National Consumer Disputes Redressal
M/S. Emco Ltd. vs New India Assurance Co. Ltd. on 16 November, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1407 OF 2017 (Against the Order dated 26/04/2017 in Complaint No. 708/2016 of the State Commission Maharashtra) 1. M/S. EMCO LTD. THROUGH ITS GENERAL MANAGER,&COMPANY SECRETARY,PLOT NO.F-5,ROAD NO.28,WAGLE INDUSTRIAL ESTATE,, THANE-400604 MAHARASTRA ...........Appellant(s) Versus 1. NEW INDIA ASSURANCE CO. LTD. NEW INDIA ASSURANCE BUILDING,87-M.G. ROAD, FRONT MUMBAI-400001, MAHARASTRA ...........Respondent(s)
BEFORE: HON'BLE MRS. REKHA GUPTA,PRESIDING MEMBER
For the Appellant : MR. PANKAJ KUMAR SINGH For the Respondent :
Dated : 16 Nov 2017 ORDER
REKHA GUPTA, PRESIDING MEMBER
The present appeal has been filed against the judgment dated 26.04.2017 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in MA no. 16/376 in CC no. 16/ 708.
2. The facts of the case as per the appellant are that in the year 2009 the appellant company had entered into a contract for erection and commissioning of a 160 MVA Transformer with M/s Delhi Transco Ltd., at pre-fabricated build, Rajghat Power House and were issued with a letter of award. The appellant obtained an erection and all risks insurance policy bearing no. 222100/ 44/ 09/ 44/ 400000005 from the respondent/ opposite party/ insurance company which was valid from 25.05.2009 to 24.12.2010. It was further extended from 24.12.2010 to 24.06.2011. The assembly erection of the transformer was completed and the transformer testings were carried out. After testing of the transformer was completed and the switch yards were ready for commissioning in March 2011. On 01.04.2011 an MOU was entered between the appellant and the respondent/ insurance company for all the insurance policies issued by the respondent between 01.04.2011 to 31.03.2012. On 12.05.2011 during the commissioning of the transformer, there was a short circuit, due to which the transformer failed and tripped at 18.03 hours. The said information was given to the respondent on 13.05.2011. The surveyor submitted his final report on 12.06.2012. The respondent on 05.12.2013 repudiated the claim of the appellant on the ground that as per the survey report the transformer was duly tested successfully in August 2010 and it had failed at the time of commissioning after three months of testing. Thus, the kind of fault would not fall under the purview of the policy. The appellant thus filed an appeal no. 708 of 2016 before the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in July 2016 along with an MA no. 376 of 2016 seeking condonation of delay in filing the appeal. The State Commission while dismissing the application for condonation of delay observed as under:
7. Admittedly, transformer of the applicant/complainant company failed/ tripped on 12/05/2011 due to short circuit. The applicant /complainant lodged the insurance claim with the opponent Insurance Co. which was repudiated on 05/12/2013. Applicant/complainant filed the complaint on 15/07/2016 along with delay condonation application. There is delay of 217 days in filing the consumer complaint.
8. It is informed that the Company Secretary Mr Praveen Kumar Jha, who was taking care of legal matters resigned from the services of the applicant company. It is not made clear when Mr Praveen Kumar Jha tendered his resignation. It is not made clear whether prior to resignation Mr Praveen Kumar Jha gave notice for intimation of resignation. Advocate was appointed in the month of June 2014 for filing the complaint. After resignation of Mr Jha, charge was given to Mr Vinayak Pathare sometime in the month of August 2014. Mr Pathare also left the services on 30/04/2015. There was sufficient time to give instructions to the advocates who were appointed by the company in the month of June 2014 before leaving the services by Mr Praveen Kumar Jha as well as Mr Vinayak Pathare. They were in a position to give instructions to the advocates.
9. After resignation of Mr Vinayak Pathare, Mr Vinod Amin, who is Deputy Manager, Insurance was appraised of the matter and was informed that the time limit of two years would end on 11/12/2015. It is not clarified when he approached to his higher officers from the Transformers department. He was on higher position. He could have taken instructions from the staff of the said department, who is well acquainted with the said matter. Apart from that there is a Legal department in applicant company. In absence of legal officer, Mr Praveen Kumar Jha was taking care of legal matters. Legal aid was available to the applicant company. Copies of the resignation tendered by Mr Praveen Kumar Jha and Mr Vinayak Pathare are not filed on record. It appears that officers of the applicant company were not diligent. Ultimately, advocates were constrained to make enquiry from the officials of the applicant company. It shows that the officials of the applicant company were not diligent.
