National Consumer Disputes Redressal
National Insurance Company Ltd. vs Minati Das And Ors. on 9 April, 2014
National Consumer Disputes Redressal Commission New Delhi Revision Petition no. 1263 of 2012 (Against the order dated 08.11.2011 in Appeal no. 17 of 2011 of the Tripura State Consumer Disputes Redressal Commission, Agartala) National Insurance Company Ltd. Through Assistant Manager Delhi Regional Office I Jeevan Bharati Tower II, Level IV Petitioner 124 Cannaught Circus New Delhi 110 001 Versus 1. Smt Minati Das Wife of Late Shanti Ranjan Das 2. Smt Supsriya Das (Manik) Daughter of late Shanti Ranjan Das 3. Shri Sukanta Das Son of Late Shanti Ranjan Das 4. Smt Nihar Kana Das @ Nihar Bala Wife Late Manindra Kumar Das All are residents of Nidaya Respondents P O Jatrapur, Sonamura West Tripura 5. Shri Uttam Kumar Nandi M/s Santi Gas Service Santirbazar, P S Santirbazar Belonia, South Tripura District (Owner of Santi Gas Service) Before: HONBLE MR JUSTICE V B GUPTA PRESIDING MEMBER HONBLE MRS REKHA GUPTA MEMBER For the Petitioner Mr K K Bhat, Advocate For the Respondent Mr P K Roy, Advocate for R 1 to 5 Pronounced on 9th April 2014 ORDER
REKHA GUPTA Revision Petition no. 1263 of 2012 has been filed under section 21 (B) of the Consumer Protection Act, 1986 against the order dated 08.11.2011 passed by the Tripura State Consumer Disputes Redressal Commission, Agartala (the State Commission) in Appeal no. 17 of 2011.
2. The brief facts of the case as per the complainants Shri Santi Ranjan Das, now substituted by his legal heirs, i.e., respondents nos. 1 to 4 are that the respondent took a domestic gas connection from respondent no. 5/ opposite party no. 1, i.e., M/s Santi Gas Service at Santir Bazar vide Consumer no. 7019 dated 06.03.2000. In the said connection the respondent was provided two gas cylinders by respondent no. 5. After taking gas connection the respondent has been taking gas cylinder continuously for the purpose of his domestic use from respondent no. 5.
3. The respondent on 06.01.2003 took gas cylinder from OP no. 1 through spot delivery by the staff of the OP no. 1. On 26.01.2003 at about 06.30 a m a fire incident took place in the house premises of the respondent at Nadaya under Jatrapur police station due to bursting of gas cylinder in which all domestic articles, valuable, furniture, gold ornaments along with constructions were totally gutted. The respondent informed the matter over telephone to the Fire Service Authority at Jatrapur Police Station.
4. At about 07.35 a m the Fire Brigade authority came to the place of occurrence and tried to protect all valuable articles and house from the fire but the fire brigade authority failed to do so.
5. Soon after the incident the respondent verbally informed the matter to OP no. 1/ respondent no. 5 but the OP did not take any action. On 24.04.2003, 10.05.2003 and 28.07.2003, the respondent informed the matter to respondent no. 5 through letter and stated all the facts and claimed for compensation.
6. By letter dated 05.05.2003, OP no. 1/ respondent no. 5, i.e., M/s Santi Gas Service informed the respondent that all his LPG Gas has been insured with National Insurance Company Ltd., Udaipur Branch, Tripura South, though, if any, damage will arise that may be recovered from the said insurance company. OP no. 1 further submitted that he will not be responsible for the said damage. So question of damage does not arise from OP no. 1. OP no. 1 also further advised to communicate with the said insurance company for compensation of the said damage.
7. After repeated requests by the respondent, petitioner deputed a surveyor on behalf of OP no. 1 and OP no. 2 Insurance Company and as per requirement the respondent submitted all relevant documents to the surveyor and investigator over the matter.
8. Petitioner did not give any compensation to the respondent hence this petition of the respondent for getting proper and just loss of the damage property of your respondent.
