme Court had declined to condone the delay, as the sufficient explanation for condonation of delay was not furnished. The relevant portion of said judgment is reproduced as under:
"9. Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the Application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See: Manindra Land and Building Corporation Ltd. v. Bhootnath Banerjee & Ors., AIR 1964 SC 1336; Lala Matadin v. A. Narayanan, AIR 1970 SC 1953; Parimal v.Veena @ Bharti AIR 2011 SC 1150; and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai AIR 2012 SC 1629.)
10. In Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 this Court explained the difference between a "good cause" and a "sufficient cause"
and observed that every "sufficient cause" is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof that that of "sufficient cause".
11. The expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide: Madanlal v. Shyamlal, AIR 2002 SC 100; and Ram Nath 10 First Appeal No.392 of 2024 Sao @ Ram Nath Sahu & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201.)
12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim "dura lex sed lex" which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.
13. The Statute of Limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale.
According to Halsbury's Laws of England, Vol. 24, p. 181:
"330. Policy of Limitation Acts. The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence".
An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence' or laches. (See: Popat and Kotecha Property v. State Bank of India Staff Assn. (2005) 7 SCC 510; Rajendar Singh & Ors. v. Santa Singh & Ors., AIR 1973 SC 2537; and Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448).
14. In P. Ramachandra Rao v. State of Karnataka, AIR 2002 SC 1856, this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in A. R. Antulay v. R.S. Nayak, AIR 1992 SC 1701.
15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The Application is to be decided only within the parameters laid down by this court in regard 11 First Appeal No.392 of 2024 to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.
16. In view of above, no interference is required with impugned judgment and order of the High Court. The Appeals lack merit and are, accordingly, dismissed. ..."
13. In one more case titled as Majji Sannemma @ Sanyasirao v. Reddy Sridevi & Ors. Civil Appeal No.7696 of 2021 decided on 16.12.2021, the Hon'ble Supreme Court by relying upon the aforesaid judgment had refused to condone the huge delay of 1011 days in filing the Second Appeal for want of bonafide and sufficient cause/reasons.
14. Further, the Hon'ble Punjab & Haryana High Court in case "Union of India & Ors. Vs Hari Singh", 2009(4) RCR (Civil)- 654, had declined to condone the delay for taking the matter in a casual manner. In Para-7, it was observed as follows:-
"Even otherwise, no explanation is forthcoming from 15.09.2004 to 18.01.2005 for not filing the Appeal. The pleadings in Application itself show that the matter was being taken in most casual manner, without bothering for the law of limitation".
15. Totally a vague Application has been filed just to show that the delay had occurred in a bonafide manner whereas the delay of 576 days has not properly been explained. The Hon'ble Supreme Court in case "Anshul Aggarwal Vs. New Okhla Industrial Development Authority", 2011 (14) SCC 578 has held that while deciding the application for condonation of delay in the cases under the Consumer Protection Act, 1986, the Court has to keep in mind that specified period of limitation as prescribed under the Act while 12 First Appeal No.392 of 2024 filing the Appeals and Revisions in Consumer matters and the object of expeditious adjudication of the consumer disputes would be defeated/frustrated, if the highly belated petitions are entertained.
16. The Hon'ble Supreme Court in case "Lanka Venkateswarlu (D) By LRs Vs. State of A.P. & Others", 2011 (2) RCR Civil-880 (SC), after considering the entire case law on the issue of delay, in Para-26(relevant portion) has observed as under:-
"Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the Applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly".
17. In view of the above discussion and the reasons as well as the law as laid down by Hon'ble Supreme Court of India, it is apparent that delay of 576 days has not properly been explained. The Applicant/Appellant had slept over the matter and had not complied with the directions issued by the District Commission. The reasons as mentioned in the Application are totally vague and are not based on sufficient reasons to condone the delay. Totally a casual approach has been adopted while filing the Appeal. The Appellant had 13 First Appeal No.392 of 2024 remained totally inactive and unaware due to which the delay of 576 days had occurred.
