National Consumer Disputes Redressal
M/S. Aneja Construction (I) Ltd. vs National Insurance Co. Ltd. on 25 June, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 812 OF 2013 (Against the Order dated 22/04/2013 in Complaint No. 2221/2012 & 92/2012 of the State Commission Punjab) 1. M/S. ANEJA CONSTRUCTION (I) LTD. 4-5, VINAY COMPLEX, FIRST FLOOR, NR. DUDH DHARA DAIRY, OLD NATIONAL HIGHWAY NO. 8, BHOLAV-BHARUCH, GUJARAT ...........Appellant(s) Versus 1. NATIONAL INSURANCE CO. LTD. THROUGH ITS REGIONAL MANAGER, REGIONAL OFFICE SCO 332-334, SECTOR-34-A, CHANDIGARH 2. NATIONAL INSURANCE COMPANY LTD., THROUGH ITS BRANCH MANAGER, PATHANKOT, BRANCH OFFICE, DHANAGU ROAD, PATHANKOT-145001 ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Appellant : Mr. T.S.Ahuja, Advocate with
Mr. Varun Ahuja, Advocate For the Respondent : Mr. Yogesh Malhotra, Advocate with
Mr. Udit Grover, Advocate
Dated : 25 Jun 2018 ORDER
This first appeal has been filed by the appellant M/s. Aneja Construction (I) Ltd. against the order dated 22.4.2013 of the State Consumer Disputes Redressal Commission, Punjab (in short 'the State Commission') passed in CC No.92 of 2012.
2. Brief facts of the case are that the appellant had got his Excavator Escort Daewoo Solar LC 280 Machine having Sr. No.20082 along with Rock Breaker duly insured with respondent. That at the time of taking the insurance policy from respondent, the address of appellant was "Aneja Construct (I) Pvt. Ltd. ABC Chokdi, near TCI, Bharauch", but location of the Excavator was in Jamnagar. It is the case of appellant that it was brought to the knowledge of respondent that present location of Excavator is Jamnagar and location will be changed to another location after work is completed at Jamnagar. During the process of excavation, said insured Excavator met with an accident at Hotel Udai Vilas at Udaipur in the State of Rajasthan on 05.09.1999 at 10.30 AM. The appellant immediately informed respondent about the accident through letter and also on telephone to their authorized representative Mr. Manjeet Singh at Phathankot. The Appellant lodged the claim with respondent for the loss of Rs.16,57,093.50 due to breakdown of excavator. It was the case of the appellant that the appellant had got the machine insured for Rs.60 lakhs and appellant spent Rs.16,57,093/- on repair of machine. As such, respondent is liable to pay Rs.16,57,093/- to the appellant. The respondent repudiated the claim of the appellant vide letter dated 29.10.2003 stating that the change in place was never informed to the respondent. Thereafter, the appellant bonafidely filed a complaint with the District Consumer Forum, Bahruch (in short 'the District Forum') bearing complaint No.200 of 2004 on 08.09.2004, and the same was dismissed by the District Forum after a long period of 8 years vide its order dated 11.04.2012 only on the point of jurisdiction. The District Forum held that the appellant may approach to the competent forum having jurisdiction. Thereafter on 10.10.2012 the appellant filed the complaint before the State Consumer Disputes Redressal, Commission Chandigarh being complaint No.92 of 2012 along with the application for condonation of delay being Civil Misc. Application No.2221 of 2012 for condoning the delay of 2558 days, which was the time spent before the District Forum, Bharauch from 08.09.2004 to 11.04.2012.
3. The State Commission vide its order dated 22.4.2013 dismissed the complaint on the ground of limitation as the application for condonation of delay for 2558 days was dismissed.
