National Consumer Disputes Redressal
M/S. Hanspal Steel vs National Insurance Co. Ltd. & 2 Ors. on 10 January, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3258 OF 2016 (Against the Order dated 26/06/2014 in Appeal No. 93/2014 of the State Commission Himachal Pradesh) 1. M/S. HANSPAL STEEL THROUGH ITS OWNER/PROPRIETOR, DAMTAL, TEHSIL INDORA, DISTRICT-KANGRA, HIMACHAL PRADESH ...........Petitioner(s) Versus 1. NATIONAL INSURANCE CO. LTD. & 2 ORS. THROUGH ITS ADMINISTRATIVE OFFICER, DIVISIONAL OFFICE, HIMLAND HOTEL, CIRCULAR ROAD, SHIMLA HIMACHAL PRADESH 2. AKHLENDER SINGH GULERIA, S/O. SH. RAJINDER SINGH GULERIA, THROUGH ITS OWNER/PROPRIETOR, R/O. VILLAGE AND POST OFFICE TRILOKPURI, TEHSIL JAWALI, DISTRICT-KANGRA HIMACHAL PRADESH 3. P.S. GULERIA, ADMINISTRATIVE OFFICER, NATIONAL INSURANCE COMPANY LTD., K.B. DHARAMSHALA, DISTRICT-KANGRA HIMACHAL PRADESH ...........Respondent(s)
BEFORE: HON'BLE MRS. REKHA GUPTA,PRESIDING MEMBER
For the Petitioner : MR. SHUBHAM BHALLA For the Respondent :
Dated : 10 Jan 2017 ORDER
REKHA GUPTA, PRESIDING MEMBER
The present revision petition no. 3258 has been filed against the judgment dated 26.06.2014 of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla('the State Commission') in First Appeal no. 93 of 2014.
2. The brief facts of the case as per respondent no. 2/ complainant that he had left the chassis of his vehicle he had purchased with the petitioner, i.e., the OP no. 3 for fabricating the body. The chassis was duly insured with respondent no. 1, i.e., OP no. 1. The petitioner charged Rs.1,05,000/- for fabrication of the body. The Chassis were parked at the premises of the workshop of the petitioner at Damtal under the supervision of Mr Rattan Chand, Chowkidar. The chassis were stolen on the intervening night of 20th July 2007. FIR no. 154 of 2007 was registered with the Police Station, Indora. Intimation was also given to the Kangra Central Co-operative Bank as also respondent no. 1, i.e., OP no. 1. Respondent no. 1 while admitting that the vehicle of the complainant was insured with the respondent no. 1 stated that there was collusion between respondent no. 2, i.e., complainant and petitioner, i.e., OP 3. Chowkidar Shri Rattan Chand was 72 years old and was not competent to safeguard the property against theft. The repairer and the insured had not taken reasonable care to safeguard the property which constitutes breach of the terms and conditions of the policy. Petitioner/ OP no. 3 while admitting that the vehicle was handed over for fabrication and it was stolen from the workshop stated that petitioner was not liable for the loss.
3. The District Consumer Disputes Redressal Forum, District Kangra at Dharamshala (HP) ('the District Forum') vide its order dated 20.01.2014 while allowing the complaint gave the following order:
"Accordingly, the compliant is partly allowed against OP no. 1 but the same is dismissed against OP nos. 2 & 3. The opposite parties no. 1 is directed to pay Rs.9,09,580/- to the complainant along with interest @ 6% per annum from the date of complaint, till its actual payment. The complainant is also held entitled for Rs.5,000/- as compensation for harassment and towards litigation charges".
4. Aggrieved by the order of the District Forum, the respondent no. 1 - insurance company filed an appeal before the State Commission. The State Commission in their order dated 26.06.2014 held as under:
"9. Vehicle at the time of its theft was with respondent No.2 in the capacity of a bailee. Being bailee, respondent No.2 was under contractual obligation to ensure the safety and security of the vehicle. Gurmukh Singh, who in his affidavit, Annexure CW-2, claims to be the proprietor and the Manager of respondent No.2, testified that body building work was completed on 30th July, 2007, around 06.00 p.m., and thereafter, the vehicle was parked inside the gated premises of respondent No.2. However, when cross examined by the appellant, he stated that vehicle had been parked outside the four walled gated premises of the workshop and that the site where it was parked belonged not to respondent No.2, but to the Government. He admitted that total area of the workshop within four walls is 1300-1400 square yards. He offered no explanation for not parking the vehicle inside the gated premises of the workshop. Not only this, he stated in the cross-examination that earlier also 5-6 vehicles had been stolen from that area. Now, when prior to the occurrence, in question, 5-6 thefts of vehicles from that area had taken place, it was all the more obligatory for respondent No.2 to have parked the vehicle inside the gated premises of the workshop, besides taking other requisite steps to ensure that the vehicle was not stolen.
