National Consumer Disputes Redressal
National Agricultural Co-Operative ... vs National Insurance Co. Ltd. on 5 February, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 65 OF 2018 (Against the Order dated 23/10/2017 in Complaint No. 2705/2017 of the State Commission Telangana) 1. NATIONAL AGRICULTURAL CO-OPERATIVE MARKETING FEDERATION OF INDIA LTD. (NAFED) R/O. NAFED HOUSE, SIDDHARTHA ENCLAVE, ASHRAM CHOWK. NEW DELHI-110014 ...........Appellant(s) Versus 1. NATIONAL INSURANCE CO. LTD. D/O. DO V, 703, 704, VII FLOOR, MOGUL'S COURT, BASHEERBAGH. HYDERABAD-500001 ...........Respondent(s)
BEFORE: HON'BLE MRS. REKHA GUPTA,PRESIDING MEMBER HON'BLE MR. ANUP K THAKUR,MEMBER For the Appellant : Mr. Aditya Vijayakumar, Advocate For the Respondent :
Dated : 05 Feb 2018 ORDER The present First Appeal has been filed against Order dated 23.10.2017 passed by Telangana State Consumer Disputes Redressal Commission at Hyderabad (for short, the 'State Commission') in CCIA No.953 of 2017 in CCSR No.2705 of 2017.
2. The brief facts of the case are that the Appellant/Complainant--Company obtained a 'Standard Fire and Special Perils Policy' from the Respondent/Opposite Party for the stocks of fully pressed cotton bales stored in Warehouse at Mehaboobnagar, District Adilabad, detail of Policy was given as under:-
Policy No. Policy Period Total sum insured Premium paid 552600/11/12/ 3400000011 17.12.2012 to 16.12.2013 Rs.50 crores Rs.18,29,183/-
It was alleged that due to excess rainfall in the months of June and July, 2013, 474 cotton fully pressed bales stored in Godown, bearing No.2 were damaged. 279 bales were recovered by repressing, leaving 220.880 quintals of cotton bales damaged, which were covered under the policy. The Appellant sent intimation about the damage of cotton bales to the Respondent on 17.07.2013. The Respondent then appointed a surveyor who after conducting the survey, estimated the loss of Rs.26,95,619/-. Thereafter, vide letter dated 03.04.2014, the Respondent repudiated their claim on the ground that, as per the final survey report, the loss to fully pressed cotton bales was due to leakage of rain water through a rooftop rain water drain system as also the leakage of rain water was due to gap in joints or formation of micro holes due to rusting, which was not covered under the insurance policy. The Appellant thus filed a Consumer Complaint before the State Commission seeking the following reliefs:-
" (a) Award the compensation of Rs.99,75,000/-(Rupees Ninety Nine Lacs and Seventy Five Thousand only) directing to be paid by the Opposite Party to the Complainant;
(b) Award future interest on the compensation awarded at the @ 24% per annum from the date of this Complaint till the date of realization;
( c) Award costs of the present Complaint in favour of the Complainant and against the opposite party; and
(d) Pass such other relief or reliefs for which the Complainant may be found entitled and the Opposite Parties may be found entitled."
3. The said Appeal was accompanied by an application for condonation of delay. As per the Appellant, there was a delay of 521 days in filing the Appeal.
4. The State Commission vide their order dated 23.10.2017, while dismissing the Complaint observed as under:-
"4) The delay of 371 days mentioned by the petitioner is not correct. The claim was repudiated on 03.04.2014 by the respondent/opposite party Insurance company. Hence the cause of action has arisen on 03.04.2014. From 03.04.2014, there remains 521 days delay, after deducting limitation period of two years. In view of the above the delay is 521 days but not 371 days as mentioned by the petitioner.
5) At the earliest, the National Commission in Vice Chairman, Delhi Development Authority Vs. O.P. Gauba reported in III (1995) CPJ 18 (NC) opined :
"In our view this does not constitute a valid and sufficient cause for the exercise of our discretion to condone the delay. Proof of sufficient cause is a condition precedent for the exercise of discretion. Inter office consultation for prolonged periods cannot constitute sufficient cause for condonation of delay. The delay cannot be condoned as a matter of generosity because the process of working in D.D.A. has resulted in the delay.".