4. Hence the present appeal.
5. Heard the learned counsel for both the parties and perused the record.
6. Learned counsel for the appellant stated that the accident of the excavator has occurred on 05.09.1999 and the claim was presented to the Insurance Company, however, the claim was repudiated on 29.10.2003 and the complaint was filed before the District Forum on 08.09.2004. The District Forum, however dismissed the complaint on 11.04.2012 by observing that the District Forum, Bharauch did not have the jurisdiction. As the District Forum has ordered that the complainant may go to the competent forum, complainant filed a complaint CC No.92 of 2012 before the State Commission on 10.10.2012 and the same has been dismissed by the State Commission vide its order dated 22.04.2013 on the ground of limitation. Accordingly, the learned counsel argued that the time taken by the District Forum has to be condoned under Section 14 of Limitation Act, 1963 and particularly when the District Forum has asked the complainant to go before the competent forum and to file the application for condonation of delay if any question is raised for delay. It was argued that the State Commission has wrongly understood the observation of the District Forum in observing the following:-
"13. The District Forum only ordered that complainant may go to the competent Forum and can make an application for the condonation of the delay. But the District Forum, Bharauch has not ordered that the time spent form the filing of the complaint i.e. 8.9.2004 till its dismissal vide order dated 11.4.2012 is not counted towards limitation and no liberty was also granted by the District Forum to the complainant for filing of the complaint on the same cause of action."
7. The learned counsel stated that under Section 14 of the Limitation Act, 1963 the time taken even in a wrong forum has to be considered for deciding the application for condonation of delay. To support his arguments learned counsel referred to the following judgments:
(1) Ghasi Ram and Ors. Vs. Chait Ram Saini & Ors., (1998) 6 SCC 200. It has been held that:-
"10. ......If, on examining the facts, it is found that there was no lack of due care, there is no reason why the plaintiff-appellant would not be accorded the benefits of Section 14 of the Act. Does the interest of justice demand that plaintiff should be refused benefit of Section 14 of the Act on account of the negligence on the part of his counsel, ill advising him to file a revision instead of filing a fresh suit? An illiterate litigant cannot be made to suffer when he is ill-advised by his counsel. On the facts and circumstances of this case, we are satisfied that the plaintiff-appellant prosecuted the earlier civil proceeding in good faith."
(2) Shakti Tubes Limited Through Vs. State of Bihar & Ors., (2009) 1 SCC 786. It has been held that:-
"20. Section 14 of the Limitation Act speaks of prosecution of the proceedings in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. What would be the true purport of the words "other cause of a like nature"? The same must relate to the subject matter of the issue. A Three-Judge Bench of this Court had an occasion to consider the same in Rameshwarlal v. Municipal Council, Tonk and Others [(1996) 6 SCC 100] wherein it was held:
"3. Normally for application of Section 14, the court dealing with the matter in the first instance, which is the subject of the issue in the later case, must be found to have lack of jurisdiction or other cause of like nature to entertain the matter. However, since the High Court expressly declined to grant relief relegating the petitioner to a suit in the civil court, the petitioner cannot be left remediless. Accordingly, the time taken in prosecuting the proceedings before the High Court and this Court, obviously pursued diligently and bona fide, needs to be excluded."
8. Relying on the above judgments of the Hon'ble Supreme Court the learned counsel for the appellant stated that the complainant has suffered a loss and the claim is payable by the Insurance Company. The doors of justice cannot be shut for the complainant on account of technical reasons, which are not even justified. The appellant cannot be left remediless. Hence, the appellant must be allowed to file the complaint before the competent forum, which should adjudicate the complaint on merit. It was further argued by the learned counsel that the cause of action arose when the Insurance Company repudiated the claim on 29.10.2003 and the complaint before the District Forum was filed on 08.09.2004, which was dismissed on 11.04.2004 by the District Forum, therefore, the complaint before the State Commission was filed on 10.10.2012. Thus, if the period of pendency of the complaint before the District Forum is excluded under Section 14 of the Limitation Act, 1963, then the complaint before the State Commission has been filed within a period of two years from the date of cause of action. Hence, the complaint was very much in time as per the provision of the Consumer Protection Act, 1986.
9. Learned counsel for the appellant mentioned that he has filed an application under Section 151 CPC limiting the claim as per the original complaint filed before the District Forum. Accordingly, the appellant may be allowed to file the complaint before the District Forum having the jurisdiction.