9. The complainant for granting compensation of Rs.7 lakh only due to the loss sustained which occurred due to bursting of the gas cylinder.
10. OP 1 to 3 contested the case before the District Consumer Disputes Redressal Forum, Agartala (the District Forum). As revealed in the order of the District Forum:
OP no. 1 contested the claim by filing written statement inter alia stating that the case was not maintainable as there was no consumer disputes and that the disputes was of civil nature and should be tried by a civil court only. It was further stated that OP had 8500 domestic gas consumers under his Agency namely, M/s Santi Gas Service and also those domestic gas consumers were insured with National Insurance Company Ltd., Udaipur Branch having policy no. 203001/2000320202 covering the period from 30.12.2002 to 29.12.2003 and so liability to pay any compensation should be borne by the insurance company, i.e., OP nos. 2 and 3.
OP nos. 2 and 3 also contested the suit by filing written statement denying the averments made in the company but did not deny the factum of insurance of gas cylinders of M/s Santi Gas Agency with its consumers covering the risk on the date of incident. It is further stated that the insurance company was not informed immediately after the incident to facilitate an investigation on the spot about the damages and therefore, it was not possible on the part of the insurance company to ascertain the actual damage and therefore, insurance company cannot be held responsible for making payment of any compensation. It is also stated that no document was placed to the insurance company regarding damages sustained by the complainants and hence, there was no deficiency of service on the part of the insurance company and as such, the complaint should be dismissed.
11. District Forum vide its order dated 07.01.2011 allowed the complaint and ordered that the complainants are entitled to get Rs.2,00,000/- (Rupees two lakh only) as compensation for the damage caused to their property and the OP nos. 2 and 3, i.e., the National Insurance Company Ltd., is to make payment of the compensation within 30 days from today failing which the amount shall carry interest @ 12% per annum from the date of presentation of the petition, i.e., 10.12.2003.
12. Aggrieved by the order of the District Forum the OP 2 before the District Forum filed an appeal before the State Commission. The State Commission after hearing the counsels for the parties and going through the records of the case concluded that:
The claim of the insurance company that the surveyor deputed by them could not assess the loss sustained by the complainant respondents in the absence of documents is not acceptable. As he was at the spot, the surveyor could have conducted a field enquiry and assess the loss.
On the other hand, the complainant respondents did not produce any documents in support of their claim that they had sustained a loss of Rs.7,00,000/-. They did not mention if the properties destroyed were new constructions/ freshly procured items. Therefore, it is presumed that the properties destroyed by fire were a few years old. Therefore, the value of the properties must have been depreciated by about 25% before the accident took place. Therefore, the loss sustained by the complainant respondents can be safely assessed at 75% of Rs.7,00,000 or Rs.5,25,000/-.
On the basis of the discussions made in the foregoing paragraphs we are of the considered opinion that the National Insurance Company the appellant herein is terribly deficient in service and they have harassed the complainant-respondents for more than eight years during which the original complainant expired. The insurance company also tried to deprive the complainant-respondents of the rightful compensation by misinterpreting the conditions of the LPG Traders Combined Policy.
Therefore, the National Insurance Company is liable to compensate for the loss sustained by the complainant- respondent due to the fire accident caused by the bursting of a gas cylinder and for the harassment mental agony inflicted upon them.
13. The State Commission thereafter ordered as under:
National Insurance Company shall pay a compensation of Rs.5,25,000/- for the loss of property and Rs.1,00,000/- for the harassment and mental agony suffered by the complainant respondent to the complainant respondents along with an interest @ 9% per annum with effect from date of filing of the case in the District Forum i.e., with effect from 10.12.2003. They shall also pay an amount of Rs.10,000/-
as cost to be deposited to the Legal Aid Account of this Commission. All the aforesaid payments shall be made within a period of 30 days from today, failing which, besides the other provisions of the Consumer Protection Act, 1986 for disobedience, all these documents shall carry interest @ 12% per annum with effect from 31st day of this order till the date on which the actual payments are made.