6) Admittedly, the present application along with the compliant is filed on 08.09.2017. If the petitioner is interested in pursuing the matter, nothing prevented it from filing the complaint within the time. No plausible reasons are assigned as to what made the Petitioner to keep silent for such a long time. This shows the negligence and callousness on the part of the Petitioner in filing the complaint.
7) The cause shown for occurrence of delay is that they intimated the insurance claim to the respondent/opposite party on 17.07.2013 and there has been enormous communication between the parties till 28.06.2016, they have issued legal notice on 22.04.2017 and reply notice was issued by the respondent/ opposite party on 20.05.2017 and the complaint is filed on 08.09.2017 and hence the complaint is filed within the stipulated period of limitation. Since the claim was repudiated on 03.04.2014, the limitation starts from on that date and hence the delay is 521 days. This explanation is not a 'sufficient cause' and no other reasonable ground was pleaded. Hence , the cause shown by the Petitioner is not reasonable and plausible.
8) The Petitioner was not diligent enough in pursuing the matter and kept quiet and slept for months together and has come with the present application seeking to condone the whopping delay of 521 days. No bonafides are shown to accept the version of the Petitioner/complainant to condone the abnormal, exorbitant and whopping delay of 521 days in filing the complaint. The cause for the delay shown by the Petitioner appears to be superficial. This Commission does not see any reasonable ground to accept the version of the Petitioner.
9) It is to be mentioned that in an application for condonation of delay, one cannot adopt a hyper technical approach and has to follow a rational and pragmatic approach rather than pedantic while examining explanation about " every day's delay". Having said that, it has to be kept in view that " sufficient cause" for condoning the delay being a question of fact, each case has to be examined in the light of its own peculiar facts and circumstances. In R. B. Ramalingam Vs. R. B Bhavaneshwari, 2009 (2) Scale 108, the Apex Court has observed thus :
"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) There are no merits in the averments made by the petitioner. It is to be stated that in the cases of delay, the matters have to be resolved by applying principles of natural justice, equity etc. In the case on hand, the Petitioner/Appellant failed to convince to show 'sufficient cause' to condone the delay.
13) The parties seeking relief have to satisfy the court that he/she has sufficient cause for not filing the complaint within the time prescribed and the explanation has to cover the entire period of delay. A litigant cannot be permitted to take away a right which has accrued to his adversary by lapse of time. Proof of 'sufficient cause' is a condition precedent for the exercise of discretion of jurisdiction vested in this Commission under Section 17 of the Consumer Protection Act. The discretion conferred on this Commission is a judicial discretion and is exercised to advance justice and even if there is a strong cause for acceptance of the complaint that would not be a ground for condoning the delay. Consumer Protection Act provides for speedy redressal of consumer disputes. It follows that the delay cannot be allowed to occur in a routine way and sufficient cause should be made out with specific reasons supported by material and that the discretion for entertaining the complaints filed beyond the prescribed period will not be exercised in a light and routine manner.
14) We may also state that the petitioner should not be denied the right accrued to it on expiry of limitation provided for filing the complaint. What is required is that the explanation has to be reasonable, plausible and believable. Mere explanation without supporting material is not sufficient ground for condoning the delay in favour of applicant. If it does not satisfy the ingredients of Section 17 of the Consumer protection Act, 1986, and that it does not reflect sufficient cause, then the application deserves no consideration. When consistently rigmarole facts are pleaded without any justification or proof, the delay of 521 days cannot be condoned.
15) In the result, the Petition is dismissed. Consequently, the complaint is rejected but in the circumstances, no costs."