10. On the other hand, learned counsel for the respondent/Insurance Company stated that the complainant first filed a consumer complaint before the District Forum and when District Forum found that it did not have the jurisdiction to decide the complaint, the same was dismissed. However, it was ordered that the complainant may move to the appropriate forum. Clearly it had meant that the complainant should have filed the complaint before another District Forum having jurisdiction over the matter, but the complainant filed the complaint before the State Commission. Complainant not only changed the forum but also changed the complaint and the complaint before the State Commission was altogether a new complaint. In these circumstances, benefit of Section 14 of the Limitation Act, 1963 cannot be given to the complainant as he is only doing forum shopping in order to get his claim allowed. The complainant would have been entitled for benefit of Section 14 of the Limitation Act, 1963, if second complaint was filed before the competent District Forum having jurisdiction over the matter. It is very surprising to note that the complainant has changed the amount of relief sought and that is why he filed the complaint before the State Commission, therefore, the complaint filed before the State Commission shall be treated as a fresh complaint having no relationship with the first complaint and the order passed by the District Forum.
11. Learned counsel for the respondent contended that an application filed by the appellant/complainant under Section 151 CPC for limiting the claim is not maintainable at this stage because enough time has elapsed since the first complaint was filed in the year 2004 before the District Forum Bharauch and the period after the decision of the District Forum on 11.04.2012 till today will not be explained. In support of his arguments, learned counsel referred to the following judgments:-
(1) Neeraj Jhanji Vs. Commissioner of Customs and Central Exercise, (2015) 12 SC 695. It has been held that:-
"1. Heard. In our opinion, the initial filing of writ petition by the Petitioner before the Delhi High Court against the order -in -original passed by the Commissioner of Customs, Kanpur was not at all bone fide. The Delhi High Court, however, converted the writ petition into statutory appeal under the Customs Act, 1962 by order dated November 9, 2009. On September 9, 2010 the Respondent raised an objection about the territorial jurisdiction of that Court. The matter was adjourned at the instance of the Petitioner. Then on January 5, 2012 the Petitioner withdrew the appeal with liberty to approach the jurisdictional High Court. The Delhi High Court dismissed the appeal as withdrawn. While doing so, the Delhi High Court observed:
"It is for jurisdictional High Court to decide the prayer for waiver/exclusion. However, it does appear that the Appellant in the present case had bona fidely filed the appeal in this Court and has been pressing the same, as the Tribunal is located in Delhi."
2. The Petitioner then filed statutory appeal before Allahabad High Court and applied for condonation of delay by seeking the benefit Under Section 14 of the Limitation Act.
The Allahabad High Court dismissed the application for condonation of delay and also dismissed the appeal as time barred ( : 2013 (296) E.L.T. 310 (All.)). It said:
"21. In the present case also as in the case of Ketan v. Parekh (supra), the Appellant was assisted and had the services of the counsel's, who are expert in the central excise and customs cases. They first filed a writ petition, and then without converting it into appeal obtained an interim order. They kept on getting the matter adjourned and thereafter in spite of specific objection taken, citing the relevant case law, which is well known, took time to study the matter. Thereafter, they took more than one year and three months, to study the matter to withdraw the appeal. They took a chance, which apparently looking to the facts in Ketan v. Parekh's case and this case appear to be the practice of the counsels appearing in such matters at Delhi High Court and succeeded in getting interim orders. The Supreme Court has strongly deprecated such practice of forum shopping. In this case also there is no pleading that the writ petition and thereafter appeal was filed in Delhi High Court, under bona fide belief that it had jurisdiction to hear the appeal and that the Appellant was pursuing the remedies in wrong court with due diligence. The Appellant, thereafter, caused a further delay of 20 days in filing this appeal, which he has not explained.
22. For the aforesaid reasons, we are of the opinion that the Appellant is not entitled to the benefit of Section 14 of the Limitation Act. This appeal is barred by limitation by 697 days, which has not been sufficiently explained by the Appellant."
