State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Arun Khosla & Ors. on 3 August, 2015
Daily Order IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 18.08.2015 Appeal No. 632/13 National Insurance Co. Ltd., Delhi Regional Office-I, Jeevan B:harati, Tower-II, Level-IV, 124, Connaught Circus, New Delhi-110001. .............Appellant Versus Arun Khosla, R/o B-89, Greater Kailash, New Delhi. M/s. Dedicated Health Care Services (TPA) India Pvt. Ltd., Chiranjiv Towers, Nehru Place, New Delhi-110019. M/s. Karvat Health Care Services Pvt. Ltd., 615, 6th Floor, Somdutt Chambers-II, 9, Bhikaji Cama Place, New Delhi. ........Respondents CORAM Justice Veena Birbal, President Salma Noor, Member
OP Gupta Member (Judicial)
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
OP Gupta, Member (Judicial) The present appeal has been filed against the ex-parte order dated 26.03.2013 passed by the District Forum-II, Qutub Institutional Area, New Delhi awarding Rs.6,02,053.80 alongwith 9% interest per annum from the date of institution of complaint i.e. 03.08.2012 till release of the payment, on account of rejection of medical claim of the respondent Rs.50,000/- as compensation for mental agony including costs of litigation. The appeal was filed on 21.05.2013. Thus, there is delay in filing the appeal for which an application for condonation has been moved.
Application for condonation of delay proceeds on the averment that once order is received by insurance company, the same is sent to one of the panel Advocate to give opinion whether to prefer appeal or not. After opinion is given, receiving file and giving opinion after proper scrutiny of documents, analysis reason regarding negative order, insurance company takes some working days. The case is marked to concerned advocate for preparing appeal. After appeal is prepared, the same is sent back to the insurance company where the same is properly vetted by the insurance officials and then it is signed and FDR is prepared. Preparation of paper book involves photocopy. Great injustice and hardship shall be caused to the appellant in cases application is not allowed. According to appellant, there is delay of 21 days which is unintentional and bonafide. The application is accompanied by the affidavit of Manager of the appellant.
Respondent-1 has opposed the application by filing reply. It is submitted that appellant can not be permitted to take omnibus evasive plea of the process of seeking the opinion of a panel Advocate by stating that it takes some working days. Hon'ble Supreme Court has repeatedly expressed its ire at Government, corporate, insurance companies, judgement debtors, negligently sleeping over decrees and not discharging their obligations and belatedly filing appeals. The reply is supported with the affidavit of respondent-1.
We have gone through the material on record and heard arguments.
The counsel for respondent-1 has relied upon Ram Lal Vs. Rewa Coalfields Ltd. AIR 1962, SC 361 in which it was held that proof of sufficient cause is condition precedent for the exercise of discretionary jurisdiction vested in the court by section 5 of Limitation Act. He has also relied upon the Special. Deputy. Collector, Land Acquisition, (Industries), Hyderabad Vs. Nawab Turab Yar Jung, AIR 1973 Andhra Pradesh 43 in which it was held that expression "sufficient cause" in Section 5, Limitation Act cannot be construed liberally merely because the defaulting party is Government and every day's delay must be satisfactorily explained. Reliance has also been placed on decision in Union of India Vs. Kundan in AIR1977 Delhi 38 to make out the same preposition that sufficient cause is not to be liberally construed merely because party in default is Government. In National Insurance Company Ltd. Vs. Manoranjan Dash AIR 1986 Orissa 212 it was held that delay in filing appeal by Insurance Company due to routine and leisurely inter-departmental consultation cannot be condoned. In State of Jammu and Kashmir Vs. Ram Kali AIR 1987 Jammu and Kashmir 71 it was held that no exception is made for government in the matter of condonation of delay. M/s. Democratic Builders Vs. Union of India, AIR 1993 Delhi 132 is authority for the preposition that applicant must explain each and every day's delay. Balwant Singh Vs. Union of India 199 (2013) DLT 658 took a view that even State and its agencies cannot claim any preferential treatment in matter of condonation of delay.
