State Consumer Disputes Redressal Commission
Life Insurance Corporation Of India vs Sri Amit Chakraborty on 12 December, 2012
Daily Order
STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL, BHABANI BHAWAN (Gr. Floor) 31, Belvedere Road, Kolkata - 700027 FA No: 514 Of 2012 (Arisen out of Order Dated 30/03/2012 in Case No. CC/382/2011 of District Kolkata-I) Life Insurance Corporation Of India Life Insurance Corporation of India Vs. Sri Amit Chakraborty BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: Ms. Sumita Roy Chowdhury , Advocate For the Respondent: Mr. Prabir Basu, Advocate Dated : 12 Dec 2012 ORDER
Order No. 5. Dt. 12.12.12 Record is put up for passing order.
This is to consider the Appellants' petition for condonation of delay in preferring the appeal.
It is the case of the Appellants that the Respondent filed Case No. 382/11 against the Appellants before District Forum, Kolkata, Unit-I, and the Appellant No. 2 vide letter dated 03.01.12 appointed their panel Advocate, Mr. Debashis Ghosh to contest the case on behalf of both the O.P.s and also parawise comments against the petition of complaint with other relevant papers and documents handed over to the said Advocate for preparing written version, received by him on 05.01.12. It is also made out that the Advocate was contacted by Mr. Reazul Haque, Administrative Officer,L and HPF Department, KMDO-II after 09.01.12 to know the status of the case, to which he informed that next date will be duly communicated to LICI but it was not done. And even he was contacted by LICI from time to time to know the steps being taken by him in the case and he assured proper steps. Suddenly, on 23.5.12, OP No. 2 received one letter dated 01.5.12 from Mr. Tarun Chakraborty, Advocate informing that Case No. 382/11 has been heard and decided ex parte, and when asked for, the said Advocate of the Appellants by his letter dated 01.08.12 stated that he attended the District Forum on 09.01.12 but due to non-posting of the subsequent dates in his diary he could not attend subsequently. In fact, he made wrong representation to LICI that he attended the District Forum on 09.01.12 but could not do so on subsequent dates due to non-posting of the dates in his diary. It is for the first time on 23.5.12 that the LICI came to know from the said letter of Mr. Tarun Chakrobarty, Advocate that the case has been heard and allowed ex parte against the Appellants. If the Appellants were knowing that their Advocate was not appearing, they would have immediately engaged another Advocate for defence and that the LICI was misled by their panel Advocate and the LICI had to suffer the consequence of the impugned judgment. Finally, it has been made out that there was no Manager and Administrative Officer in L & HPF Department of LICI, KMDO-II for quite long time and also due to administrative delay and non-receipt of the free copy of the impugned order, which also caused the delay in filing the Memo of Appeal. As such, the delay of 110 days in filing the memo of appeal be condoned.
Ld. Advocate for the Appellants has made out that not even for one day, the said Advocate appeared before the Ld. District Forum and his report dated 01.08.12 is wrong and mischievous. It is also made out that the Appellants are not individual persons who work under the Govt of India, which situation be considered liberally. Further, no free copy of the impugned judgment was ever given by the Ld. District Forum, and 29.06.12 was deliberately shown to be the purported date for issuing free copy. She has cited the decision of the Hon'ble Supreme Court in the case of Lal Devi and Ors. vs. Vaneeta Jain and Ors. in Civil Appeal No. 2494 of 2007, where it was held that the defendant cannot be made to suffer an ex parte decree particularly when he was not at fault, having duly instructed his counsel to appear before the Court of the learned District Judge. She has also relied upon another decision of the Hon'ble Supreme Court in the case of State of Nagaland vs. Lipok AO and Ors. in Case No. 484 of 2005 and stressed from therein that, "What constitutes sufficient cause cannot be laid down by hard and fast rules. In New India Insurance Co. Ltd. Vs. Shanti Misra (1975 (2) SCC 840), this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient" cause should receive a liberal construction...In O.P. Kanthpalia vs. Lakhmir Singh (1984 (4) SCC 66), a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay...When substantial justice and technical considerations are pretted 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... In G.Ramegodwa, Major vs. Spl. Land Acquisition Officer (1988 (2) SCC 142), it was held that no general principle saving the party from all mistakes of its counsel could be laid. The expression "sufficient cause" must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored." Accordingly, she has sought for the required condonation of delay.