14. As a result of the above discussion, appeal is partly allowed to the extent that in addition to the liability of the appellant to pay insurance money and litigation expenses, as ordered by the learned District Forum, respondent No.2 is also liable to pay compensation equivalent to the insurance money, i.e. Rs. 9,09,580/-, with interest at the rate of 6% per annum, from the date of filing of the complaint, to the date of its payment, together with an additional amount of Rs.5,000/-, on account of compensation for harassment and litigation expenses to respondent No.1 and its liability to pay the aforesaid compensation of Rs.9,09,580/- with interest and compensation is joint and several with the liability of the appellant to pay a sum of Rs.9,09,580/-, on account of insurance money and Rs.5,000/-, on account of compensation and litigation expenses and the appellant on getting stepped into the shoes of respondent No.1, as aforesaid, will have the right to recover the money, which it may pay to respondent No.1, pursuant to the order of the learned District Forum from respondent No.2".
5. Hence, the present revision petition. We have heard the learned counsel for the petitioner.
6. Revision petition has been filed with an application for condonation of delay. The application does not mention the days of delay and has left it blank. The reasons given in the application for condonation of delay are as under:
2. The final order dated 26.06.2014 passed by the State Commission of Shimla was never communicated to the petitioner by the State Commission. In fact, the petitioner has checked and inspected the record of the State Commission and the same shows that the impugned order had been despatched but the same was never served on the petitioner as there is no acknowledgment on the record.
3. The petitioner would like to apprise this Hon'ble Court that the petitioner was not able to challenge the order of the Stat Commission as he was not aware that the order had been passed against him. In fact, the petitioner was under the impression that the order of the District Forum had been upheld by the State Commission, as was informed to him by his lawyer at Shimla. It was only when the petitioner was sent the summons in the execution filed by the insurance company that he became aware that the judgment of the State Commission is against him. The same is annexed with the present revision petition.
4. The summons to appear in the execution petition were served on the petitioner 2nd week of September 2016 after which he got in touch with this lawyer and asked him as to what had actually happened in the appeal. The petitioner in fact confronted his counsel at Shimla asking him that he had informed him verbally that the order of the District Forum had been upheld, which was incorrect but no answer was forthcoming from his counsel.
5. Faced with such a situation the petitioner approached his lawyer at the District who apprised him that he would have to challenge the State Commission's order. At this juncture the petitioner would like to apprise this Hon'ble Court that he is a small time workshop owner and his entire workshop is dependent on him. Due to already pending work oders he did not have time to come to Delhi to engage a lawyer., He was only able to come to Delhi in the 3rd week of October 2016 and show his documents.
6. He was asked to collect the entire record of the case in order to file the revision petition before this Hon'ble Court. The petitioner thereafter, applied for the certified copy of the case and the same was delivered by the Forum in the 1st week of November 2016. The same could only be sent to his lawyer by the 2nd week of November 2016 after which the revision petition was prepared. Further, since the cross-examination of some of the witnesses was in Hindi the same had to be translated. The moment the translations were done the petitioner was filed at the earliest".
7. Learned counsel for the petitioner had contended on 8th December 2016 that though the final order was passed on 26.06.2014, but no copy thereof was served on the petitioner and hence there was a delay in filing the revision petition. A report was sought from the State Commission in this regard. As per the report dated 23.12.2016 of the State Commission, FA no. 93 of 2014, titled as National Insurance Company Limited vs Akhlender Singh Guleria son of Shri Rajinder Singh Guleria and Ors., was decided by the State Commission on 26.06.2014. As per the record of State Commission, the first free copy of the order dated 28.06.2014 was prepared by the copy clerk on 28.06.2014. The entry of the copy with regard to the petitioner who was respondent no. 2, was at serial no. 1400 which was dispatched to the petitioner by the despatch clerk on 14/15-07.2014 through registered letter no. ARE786132861IN. From the report of the State Commission, there is no doubt that the free certified copy of the order was despatched to the petitioner on 14/15.07.2014 through registered letter. There is no report of the State Commission of the non-delivery of the said letter.
8. I have heard the counsel for the petitioner. He had no explanation to give with regard to the delay of 771 days, apart from the fact that the free copy may have despatched but as per his instructions the petitioner still did not receive the order. He could not explain why after receiving the copy of the order for such a long period the petitioner made no attempt to obtain the same either from his counsel or from the State Commission. Even in the application, the petitioner has failed to give the date on which he approached the State Commission to check and inspect the records nor has he made any attempt to ascertain the position with regard to the delay/ non delivery of the registered letter from the post office.
9. In view of the above, I find that the petitioner has failed to give a detailed day to day reason to condone the delay of 771 days and as such the petitioner has failed to give 'sufficient cause' to condone the delay. This view is further supported by the following judgment:
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".
In R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, it has been observed that "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".
In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed that "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 Section 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 bonafides may fall for consideration; but the scope of the inquiry 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."
In Sow Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807, it was held that "the expression 'sufficient cause' cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such 'sufficient cause' stated in the application and no such interference in the impugned order is called for".
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]".
10. Accordingly, I find that there is no 'sufficient cause' to condone the delay of 771 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition is dismissed being barred by limitation.
...................... REKHA GUPTA PRESIDING MEMBER