14. Hence, the present revision petition.
15. Along with the revision petition, the petitioner has filed two applications seeking condonation of delay. In the first application for condonation of delay, the number of days was not mentioned.
16. Vide order dated 30.05.2012 it had been observed that in the entire application for condonation of delay no period of delay has been mentioned. Counsel for the petitioner thereafter sought time for filing fresh application mentioning the period of delay, and the same was allowed.
17. Hence, the counsel for the petitioner has filed the second application for condonation of delay. As per the second application, the petitioner had asked for condoning the delay of 45 days. The reasons given for the delay as per the first application are as follows:
The petitioner herein is filing the present application for condonation of delay in filing the accompanying revision petition. The counsel for the petitioner in Tripura received certified copy of the impugned order towards the ends of November 2011 and opined the petitioner that the impugned order be challenged before the Commission. After receiving the opinion from the counsel, the regional office of the petitioner company forwarded the case filed to their Delhi Office and thereafter on 18.02.2012, the present counsel received the case file from the Delhi Office of the petitioner company however, the documents like copy of appeal and reply, if any, filed before the State Commission were not present in the file for perusal. The petitioner company was instructed to arrange for the complete documents, who in turn, approached its counsel in Tripura. The counsel in Tripura provided a copy of the missing documents to the Delhi Office of the petitioner and the same were received by the petitioner on 16.03.2012 and thereafter the same were provided to the present counsel on 17.03.2012. Thus, there has been delay of ____ days in filing this petition.
18. As per the second application for condonation of delay are as follows:
Petitioner herein is filing the present application for condonation of delay in filing the accompanying revision petition. The counsel for the petitioner in Tripura received certified copy of the impugned order towards the end of November 2011 and opined the petitioner that the impugned order be challenged before the Honble Commission. After receiving the opinion from the counsel, the regional office of the petitioner company forwarded the case filed to their Delhi Office and thereafter on 18.02.2012 the present counsel received the case filed from the Delhi Office of the petitioner company however the documents like copy of appeal and reply, if any, filed before the State Commission were not present in the file for perusal. The petitioner company was instructed to arrange for the complete documents, who in turn, approached its counsel in Tripura. The counsel in Tripura provided a copy of the missing documents to the Delhi Office of the petitioner and the same were received by the petitioner on 16.03.2012 and thereafter the same were provided to the present counsel on 17.03.2012. Thus, there has been delay of 45 days in filing this petition.
19. We have heard the learned counsel for the parties and have also gone through the records of the case carefully.
20. It will be seen that both the applications do not mention the date on which when the impugned order was received. As per the certified copy of the order, the same was passed on 08.11.2011 and forwarded to Mr P Gautam, Advocate for the appellant. It will also appear from the application that after receiving the opinion from the counsel that the order should be challenged before the National Commission, Regional Office of the petitioner Company forwarded the case to the Delhi Office and it was only on 18.02.2012 that the present counsel received the case file from the Delhi office. The application do not mention when the case papers were received at the Delhi Office from the office at Tripura. It is also apparent from the application that the office of the petitioner company dealt the matter in a most careless and casual manner and forwarded the case file without all the documentation required. There is no other reason or justification given in both the application to explain the delay of 45 days in filing the present revision petition.
21. At the same time, it is also well settled that sufficient cause with regard to condonation of delay in each case, is a question of fact.
22. The Apex Court In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), has laid down:
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.
23. 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 bonafide, 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].
24. 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.
25. Honble Supreme Court in Post Master General and others vs. Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;
24. After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;
29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.
The Court further observed;
27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.
31. In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.
32. In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs.
26. Accordingly, we find that there is no sufficient cause to condone the delay of 45 days in filing the present revision petition. The applications for condonation of delay are without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.5,000/- (Rupees five thousand only).
27. Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Legal Aid Account of this Commission 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.
List on 9th May, 2014 for compliance.
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[ V B Gupta, J.] Sd/-
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[Rekha Gupta] Satish