On the other hand, it was held by Hon'ble Supreme Court in State of Bihar Vs. Subhash Singh AIR 1997 SC 1390 that strict proof of every day's delay should not be insisted upon. It is known fact that in transaction of the Government business, none would own personal responsibility and decisions are leisurely taken at various level. In G. Ramegowda Vs. The Special Acquisition Officer, AIR 1988 SC 897 it was held that expression 'sufficient cause' in Section 5 of Limitation Act must receive a liberal consideration so as to advance substantial justice and generally delay in preferring appeal requires to be condoned. In MK Parsad Vs. Arumugam, AIR 2001 SC 2497 it was held that while deciding application, court should keep in mind judgement impugned, extent of property involved and stake of parties.
In State of Nagaland Vs. Lipok AO & others, AIR 2005 SC 2191, it was held that government and private parties cannot be put on same footing in considering sufficient cause explaining every day's delay. Peculiar functioning of governmental conditions require adoption of pragmatic approach and certain amount of latitude is not impermissible.
In State (NCT of Delhi) Vs. Ahmed Jaan 167 (2010) DLT 658 (SC) it is held that Section 5 of Limitation Act should be construed liberally so as to do substantial justice to the parties. In N. Balakrishnan Vs. M. Krishnamurthy, AIR 1998 SC 3222, it was held that although no special indulgence can be shown to the Government which, in similar circumstances is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheel. In the same judgement it was held that acceptability of explanation for the delay is the sole criteria and not length of the delay.
Last but not the least is the decision of National Commission in Meena Vs. Union of India I(2014) CPJ 565 (NC) in which delay of 2167 days was condoned. It was observed that party would not stand to gain by delay. Reference is made to decision of Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag Vs. Mst. Katiji and Ors. (1987) 2 SCC 107 in which it has been held as below :-
"every days 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 and pragmatic manner.
It is useful to quote following observations from decision of Hon'ble Supreme Court in case of Katji supra:-
"Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
In view of the latest trend of judicial pronouncements we find it a fit case for condonation of delay. The respondent-1 can be compensated by costs. Accordingly, the delay is condoned subject to payment of Rs.10,000/- as costs.
With the consent of the parties, we have heard on the main appeal.
The plea of the appellant is that order of District Forum has not only been passed malafidely and against the facts and circumstances of the case but has also been passed with prejudicial mind and is based on surmises and conjectures.
During hearing of appeal, it is revealed that written statement of the appellant had not come on record and the final order of the District Forum is one sided. It has also been revealed that order dated 27.09.2012, proceeding the appellant ex-parte was challenged in earlier appeal No.1117/2012 before this Commission and the appeal was accepted vide order dated 13.11.2013 subject to payment of Rs.3000/- as costs. The appellant was directed to appear before the District Forum on 11.12.2013 to file written version. But said order could not fructify because the District Forum had already passed the final order on 26.03.2013.
It appears that there was some negligence on the part of appellant in pursuing the case. When it come to know about ex-parte order dated 27.09.2012, there is no reason why he did not continue appearing before the District Forum and apprise it about the filing of the previous appeal. There is also no reason why the appellant did not apprise this Commission about final order dated 26.03.2013 and why it continued with previous appeal. It should have withdrawn the previous appeal as the same had become infructuous.
Never-the-less, benefit of the order of previous appeal cannot be denied to the appellant. In order to materialise the same, it is necessary to set aside the impugned ex-parte order dated 26.03.2013 and remand the matter back to be decided on merits after taking the written statement of the appellant, considering the same and permitting the appellant to lead its evidence. It is always just and fair to decide the matter on merits rather than upholding ex-parte order, particularly when the amount involved is heavy being more than rupees six lacs. This is more so when award is against the Government body where public exchequer is involved. The defence of the appellant is that respondent-1 took the policy by concealing the pre-existing disease.
In view of the above discussions, the appeal is accepted, the impugned order dated 26.03.2013 is set aside. The matter is remanded back to the District Forum to decide the same on merit after taking written statement of the appellant on record and permitting appellant to lead its evidence by affidavit. Since the complaint case is of the year 2012, we direct the District Forum to decide the same within six months. Parties are directed to appear before the District Forum on 14.09.2015. File of the District Forum be returned alongwith copy of this order. The copy of this order be sent to both the parties free of cost by post as per rule.
(Justice Veena Birbal) President (Salma Noor) Member (O.P. Gupta) Member (Judicial)