(2) Ketan V. Parekh Vs. Special Director, Directorate of Enforcement and Anr., (2011) 15 SCC 30. It has been held that:
"26. The question whether Section 14 of the Limitation Act can be relied upon for excluding the time spent in prosecuting remedy before a wrong forum was considered by a two Judge Bench in State of Goa v. Western Builders (supra) in the context of the provisions contained in Arbitration and Conciliation Act, 1996. The Bench referred to the provisions of the two Acts and observed (SCC pp. 246-47, para 19):
"19 There is no provision in the whole of the Act which prohibits discretion of the court. Under Section 14 of the Limitation Act 23 if the party has been bona fidely prosecuting his remedy before the court which has no jurisdiction whether the period spent in that proceedings shall be excluded or not. Learned counsel for the respondent has taken us to the provisions of the Act of 1996: like Section 5, Section 8(1), Section 9, Section 11, sub- sections (4), (6), (9) and sub-section (3) of Section 14, Section 27, Sections 34, 36, 37, 39(2) and (4), Section 41, sub-section (2), Sections 42 and 43 and tried to emphasise with reference to the aforesaid sections that wherever the legislature wanted to give power to the court that has been incorporated in the provisions, therefore, no further power should lie in the hands of the court so as to enable to exclude the period spent in prosecuting the remedy before other forum. It is true but at the same time there is no prohibition incorporated in the statute for curtailing the power of the court under Section 14 of the Limitation Act. Much depends upon the words used in the statute and not general principles applicable. By virtue of Section 43 of the Act of 1996, the Limitation Act applies to the proceedings under the Act of 1996 and the provisions of the Limitation Act can only stand excluded to the extent wherever different period has been prescribed under the Act, 1996. Since there is no prohibition provided under Section 34, there is no reason why Section 14 of the Limitation Act (sic not) be read in the Act of 1996, which will advance the cause of justice. If the statute is silent and there is no specific prohibition then the statute should be interpreted which advances the cause of justice."
12. I have given a thoughtful consideration to the arguments advanced by both the sides and have examined the material on record. It is seen from the policy that the address of the appellant is mentioned as his address of Baruch and the policy was also issued by the Baruch branch of the Insurance Company. In such situation, the appellant may be in a bona fide belief that he District Forum Baruch was the right forum having jurisdiction over the matter. Thus, the judgment in Neeraj Jhanji Vs. Commissioner of Customs and Central Exercise (supra) does not seem to be applicable in the present case. Similarly the other judgment in Ketan V. Parekh Vs. Special Director, Directorate of Enforcement and Anr. (supra) clearly states that the discretion of the court is not taken away to apply Section 14 of the Limitation Act, 1963 if there is no specific prohibition in the other Act. Clearly, there is no prohibition in the Consumer Protection Act, 1986, and therefore, discretion can be applied. In Ketan V. Parekh Vs. Special Director, Directorate of Enforcement and Anr. (supra), the Hon'ble Supreme Court has further explained that if the statute is silent, it should be interpreted to advance the cause of justice. The appellant relying on Shakti Tubes Limited Through Vs. State of Bihar & Ors. (supra) has asserted that the appellant cannot be left remediless and he has a right to represent his case before a competent forum. He has already filed an application under Section 151 of CPC to limit his claim to the amount demanded in the original complaint case filed before the District Forum.
13. The appellant has originally filed complaint before the District Forum for reimbursement of repair cost of Rs.16,57,094/- along with interest and compensation. As held by the larger bench of the Commission in Consumer Case No.97 of 2016, Ambrish Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016 (NC), the interest is to be treated as compensation for deciding the pecuniary jurisdiction of a consumer forum. From this point of view, I am of the opinion that the complainant (with same relief as prayed for before the District Forum) would be maintainable before the State Commission from the point of view of pecuniary jurisdiction.
14. As the appellant had bonafidely filed the complaint before District Forum Baruch and he cannot be left remediless in pursuance of his grievance, I deem it appropriate to allow the present appeal. The order dated 22.4.2013 of the State Commission is set aside and the delay in filing the complaint before the State Commission is condoned under Section 14 of the Limitation Act, 1963. The time taken by this Commission in deciding this appeal i.e. from 26.11.2013 till the date of order will also not be counted towards limitation. The complaint before the State Commission shall stand amended to the extent as if it is the same complaint as was filed before the District Forum. These orders are being passed subject to appellant depositing Rs.20,000/- with the consumer legal aid account of the State Commission before the date of appearance before the State Commission or in default, within the time as extended by the State Commission for this purpose. The State Commission to restore the complaint to its original number and to procced to decide the same as per law after the amount of Rs.20,000/- is deposited as aforesaid. As the matter is already very old, the State commission is requested to make special efforts to dispose of the complaint in six months positively.
15. Parties to appear before the State Commission on 30.07.2018.
...................... PREM NARAIN PRESIDING MEMBER