5. Hence, the present Appeal.
6. This Appeal has also been filed with the delay of 34 days as per the Appellant and 45 days as per the Registry.
7. We have heard the learned counsel for the Appellant. He contended that after receiving the first repudiation letter dated 03.04.2014, the matter was taken up with the Respondent for reconsideration. The Respondent finally repudiated the claim vide their letter dated 28.08.2016 and the Complaint was filed before the State Commission on 08.09.2017 well within the period of limitation as per the Act.
8. We have gone through the application for condonation of delay filed by the Appellant/Complainant along with the Consumer Complaint filed before the State Commission. The said application is mere repetition of the facts of the Consumer Complaint. The only para in this Application explaining the delay is Para 13, which reads as under:-
"13 I humbly submit that, the claim of the Petitioner/Complainant company was intimated to the Respondent/Opposite Party on 17.07.2013, and there has been enormous communication between the parties till 28.06.2016. However, the legal notice was issued by the Petitioner/Complainant claiming the insurance claim, interest and costs technically from the Respondent/Opposite Party on 22.04.2017 and the Respondent/Opposite Party the reply Notice on 22.05.2017. Thus, the present Consumer Case is presented within the stipulated period of limitation. But, since the Respondent/Opposite Party is claiming that they have refused the claim of the Petitioner/Complainant Company on 03.04.2014 itself, by way of abundant caution, the Petitioner/Complainant Company is filing this application for condonation of delay. Hence this application."
9. A Coordinate Bench of this Commission vide their order dated 02.08.2011 passed in Revision Petition No.640 of 2006 titled as Ramratan M. Shriwas Vs. Jayant H. Thakkar, observed as under;
"(2) We agree with the view taken by the fora below. It is well established by catena of judicial pronouncements that once a period of limitation starts, it cannot be enlarged or extended by prolonged correspondence between the parties. The provision regarding limitation period contained in section 24A being of mandatory nature, the fora below was duty bound to determine whether the complaint is within the limitation period and since on consideration of the material placed before them, they found that the complaint was barred by limitation and sufficient cause had not been made out to condone the delay in question, no fault could be found with the impugned orders."
10. The Hon'ble Supreme Court also in a similar case Civil Appeal No.2067 of 2002 in case titled as State Bank of India Vs. B.S. Agricultural, observed as under;
"14. The said letter clearly instructs the Bank to return the documents if not honoured by drawee by June 7, 1994. Obviously, the cause of action accrued to the complainant on June 7,1994 when it did not receive the demand draft for Rs.2,47,154/- nor received the documents. The limitation, thus, began to run from June 7, 1994. The complaint ought to have been filed within two years therefrom which in fact was not done as the complaint was filed much thereafter i.e., on May 5, 1997. The complaint was apparently time barred. Learned counsel for the complainant would, however, submit that the complainant sent various letters to 10the Bank and vide their reply dated March 11, 1997, the Bank asked the complainant to forward a copy of the letter dated May 4, 1996 for necessary action. It was thus contended by the learned counsel for the complainant that complaint filed on May 5, 1997 was within time. We are afraid the letters dated March 15, 1995, May 4, 1996 and March 1, 1997 sent by the complainant to the Bank and the Bank's reply dated March 11, 1997 are of no help to the complainant. The Bank has not by their reply dated March 11, 1997 acknowledged its liability. The Bank only wanted the complainant to send a copy of the letter dated May 4, 1996 for necessary action. By no stretch of imagination, it can be said that the limitation came to be extended by Bank's reply dated March 11, 1997. As a matter of fact, the Bank had communicated to the complainant long back vide its letter dated March 28, 1995 that the bills have been returned to B.M. Konar (Sales Manager of the complainant firm) on May 10, 1994 and the matter should be taken up with him (B.M. Konar). The complaint filed on May 5, 1997 is even beyond two years therefrom. There is no application for condonation of delay nor any sufficient cause shown and, therefore, the question of condonation of delay in filing the complaint does not arise. 11
15. On its plain averments, the complaint is barred by time and ought to have been dismissed as such but curiously this aspect was not examined by any of the consumer fora although specific plea to this effect was taken by the Bank."