18. We do not find any merit in the in the grounds and contentions for condonation of delay. Accordingly, the Application for condonation of delay is dismissed being meritless. Main Case
19. Admittedly the free certified copy of the impugned order was provided on 01.11.2022 to the Appellants. After receipt of the copy of the order, the Appellants/OPs No.1 and 2 had slept over the matter. Thereafter, Execution Application was filed by the Complainant before the District Commission and Appellants/OPs No.1 and 2 had contested the same by way of filing objections. The objections were rejected by the District Commission and warrants of attachment were issued. Till the issuance of warrants of attachment, the Appellants had remained inactive and had not approached this Commission within time to challenge the order dated 28.10.2022. All the parties in the Complaint were directed to comply with the directions as mentioned above. Neither the Complainant had approached this Commission nor OP No.2 as they had accepted the directions of the District Commission. The Appellants/OPs No.1 and 2 were aggrieved by the direction with regard to compensation of Rs.5000/- per day in case of non-compliance of the direction. It is pertinent to mention that the directions were issued by the District Commission to all the parties in the Complaint, i.e. to the 14 First Appeal No.392 of 2024 Complainant, OPs No.1 and 2 as well as to OP No.3. In case, OPs No.1 and 2 were aggrieved in any manner with regard to compensation of Rs.5000/- per day in case of non-settlement of claim within 30 days, they could have approached this Commission within time limit as prescribed in the Act. The Appellants/OPs No.1 & 2 have mentioned in the Appeal that the Complainant had not submitted/supplied the relevant documents within time. In case, the Complainant had not submitted/supplied the documents, the Appellants/OPs No.1 and 2 were within their right to close the claim of the Complainant on account non-furnishing of relevant documents for settlement of the claim but the Appellants/OPs No.1 and 2 had not exercised their discretion to close the claim. The Appellants/OPs No.1 and 2 firstly accepted the decision of the District Commission and had not filed any Appeal. The Complainant filed execution Application for execution of the Order passed by the District Commission. The Appellants/OPs No.1 and 2 had contested the same and only when warrants of attachment issued. The Hon'ble Supreme Court of India in case titled as "Pathapati Subba Reddy (Died) by LRs & others Vs. The Special Deputy Collector (LA), Special Leave Petition (Civil) No.31248 of 2018, decided on 08.04.2024, has held as under :-
"32. Moreover, the High Court, in the facts of this case, has not found it fit to exercise its discretionary jurisdiction of condoning the delay. There is no occasion for us to interfere with the discretion so exercised by the High Court for the reasons recorded. First, the claimants were negligent in 15 First Appeal No.392 of 2024 pursuing the reference and then in filing the proposed appeal. Secondly, most of the claimants have accepted the decision of the reference court. Thirdly, in the event the petitioners have not been substituted and made party to the reference before its decision, they could have applied for procedural review which they never did. Thus, there is apparently no due diligence on their part in pursuing the matter. Accordingly, in our opinion, High Court is justified in refusing to condone the delay in filing the appeal."
20. It is pertinent to mention that the compensation as mentioned in the order appears to be on higher side. The District Commission while issuing directions always keeps in mind that in case any compensation is awarded it should be reasonable and in the interest of justice and not on the higher side. The Appellants/OPs No.1 and 2 could have challenged the same within time limit but they had failed to do so.
21. Since the reasons for condonation of delay are not convincing as the same has not been properly explained by considering the number of days, so there is no need to hear the main Appeal on merits as neither the delay has properly been explained nor the reasons to condone the same are convincing. Since, the Application for condonation of delay has been dismissed by passing a detailed order, accordingly the Appeal is also dismissed being barred by limitation.
22. Since the main case is decided, the pending applications, if any, are also disposed of.
16First Appeal No.392 of 2024
23. The Appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER (VISHAV KANT GARG) MEMBER October 09, 2024 (MM)