State Consumer Disputes Redressal Commission
Karamjit Kaur vs Hdfc Standard Life Insurance Company ... on 10 January, 2020
1st Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Misc. Application No.2104 of 2019
in/and
First Appeal No.650 of 2019
Date of institution : 01.10.2019
Date of Decision : 10.01.2020
Karamjit Kaur wife of Mika Khan @ Amrik Khan son of Gian
Chand, resident of Village Khadial, Tehsil Sunam, District Sangrur.
....Appellant/Complainant
Versus
1. HDFC Standard Life Insurance Company Limited, Lodha
Excelus 13th Floor, Apollo Mills Compound, NM Joshi Marg,
Mahalaxmi, Mumbai 400 011 through its Managing Director
2. HDFC Standard Life Insurance Company Limited, HDFC SL
Patiala, Leela Bhawan, 1st and 2nd Floor, SCO 114-115, New Leela
Bhawan Market, Above Domino Pizza, Patiala through its Branch
Manager.
3. HDFC Bank Branch Khadial Tehsil Sunam, District Sangrur,
through its Branch Manager.
....Respondents/OPs
Miscellaneous Application for
condonation of delay of 138 days in
filing the appeal.
AND
First Appeal against the order dated
15.04.2019 of the District Consumer
Disputes Redressal Forum, Sangrur.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member
Mrs. Kiran Sibal, Member.
First Appeal No.650 of 2019 2Present:-
For the appellant : Sh.Anoop Singla, Advocate JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The instant appeal has been filed by the appellant/complainant (hereinafter referred as 'complainant') along with an application for condonation of delay of 138 days in filing the appeal, which has been directed against the order dated 15.04.2019 passed by District Consumer Disputes Redressal Forum, Sangrur (in short, "the District Forum"), whereby the complaint filed by complainant against the opposite parties, under Section 12 of the Consumer Protection Act, 1986, was dismissed.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
Facts of the Complaint
3. Brief facts, as averred in the complaint, are that Mika Khan, husband of the complainant-Smt. Karamjit Kaur obtained one insurance policy, namely, HDFC Pro Growth Plus, No. 19551892, through OP No.3 at Village Khadial on 19.8.2017 by paying premium of Rs.49,000/- and the husband of the complainant was insured for Rs.3,43,000/- for the period from 24.7.2017 to 24.8.2027, the date of completion of the policy. The complainant was the nominee under the said policy. It was further averred that during the subsistence of the insurance policy, Mika First Appeal No.650 of 2019 3 Khan died on 24.8.2017. After the death of the insured, all the documents regarding claim were submitted to OPs No.1 and 2 for payment of the insurance claim but the OPs paid only an amount of Rs.48945.22 against the insurance amount and the remaining insured amount was not paid by the OPs. On approaching, no satisfactory reply was given by the OPs. Thus, alleging deficiency in service on the part of the OPs, the complaint was filed with the prayer that the OPs be directed to pay the insurance claim of Rs.3,43,000/- along with other benefits with interest @ 18% per annum from the date of death of insured-Mika Khan till realization and also pay Rs.30,000/- as compensation and litigation expenses.
4. Upon notice, OPs No.1 and 2 appeared and filed their written reply by taking preliminary objections that the complaint was not maintainable; the complainant had no cause of action to file the present complaint; the complainant had not come to the Forum with clean hands. It was pleaded that investigation in this case was conducted and it was found that the deceased had concealed material information about his state of health at the time of taking the said insurance policy, which was material in nature and he was in the knowledge of the same and knowingly suppressed the same. It was pleaded that the deceased was a chronic alcoholic and was not keeping good health since 2014. He was remained admitted in Vishwashish Hospital on 21.11.2014. First Appeal No.650 of 2019 4 Investigator collected medical evidence containing clear evidence of admission and got operated on 19.5.2016 for 'repair of large epigastric hernia" from Sharma Hospital and Endosurgery Centre, Bathinda, which relates to pre-proposal admission of the insured for the policy in question and shows that the life assured was suffering from health issues, before applying for policy on 19.8.2017 and died on 24.8.2017. It was further pleaded that the deceased obtained the policy by concealing the material facts about the state of his health, therefore, the claim was rightly repudiated. It was pleaded that after repudiation of the claim, an amount of Rs.48,945.22 has been refunded to the complainant. All other allegations levelled in the complaint were denied in toto and dismissal of the complaint was prayed for.