Ld. Advocate for the Respondent has submitted that the Appellants have got legal department to oversee the matter and the functioning of their empanelled Advocates and that the office of the Legal Department does not remain vacant on account of retirement or transfer of the officials and that there is apparent and patent negligence in the matter for which the Appellants should not get any respite. He has relied upon certain decisions of the Hon'ble National Commission, first, 2008 (4) CPR 239 (NC), in which it was held that law of limitation does not give any special exemption or indulgence in time limit for relaction of time limit for a government department, specially when a right has been created in favour of one of the parties. Secondly, IV (2012) CPJ 555 (NC), in which it was held that in alleged negligence of Advocate but no reason was given by the petitioners for their non-appearance before the State Commission, petitioners are supposed to be vigilant and supposed to know the status of their case, from each and every hearing, otherwise it clearly shows inaction, negligence and passivity on the part of the petitioners. He has further referred to some other decisions of the Hon'ble National Commission as reported in I (2012) CPJ 187 (NC), III (2012) CPJ 400 (NC), III (2012) CPJ 703 (NC) and IV (2012) CPJ 575 (NC). So, he has pleaded for rejection of the petition.
There is found no proper and useful justification for non-appearing before the Ld. District Forum by the Appellants, even the written version was not filed. This is no proper explanation for the inaction of the said Advocate. The whole system is in jeopardy, the legal department of it is no exception, whose duty is to oversee and get itself briefed about the (outcome of) day to day proceedings of the cases in the different fora. Not doing so is also negligence, rather high negligence on the part of the officers on duty at the relevant time. The same cannot be condoned, in view of presence of concerned L&HPF department. For the indifference, callousness and negligence on the part of such officials, the Complainant/Respondent should not suffer. Otherwise, the whole purpose of C.P. Act would be futile. The purpose of C.P. Act is to shorten the journey period of litigation. It is well settled that qui facit per alium facit per se. Negligence of a litigant's agent is negligence of the litigant himself and is not a sufficient cause for condoning delay. In 2012 (4) CPR 259 (NC), the Hon'ble National Commission also held that petitioners cannot put all blame upon their counsel; there is nothing on record to show that the petitioners ever made any attempt to contact their Advocate to know about the fate of the revision to be filed before National Commission and the facts of the case reveal negligence, inaction and passivity on the part of the petitioners themselves. "It's not whether you win or lose, it's how you place the blame",-Oscar Wilde. The Appellants have palpably been misled by their own Advocate and the fault solely and squarely befalls on the Appellants on their conduct of the case and to none others, for their inaction, lackadaisical indifference and attitude and insensitivity to the case in hand, for that the Respondent should not be deprived of the legitimate right accrued. In the case of State of Nagaland vs. Lipok AO and Ors. (supra), in reference to the case of G. Ramegoda, Major vs. Spl. Land Acquisition Officer (1988 (2) SCC 142), it was also held that no general principle saving the party from all mistakes of its counsel could be laid. Further, in the said case of State of Nagaland (supra), it was stated that a certain amount of latitude is not impermissible in the case of Government and due recognition of the limitations on governmental functioning-of course, within reasonable limits- is necessary if the judicial approach is not to be rendered unrealistic. In the present case before us, the unconscionable default on the part of the officials cannot said to be within reasonable limits. In Lal Devi and Ors. Vs. Vaneeta jain and ors. In Lal Devi vs. Vaneeta Jain (supra), it was held that the Ld. District Judge was not justified in proceeding with the matter ex parte as the counsel of the defendant was preoccupied before the High Court which prevented him from being present in his Court when the case was called for hearing. But, in the case at hand, the situation is altogether different, as the counsel appointed by the Appellants did not appear at all and there was no knowledge of the Appellants of it as if they were in deep slumber. Further, it cannot be said and believed that in the absence of a regular Manager or Administrative Officer, the concerned department of the Appellants did not function and without any job and remains in the dark and having without charge of any administrative official. So, these explanations for the delay cannot be entertained and condoned for preferring the appeal belatedly. Accordingly, the instant petition being devoid of any merit stands rejected. Consequently, the concerned Appeal is also dismissed being barred by limitation.
[HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER