National Consumer Disputes Redressal
Smt. Dewanti Devi vs 1. National Insurance Co.Ltd. & Anr. on 31 October, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 438 OF 2011 WITH IA/1/2011 (FOR DELAY) (Against the order dated 26.09.2008 in appeal No.549/2007 of the State Commission, Jharkhand) SMT. DEWANTI DEVI W/O SHRI BHUNESHWAR NATH SONI R/O MADARSA ROAD P.O. + P.S. GARHWA DISTT. GARHWA ........ Petitioner Vs. 1. NATIONAL INSURANCE CO.LTD. 3 MIDDLETON STREET KOLKATA 700071 (WEST BENGAL) THROUGH ITS CHAIRMAN/MANAGING DIRECTOR 2. NATIONAL INSURANCE CO.LTD. DIVISION NO. III 1 SHAKESPEARE SARANI KOLKATA 700071 (WEST BENGAL) THROUGH ITS SR. DIVISIONAL MANAGER 3. THE CHAIRMAN GOLDEN TRUST FINANCIAL SERVICES, S.B. MANSION, 16 R.N. MUKHARJI ROAD, KOLKATA 700071 (WEST BENGAL) 4. THE MANAGER GOLDEN TRUST FINANCIAL SERVICES AT P.O./P.S. DALTONGANG, DISTT. PALAMU (JHARKHAND) .Respondents BEFORE: HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER HONBLE MR. SURESH CHANDRA, MEMBER For the Petitioner : Mr. K.B. Upadhyay, Advocate For the Respondent : Mr. Abhishek Kumar, Advocate for R-1 & 2 Mr. Kunal Chatterji, Advocate with Mr. Mattrayee Banerjee, Advocate for R-3 & 4 Pronounced on : 31st October, 2011 ORDER
PER JUSTICE V.B. GUPTA, PRESIDING MEMBER By way of present revision petition, there is challenge to order dated 26.9.2008 passed by Jharkhand State Consumer Disputes Redressal Commission, Ranchi (for short State Commission), vide which appeal filed by respondent challenging order dated 23.11.2006, passed by District Consumer Disputes Redressal Forum, Garhwa (for short District Forum) was allowed. Along with revision petition, an application seeking condonation of delay of 714 days has also been filed.
2. Brief facts are that complainant/petitioner took a Janta Personal Accident Claims Policy for Rs.5 lakhs from respondents no.1 & 2, through respondents no.3 & 4 for the period from 15.3.2004 to 14.3.2019. Unfortunately, on 29.9.2004, petitioner met with an accident and sustained injury in her spinal cord causing paralysis of her upper and lower limbs rendering her permanently disabled and physically handicapped. With regard to the said accident, information was given to Garhwa Police Station. Respondents no.1 and 2 were also informed on 7.10.2004. Thereafter, claim was submitted in prescribed format along with required papers/documents within the stipulated time.
3. When petitioners claim was not considered and settled, she sent legal notice to respondents no.1 & 2 on 20.10.2005 and, thereafter filed complaint seeking Rs.5 lakhs being insurance amount. Rs.6,569/- being cost of treatment, Rs.69,000/- being the interest @12% till 29.1.2006, Rs.5,000/- for travelling and Rs.50,000/- for mental agony and loss i.e. total of Rs.6,25,569/-.
4. Before District Forum, respondents no.1 & 2 did not appear. However, respondents no.3 & 4 appeared and supported the petitioners case and claim.
5. District Forum passed an ex-parte order against the respondents no.1 and 2 and directed them to pay entire insurance sum of Rs.5 lakhs with interest @ 8% p.a. and Rs.10,000/- as compensation to the petitioner.
6. On appeal filed by respondents no.1 and 2, the order passed by District Forum was set aside and complaint of the petitioner was dismissed.
7. We have heard the learned counsel for the parties and gone through the record.
8. It is contended by learned counsel for the petitioner that petitioner is a poor lady and she could not arrange for the funds and after arranging the funds, revision petition has been filed and as such delay occurred due to non-availability of the funds.
9. On the other hand, it is contended by learned counsel for the respondents that no cogent reason nor any sufficient cause has been shown by the petitioner for not filing the revision in time.
10. Relevant averments made in application for condonation of delay read as under :-
3. That it is submitted that the petitioner belongs to a very poor family and after receiving the impugned order dated 26.9.2008 the petitioner approached her local counsel for further action but she was asked to arrange the funds as the said order has to be filed before the National Consumer Disputes Redressal Commission, New Delhi.
4. That thereafter the petitioner somehow arranged the funds for filing the present petition and hence, the same is being filed in delay of 714 days.
5. That it is submitted that the above said delay of 714 days in filing the present petition is neither international nor deliberate on the part of the petitioner but due to the reasons mentioned above.
11. Admittedly, there is delay of 714 days in filing of the present revision petition.
12. The question to be seen is as to whether there are sufficient ground for condonation of delay in filing of the present revision petition or not ?
The only ground seeking condonation of delay is that, petitioner belongs to a very poor family and after receiving the impugned order, she approached her local counsel for further action but she was asked to arrange the funds. Thereafter, petitioner somehow arranged the funds for filing this petition.
13. It is nowhere stated as to what is the financial status of the petitioner. Nor she has stated as to on which date and from what sources she could manage the funds for filing the present revision. Petitioner has made vague averments in her application for condonation of delay with regard to the arrangement of the funds.
14. It is well settled that sufficient cause for non appearance in each case, is a question of fact. Delhi High Court in New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, has held;
No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafide are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen.
15. 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.
16. Similarly, in Oriental Insurance Co. Ltd.
vs. Kailash Devi & Ors.
AIR 1994 Punjab and Haryana 45, it has been laid down that;
There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.
17. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed:
We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.
18. Keeping in view the principles of law enunciated in the above judgments, it is to be seen whether sufficient cause has been shown for condonation of the delay or not. The application is absolutely vague and no cogent or sufficient cause has been shown nor any period has been mentioned as to when petitioner was able to arrange the funds and what was the source of those funds. It would be pertinent to point out that in the State Commission petitioner was duly represented by her counsel. Thus, it cannot be said that petitioner was not aware of the facts that the funds would be required for filing of the revision. Since, no reasonable explanation has been given, we hold that no sufficient cause nor any cogent reason has been given which entitles the petitioner to have the delay condoned.
19. Even on merits, we do not find any illegality or infirmity in the impugned order passed by the State Commission.
20. State Commission in its order has observed ;
7. In the present case, basically two questions are involved (i) whether the disablement was caused to the complainant as a result of the accident dated 29.9.2004 ? and (ii) whether it was permanent disablement within the terms and conditions of the Insurance Policy ?
8. According to the Doctor, who had treated the complainant after accident in his certificate dated 3.9.2007 said that Dewanti Devi was discharged from nursing home on 8.10.2004 and was advised to continue outdoor medical treatment for curing paralysis. According to him, she had developed total permanent disability in her right upper arm and lower extremities. In the opinion of the said doctor, it must have developed due to persistent and resistant traumatized neurodegenerative process due to trauma. The said doctor supported his certificate in his evidence before District Forum.
9. The complainant also appeared on 1.11.2004 before the Medical Board for Handicaps and the office of Civil Surgeon-cum-Medical Officer, Garhwa issue a certificate to her, wherein nature of handicapness was mentioned as Paralysis of Upper and Lower limb of moderate category i.e. 50%.
10. In the present case, the policy benefit of 100% of the sum assured is available in case of Permanent total disablement. The parties are governed by the terms of the contract of the policy and accident benefit would only be available in case the disability comes strictly under the definition provided in the terms of the policy.
11. From the aforesaid medical evidence, we find that if at all the disablement caused to the complainant as a result of the accident dated 29.9.2004 affected only her right upper arm as well as right leg, which according to Dr.R.L. Agrawal was called in medical terms unpredictable paralytic status. Further as per the Medical Board the paralysis in question was of moderate category i.e. 50%. Hence by no stretch of imagination it could be said to be Permanent total disablement in terms of the policy. Hence, in our opinion, the complainant/respondent was not entitled to get the insurance amount. The disablement suffered by her did not come within the scope of cover provided under the policy.
21. Petitioner as per her own case, has sustained injuries in an accident on 29.9.2004. The disability certificate was issued by the Medical Board on 1.11.2004, in which the nature of handicapness has been mentioned as Paralysis of Upper and Lower limb of moderate category i.e. 50%.
22. Thus, per insurance policy, benefit of 100% of the sum assured is available in case of Permanent total disablement only.
Petitioner is bound by the terms of the policy and accident benefit would be available only in case disability comes within the definition as provided in the terms of the policy.
23. We fully agree with the findings and reasoning given by the State Commission and do not find any illegality or infirmity in the impugned order. Present revision petition is, thus, devoid of any merits and same is hereby dismissed with costs of Rs.10,000/-.
24. Petitioner is directed to deposit the costs by way of cross cheque in the name of Consumer Legal Aid Account, within four weeks from today. In case, petitioner fails to deposit the costs, within the prescribed period, she shall also be liable to pay interest @ 9% p.a., till realization.
25 List the matter for compliance on 1.12.2011.
....J (V.B. GUPTA) (PRESIDING MEMBER) .
(SURESH CHANDRA) MEMBER Sonia/