10. Opponent rightly pleaded that the conduct on the part of applicant company would amply indicate that the delay in filing the consumer complaint was due to inefficiency and procrastination on the part of the complainants. We are of the view that period of limitation cannot be extended merely because concerned executives left the services from the employment of the applicant company.
11. It is surprising to say that there was no one in the company to look into the legal matters of the company. The grounds mentioned by the applicant company would amply indicate that delay in filing consumer complaint was an outcome of inefficiency on the part of staff of applicant company.
3. Learned counsel for the appellant has stated that the delay of 217 days was not intentional and should have been condoned. He further contended that in another case titled as EMCO VS The New India Assurance Co. Ltd., (CC no. 459 of 2016) decided on 27.09.2016 the State Commission had condoned the delay of 134 days but had declined to condone the delay of 217 days in the present case.
4. I have gone through the application for condonation of delay filed before the State Commission. The reasons given for the delay are as under:
The cause of action has arisen in favour of the applicant and against the opponents on 11.12.2013, when the applicant came to know that the claim has been repudiated by the opponent. However, despite due diligence and prudence, the present complaint could not be filed within two years therefrom as envisaged under section 24 A (1) of the Consumer Protection Act, 1986;
The applicant states that Mr Praveen Kumar Jha who was the company Secretary, was also taking care of legal matters in the absence of there being any specific legal officer appointed in the company and he was regularly following up with the opponents requesting them to pay the amount of Rs.80,12,522/-. Inasmuch as, the opponents failed to respond to the request of the company, he approached and engaged the advocates in the month of June 2014 for filing the complaint before this Commission. It is further submitted that Mr Jha, however, resigned from services of the applicant company and the charge was handed over to one Mr Vinayak Pathare, sometime in the month of August 2014.
It is submitted that, thereafter Mr Pathare was providing information and the necessary details for filing the present matter. However, it took a considerable amount of time as he was not aware of the actual details of the matter and the technicalities involved in the matter with regard to the installation of and commissioning of the machine. As such it took considerable time to collect all the required information from the staff of the company. Unfortunately, Mr Pathare also left the services of the applicant company for better prospects on 30.04.2015. It is submitted that after the resignation of Mr Pathare, there was no official in the company who was appointed to or capable to look into the legal matters. As such the work in the legal department took a major set-back.
It is submitted that since Mr Jha and Mr Pathare, suddenly left the company the advocates not getting any further instructions from the company, and finally, then, in the month of November 2015, directly tried to contact the officials of the applicant, so as to find out what was to be done with the said matter as the time limit was running out. After a lot of enquiries they came across one office of the company, namely Mr Vinod Amin, who is the Deputy Manager, Insurance. He was apprised of the matter and was informed that the time limit of two years would end on 11.12.2015. Since, the said Mr Amin had no authority to take a decision he approached his higher officers from the Transformers department and was accordingly instructed to look into the matter. It is submitted that since Mr Amin was from the Insurance Department, he was not having any knowledge of the matter, owing to the fact that there was no hand over to charge to anyone in the legal department, it took him considerable time to research for the necessary documentation and information and recompile the same, in respect of the said matter.
It is further submitted that the said documentation was procured by the said officer somewhere around the second week of March 2016 and the file was then put up before the higher authority of the transformer department for discussion and decision. This itself took a while owing to the fact that the officers were held up in other prior commitments pertaining to installation of various machines and towers and electric lines all over the country.
It is submitted that finally the higher management officers after due consultation with the President - Transformers of the company took a decision in principle that the said complaint is required to be filed and the papers were sent to the Advocates in the first week of April 2016. On perusing the papers the advocates found that it was not a simple case of claim as it involved a lot of technical issues and had to be gone into deeply. The advocates had to understand the technical issue first to draft the complaint. Moreover, they were also burdened with their own professional commitments. As such after various discussions between the complainant and their lawyers on the technical, legal and pecuniary aspects the complaint was finalised.
The applicant states that, therefore, there has been a delay of 217 days in filing of the above complaint. The applicant states that it has a very good case on merits.
5. It is seen from the reasons given in the application that no attention was paid to the urgent requirement of filing the complaint in time. There appears to be no follow-up by any top officials of the Company. No specific dates and no specific justifiable reasons have been given to explain the inordinate delay of 217 days. At the same time, it is also well settled that "sufficient cause" with regard to condonation of delay in each case, is a question of fact.
6. The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that:
"It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras".
7. In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:
"The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]".
8. 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."
9. 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 of is not to be swayed by sympathy or benevolence."
10. 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."
11. In view of the foregoing discussion, I do not find any cogent ground to interfere with the impugned order of the State Commission. The appeal is accordingly dismissed, leaving the parties to bear their own costs.
...................... REKHA GUPTA PRESIDING MEMBER