5. OP No. 3 also filed its separate written reply by taking legal objections that the complaint was not maintainable; the complainant had unnecessarily dragged the OPs into uncalled for litigation; complainant had no locus-standi and cause of action to file the present complaint. On merits, it was admitted that Mika Khan-insured was having a saving account with the OP No. 3 and he got insurance policy namely HDFC Pro Growth Plus vide policy No.19551892. It was also admitted that demand draft of Rs.49,000/- was prepared in the name of HDFC Standard Life Insurance from the account of Mika Khan on his instructions. It First Appeal No.650 of 2019 5 was also pleaded that it is a matter of record that Mika Khan died on 24.8.2017. Rest of the allegations were denied. Finding of the District Forum
6. The complainant tendered in evidence documents i.e. Ex.C-1 affidavit, Ex. C-2 copy of policy at glance, Ex.C-3 copy of death certificate, Ex. C-4 copy of policy schedule, Ex. C-5 copy of first premium receipt, Ex. C-6 copy of unit statement, Ex. C-7 copy of annual premium receipt, Ex. C-8 copy of bank statement, Ex. C- 9 to C-11 copies of text sms, Ex. C-12 copy of application dt. 10.1.2018, Ex. C-13 copy of acknowledgement. On the other hand, OPs No.1 and 2 have tendered in evidence Ex.OP-1&2/1 affidavit, Ex. Op1&2/2 copy of authority letter, Ex. Op1&2/3 copy of proposal form, Ex. Op1&2/4 copy of consent form, Ex. Op1&2/5, copy of insurance policy Ex. Op1&2/6, copy of medical record, Ex. Op1&2/7 copy of investigation report, Ex.Op1&2/8 affidavit of investigator, Ex. Op-p1&2/9 copy of affidavit of complainant dt. 19.1.2018, Ex. Op1&2/10 copy of repudiation letter. OP No.3 has tendered Ex.OP/3 as affidavit of Sunny Goyal, Branch Manager. Learned District Forum, after going through the same and hearing learned counsel on their behalf, dismissed the complaint on the ground that OPs produced on record the treatment record of the insured, before the issuance of the policy and proved that the insured had concealed material facts in his proposal form. Being First Appeal No.650 of 2019 6 not satisfied by the impugned order, the complainant has filed the appeal for setting aside the impugned order.
Grounds of Application for Condonation of Delay
7. Brief facts, as averred in the application, are that the delay in filing the appeal has occurred due to the fact that the impugned order was passed on 15.04.2019 and its certified copy was dispatched on 1.5.2019 by the District Forum, on the address of the complainant given in the complaint. It was averred that the appellant is a widow and living alone so she oftenly goes to the house of her daughters or son, who are living at distant place. It was further averred that as per office report of the District Forum, when the free certified copy was sent for delivering to the complainant/appellant at her address, she was not met there on 16.5.2019. It was averred that she approached her counsel, who stated that the copy will be delivered at her permanent address, therefore, she waited for the same for almost 5 months and then approached her counsel and told him to apply for the copy, who applied on 12.09.2019 with the District Forum, which was supplied to him on 18.09.2019. It is stated that the delay has occurred due to the abovesaid reason, which is neither intentional nor deliberate. It is prayed that the application be accepted and the delay in filing the present appeal be condoned, in the interest of justice.