11. In view of the above, we are of the view that the State Commission passed an appropriate Order by dismissing the Complaint of the Appellant/Complainant on the ground of limitation as the Complainant failed to justify the inordinate delay of 521 days in filing the Complaint before the State Commission. We fully agree with the finding of the State Commission that the claim of the Appellant/Complainant was repudiated on 03.04.2014 and the correspondence exchanged between the Complainant and the Respondent/Opposite Party cannot extend the period of limitation. Further, it is seen that the only correspondence placed on the record with regard to the repudiation are from 04.03.2016 onwards. It means, the Complainant took no action over a period of two years from the date of repudiation of its Claim dated 03.04.2014 in this regard.
12. Even after having the Complaint dismissed on limitation by the State Commission, the Appellant has filed the present Appeal with the delay of 45 days. The reasons given in the application for condonation of delay are as under:-
"2. After receipt the order dated 23.10.2017 on 01.11.2017, the contents of the order was noted in a file and the order was sent for review. Upon review, it was felt that advice of a legal advisor in Telangana be taken. Accordingly the file and the order was sent for review to the advisor in Telangana. Surprisingly, the advisor advised that the Appellant file a writ petition in the Telangana High Court and the said advisor also circulated a draft writ petition by the fourth week of November, 2017.
3. The head office of the Appellant also reviewed the matter considering that the petition, whereby the Appellant was to receive an enormous compensation from the Respondent, stood dismissed. Accordingly, the various officials of the head office of the Appellant, including in house legal advisor took a decision to file the present appeal instead of the misguided advice of filing a writ petition. This was undertaken by the 2nd 3rd week of December, 2017.
4. In the interregnum, the entire docket/files including the documents appended in the State Commission was requisitioned. However, the said file did not have the certified copy of the order. Accordingly, yet another requisition was made for certified copy of the order.
5. By this time, the officials of the Appellant thus sought the approval of the Managing Director to appoint a legal advisor. The approval was obtained only on 29.12.2017. By this time, the advocate so engaged was away for vacations. Immediately upon his return i.e. on 03.01.2017, the matter was assigned to the said advocate and the present appeal was prepared.
6. It is most respectfully submitted that the present appeal could not filed within the period of 30 days. The delay, if any, of not filing it within the 30 days has been caused due to exigencies beyond the control of the Appellant and is not intentional. Grave prejudice will be caused to the Appellant in case the present application is not allowed."
13. We are not convinced with the above reasons given in the application as the Appellant has failed to explain day to day delay of 45 days in filing the present Appeal except by giving the explanation for administrative delay. The Appellant has also failed to mention the names and designations of the officials of the head office to whom the matter was referred to, date on which, it was referred and how much time they had to take the decision for filing of the present Appeal. He failed to give the date, when the in house legal advisor/advocate took the decision to file the present Appeal as also when the certified copy of the order of the State Commission was obtained. It would be pertinent to note, that even after dismissal of its Appeal on the ground of limitation before the State Commission, the Appellant did not become wiser and filed this Appeal after expiry of period of limitation with delay of 45 days, before this Commission. From the above, it is clearly established that the Appellant has been pursuing the matter from its inception in a very casual and negligent manner both before the State Commission as also this Commission.
14. It is well settled that "sufficient cause" for condoning the delay in each case is a question of fact.
15. 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."
16. Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down 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."
17. Decision of Anshul Aggarwal (supra) has been reiterated in Cicily Kallarackal Vs. Vehicle Factory, IV (2012) CPJ 1 (SC) 1, wherein Hon'ble Supreme Court observed;
"4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).
5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.
6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay."
18. Thus, no sufficient ground has been shown by the Appellant for seeking condonation of delay of 45 days before this Commission. Even otherwise, the State Commission rightly exercised its discretion in not condoning the inordinate delay of 521 days which was there at the time of filing of Appeal before it. Hence, the present Appeal is dismissed on both counts on merit as well as on limitation.
...................... REKHA GUPTA PRESIDING MEMBER ...................... ANUP K THAKUR MEMBER