National Consumer Disputes Redressal
Bajaj Allinz General Insurance Co. Ltd. vs Kanuri Venkata Lakshmi & 5 Ors. on 9 May, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2822 OF 2015 (Against the Order dated 18/06/2015 in Appeal No. 318/2015 of the State Commission Andhra Pradesh) 1. BAJAJ ALLINZ GENERAL INSURANCE CO. LTD. 7TH FLOOR, BLOCK NO.4, DLF TOWER 15,SHIVAJI MARG, NEW DELHI-110015 ...........Petitioner(s) Versus 1. KANURI VENKATA LAKSHMI & 5 ORS. W/O LATE SUBBA RAO,R/O KORLAPATIVARIPALEM, H/O MACHAVARAM, AMBAJIPETA MANDAL, EAST GODAVARI ANDHRA PRADESH 2. KANURI GANESH SRINIVASA KUMAR (MINOR) S/O LATE SUBBA RAO R/O KORLAPATIVARIPALEM, H/O MACHAVARAM, AMBAJIPETA MANDAL EAST GODAVARI ANDHRA PRADESH 3. KANURI KRANTHI KUMARI (MINOR) D/O LATE SUBBA RAO, R/O KORLAPATIVARIPALEM, H/O MACHAVARAM, AMBAJIPETA MANDAL EAST GODAVARI ANDHRA PRADESH 4. KANURI KRISHNA RAO, R/O KORLAPATIVARIPALEM, H/O MACHAVARAM, AMBAJIPETA MANDAL EAST GODAVARI ANDHRA PRADESH 5. KANURI NAGAMANI R/O KORLAPATIVARIPALEM, H/O MACHAVARAM, AMBAJIPETA MANDAL EAST GODAVARI ANDHRA PRADESH 6. ROAD SAFETY CLUB PVT. LTD. NO.1, 1ST FLOOR, SAMBANDAM STREET, GN SETTY ROAD, T.NAGAR CHENNAI ANDHRA PRADESH ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Ms.Suman Bagga, Advocate For the Respondent : For Respondent Nos.1 to 5 : Exparte
For Respondent No.6: : Mr. Bonny Laishram, Proxy counsel for
Mr. Lenin Hijam, Advocate
Dated : 09 May 2018 ORDER
The learned proxy counsel Mr. Bonny Laishram appearing on behalf of main counsel for respondent No.6. Mr. Lenin Hijam has filed his memo of appearance stating that he has been authorized by the learned counsel.
Heard the learned counsel for the petitioner as well as counsel for respondent No.6.
This revision petition has been filed by the petitioner Bajaj Allianz General Insurance Co. Ltd. against the order dated 18.06.2015 of the State Consumer Disputes Redressal Commission, Andhra Pradesh, (in short 'the State Commission') passed in FAIA 113/2015 and FASR 318/2015, wherein the appeal filed by the petitioner against the order dated 19.08.2014 of the District Consumer Forum,II, East Godavari, Rajahmundry passed in CC No.92/2011 has been dismissed on the ground of delay.
Learned counsel for the petitioner states that there was delay of 140 days in filing the appeal, but the grounds are genuine as mentioned in the application for condonation of delay, which was moved before the State Commission. Some delay has occurred due to the fact that learned counsel for the petitioner, who was appearing for the petitioner herein before the State Commission did not supply the copy of the order, hence the delay of about one month occurred. Then there was some delay in getting the higher orders as well as in the interdepartmental consultations and internal communications. When the appellant finally got approval from the head office, the appeal was filed. Thus, the delay was not intentional. If the appeal is heard on merits, it will not cause any prejudice to any party.
The respondent Nos.1 to 5 are the original complainants, who did not appear even after service of notice upon them. They were proceeded ex-parte vide order dated 22.05.2017. The learned counsel for the petitioner states that petitioner's case is very strong on merits and the appeal should be decided on merits as the District Forum has not considered all the relevant aspects. The learned counsel relied upon the following judgment of the Hon'ble Supreme Court to support her argument on condonation of delay:-
Manoharan Vs. sivarajan & Ors, Civil Appeal No.10581 of 2013, decided on 25.11.2013 (SC). It has been held that:
"9. In the case of State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., it was held that power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing the cases on merit. The relevant paragraphs of the case read as under:
"11. Power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987)ILLJ 500 SC held that the expression 'sufficient cause' employed by the legislature in the Limitation Act is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life purpose for the existence of the institution of Courts. It was further observed that a liberal approach is adopted on principle as it is realised that:
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
On the other hand, learned counsel for respondent No.6 states that the deceased/insured was a member of the respondent No.6 and the respondent No.6 had circulated letter dated 14.07.2008 informing that the arrangement with the insurer in respect of the group personal accident policy for the members has come to an end. Basically, respondent No.6 has also not supported the case of the complainant on merits.
I have given a thoughtful consideration to the arguments of the learned counsel for the parties present. First of all, it is seen that there is a delay of 27 days in filing the present revision petition. Delay is condoned at a cost of Rs.1,000/- (rupees one thousand only) to be given to each of the respondent Nos.1 to 5.
There was a delay of 140 days in filing the appeal before the State Commission. Apart from the judgment of Hon'ble Supreme Court in Manoharan Vs. Sivarajan & Ors, (supra) the Hon'ble Supreme Court in the case of Esha Bhattacharjee vs. Managing Committee of RaghunathpurNafar Academy and Others., (2013) 12 SCC 649, has laid down:-
-6-21. "From the aforesaid authorities (case laws referred) the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2 (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5.(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7.(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8 (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."
The Hon'ble Supreme Court in another case N. Balakrishnan Vs. M.Krishnamurthy, (1998) Supp. 1 SCR 403, has laid down the following:-
"11. Rules of limitation are not meant to destroy the right 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 caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer -9- persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain V. KuntalKumari, MANU/SC/0335/1968: [AIR 1969 SCR1006 and State of West Bengal Vs. The Administrator, Howrah Municipality, MANU/SC/0534/1971: [1972]2SCR874a.
13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."
Relying on the above authoritative judgments, of Hon'ble Supreme Court and to ensure that miscarriage of justice does not take place on account of technical reasons, I deem it appropriate to allow the application for condonation of delay moved before the State Commission at a cost of Rs,2,500/- (rupees two thousand five hundred only) to be given to each of the respondents No.1 to 5. Accordingly, the order dated 18.06.2015 is set aside and the matter is remanded to the State Commission to restore the appeal to its original number and to decide the same after giving opportunity of being heard to all the parties. The cost of Rs.3,500/- (rupees three thousand five hundred only) to be paid to each of the respondents from respondent No.1 to respondent No.5 will be paid by the petitioner before the State Commission. State Commission shall proceed with the appeal only after giving the cost of Rs.3,500/- (rupees three thousand five hundred only) to the respondent Nos.1 to 5.
Parties to appear before the State Commission on 09.07.2018.
...................... PREM NARAIN PRESIDING MEMBER