Contentions of the Applicant First Appeal No.650 of 2019 7
8. We have heard learned counsel for the applicant/appellant and have gone through the appeal file carefully.
9. Learned counsel for the applicant/appellant vehemently contended that the delay in filing the appeal is neither intentional nor deliberate but due to the reason that on 1.5.2019, when certified copy was sent to deliver to the complainant at her residence, on 16.05.2019 she was not at home and oftenly goes to the house of her daughters or son, who are living at distant place, being an old lady, which fact is also proved from District Forum report that she was not at home on 16.5.2019. It was further stated that her counsel told her that free copy of the order will be delivered at her residence and she waited for the same almost 5 months. Thereafter, when copy was not received by post, she approached her counsel and told him to apply for the copy, who applied the same on 12.09.2019, which was delivered on 18.09.2019. He prayed that delay be condoned and the appeal be admitted to be heard.
10. We have given our thoughtful consideration to the contentions raised by the learned counsel for the applicant/appellant.
11. No cogent reasons and grounds have come forward to explain the huge delay of 138 days in filing the appeal. It is clear First Appeal No.650 of 2019 8 from the certified copy of the order that same has been received back with the report that addressee is not residing on the address, as mentioned in the complaint, whereas she reside somewhere else. Therefore, the ground taken by the applicant/appellant for condonation of delay is not cogent and convincing because as per report of the District Forum on the certified copy of the order, applicant/appellant is not residing on the address mentioned on the envelop whereas the applicant/appellant/complainant did not intimate about the change of her address in the District Forum. Therefore, the explanation coming forth is not relating to the report mentioned on the certified copy of the order. Another reason mentioned was that she waited for 5 months for the certified copy of the order. It is not believable because a prudent person always aspire to know the result of his case and while approaching the counsel by her, he would have definitely told the result of the case and on coming to know about the same, nobody waits for such a long time to receive the copy of the order. These aspects of the matter show casual approach on the part of the applicant/appellant regarding her case or about the filing of an appeal against the impugned order. Therefore, the explanation given by the applicant/appellant about the condonation of delay is not acceptable. Specific time has been given under the Consumer Protection Act for the disposal of the complaint and for filing of the appeal and the right accrued to the other party cannot be taken away in favour of one party, who was slack and non-vigilant of its First Appeal No.650 of 2019 9 right. Reference is made to the judgment of Hon'ble Supreme Court in case "Kamlesh Babu and Ors. Vs Lajpat Rai Sharma and Others", 2008(3) The Punjab Law Reporter-455, while interpreting and explaining the scope of Section 3(1) of the Limitation Act, observed as follows:-
"It is well settled that Section 3(1) of the Limitation Act casts a duty upon the court to dismiss a suit or an appeal or an application, if made after the prescribed period, although, limitation is not set up as a defence".
12. Therefore, no plausible explanation is given for the lapse of huge delay of 138 days in filing the appeal. Chain of sequence of events, which caused the delay of 138 days in filing the appeal, has not been described in order to co-relate the events which allegedly took place from time to time. The applicant has adopted a careless and casual approach in filing the application as well as the appeal. The law is settled that the delay can be condoned when it has been properly explained, but the delay due to casual approach cannot be condoned, at the asking of the applicant, which clearly shows on the part of complainant. It was held by the Hon'ble Supreme Court in "Anshul Aggarwal Vs. New Okhla Industrial Development Authority", 2011 (14) SCC 578 that while deciding an application for condonation of delay in the cases under the Consumer Protection Act, 1986, the Court has to keep in mind that special period of limitation has been prescribed under the Act for filing the appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer First Appeal No.650 of 2019 10 disputes will get defeated, if the highly belated petitions are to be entertained.
13. 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 point of delay, in Para-26(relevant portion) 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".
14. In view of above discussion and the law laid down, it is clear that the delay has to be explained properly and sufficient cause for causing delay must be disclosed and the delay caused on account of dilatory tactics, inaction and casual approach cannot be condoned. In the present case, as discussed above, no valid reasons or the explanations have been given for condonation of the delay of 138 days, which occurred due to casual approach. Thus, we do not find any ground to condone the delay of 138 days in filing the appeal.
15. In view of our above discussion, the application for condonation of delay is dismissed, being without any merit. First Appeal No.650 of 2019 11 Main Case
16. As the application for condonation of delay has been dismissed, therefore, appeal also stands dismissed, being barred by time.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (MRS. KIRAN SIBAL) MEMBER January 10, 2020.
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