Consumer Law

National Insurance Co.Ltd vs Sri. Tinku Ghosh

we are of the opinion that the delay in filing the instant appeal has not been explained properly as required and the same is also not bona fide

Tripura State Consumer Disputes Redressal Commission, Agartala.

National Insurance Co.Ltd vs Sri. Tinku Ghosh

Case No.A.1.2017

The National Insurance Company Ltd. Agartala Divisional Office,

Akhaura Road, Agartala, District – West Tripura.

… … … … Appellants/Opposite Party.

Vs

Sri Tinku Ghosh,

S/o Late Nandalal Ghosh,

Sherowali Tour & Travels,

L.N. Bari Road, Agartala,

P.S. East Agartala, District – West Tripura.

… … … … … Respondent/Complainant.

Present

Mr. Justice U.B. Saha, President, State Commission, Tripura.

Mrs. Sobhana Datta, Member, State Commission, Tripura.

Mr. Narayan Chandra Sharma, Member, State Commission, Tripura.

For the Appellant: Mr. Sandip Dutta Choudhuri, Adv.

For the Respondent: Mr. Bijan Saha, Adv.

Date of Hearing: 12.05.2017.

Date of Delivery of Order: 23.05.2017.

O R D E R

U.B. Saha, J, The instant appeal is filed by the appellant, National Insurance Company Ltd., Akhaura Road, West Tripura, Agartala under Section 15 of the Consumer Protection Act, 1986 against the judgment dated 04.10.2016 passed by the Ld. District Consumers Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No. C.C. 39 of 2016 along with an application for condoning the delay of 66 days in preferring the appeal against the aforesaid judgment.

Heard Mr. Sandip Dutta Choudhuri, Ld. Counsel appearing for the appellant-National Insurance Company Ltd. (hereinafter referred to as opposite party/Insurance Company) as well as Mr. Bijan Saha, Ld. Counsel appearing on behalf of the respondent-complainant (hereinafter referred to as complainant).

Facts needed to be discussed are as follows:-

The respondent-complainant Sri Tinku Ghosh is the registered owner of the vehicle bearing No.AS-01/Y-7379 (Bus) and the said vehicle was duly insured with the opposite party Insurance Company vide Policy No.203000/31/11/63000/10367 and the validity of the said policy was for one year i.e. w.e.f. 17.02.2012 to 16.02.2013. On 08.08.2012, the aforesaid insured vehicle of the complainant met with an accident on National Highway – 44 at Meghalaya. The vehicle fell in a deep lunga and it was fully damaged and 32/33 passengers sustained severe injuries. Some of the passengers also died. Thereafter, in respect of the aforesaid accident, an FIR was lodged before the Officer-in-Charge, Khliehriat Police Station. As the aforesaid vehicle met accident during the validity of the Insurance Policy, the complainant claimed compensation for damage of the vehicle along with all relevant documents in time. Thereafter, he was waiting for reply, but did not get any positive response from the opposite party Insurance Company. On 26.03.2013, the complainant had submitted further claim for compensation along with all relevant documents, such as ‘estimate’, amounting to Rs.19,92,100/- only etc. as required by the opposite party. Finally, the opposite party Insurance Company repudiated the claim on the ground that the policy condition was violated. Complainant had spent a huge amount for repairing the vehicle and ultimately, filed a claim petition before the District Forum under Section 12 of the C.P. Act claiming an amount of Rs.19,92,100/- as compensation.

The opposite party Insurance Company appeared and filed written statement denying the claim of the complainant. It is stated that as per policy condition, complainant is supposed to carry 38 passengers, but the insured vehicle carried 39 passengers, more than sitting capacity. Therefore, the policy condition was violated. Hence, complainant is not entitled to get any compensation.

The Ld. District Forum after considering the evidence on record as well as the documents exhibited, allowed the petition of the complainant and directed the opposite party Insurance Company to pay Rs.7 lacs as compensation after exclusion of the depreciation value of the vehicle and also Rs.10,000/- as cost of litigation within two months to the complainant, if the amount is not paid in time, then the same will carry interest @9% per annum.

Being aggrieved by the judgment of the Ld. District Forum, the instant appeal is filed by the opposite party Insurance Company along with a condonation petition for condoning the delay of 66 days as stated (supra).

In the condonation petition, particularly in Paragraph-2, it is stated that the impugned judgment was passed on 04.10.2016 and the limitation expired on 03.11.2016, but the opposite party Insurance Company could not file the appeal during that time as after receiving the copy of the judgment, the concerned counsel sent the same to the opposite party on 26.10.2016 as the copy of the judgment was not ready till 07.10.2016. Thereafter, puja vacation started and after vacation, counsel collected the copy of the judgment and submitted the same on 26.10.2016 to the opposite party Insurance Company. The appellant-Insurance Company as per advise of their counsel sent the file to the Regional Office, Guwahati along with the claim docket on 04.11.2016 and the Regional Office sent the file back to Agartala on 20.12.2016 for preferring an appeal. The appellant on 22.12.2016 informed the same to their counsel over telephone and in reply, the counsel stated that he was going out of station on 24.12.2016 and would return on 30.12.2016 and as such, file might be sent to him on the first week of January 2017. Accordingly, the file was handed over to the counsel on 04.01.2017 and the counsel, thereafter, filed the appeal on 09.01.2017.

The respondent-complainant filed objection against the prayer for condonation of delay of 66 days in preferring the appeal. The grounds for objection against the prayer for condonation is stated have been Para-6 of the objection petition which are as follows:-

“6. That, the contention of Para-2 of the instant Application for condonation of delay, to the effect, that, the concerned counsel send the copy of the Judgment to the Petitioner on 26.10.2016 as the copy of the judgment was not ready till 07.10.2016 and/or after vacation counsel collected the judgment and submitted the same on 26.10.2016 to the appellant company, is hereby strongly and vehemently denied and disputed by the Respondent herein.

Assuming, but not admitting, that, this is the fact, then also it has been crystal clear, that, there has been huge deliberate latches and negligence on the part of the Petitioner-Appellant herein, because the said puja vacation ended on 15.10.2016 and the Petitioner-Appellant took 11 days for collecting the Judgment whereas the distance between the office of the Petitioner-Appellant and/or the concerned Counsel is mater of 5 minutes.

The further contention that, the Petitioner-Appellant as per advise of their counsel sent the file to the regional office, Guwahati on 04.11.2016 and the regional office send the file back to Agartala on 20.12.2016 for preferring an appeal, is hereby strongly and vehemently denied and disputed by the Respondent herein. The further contention that, the appellant on 22.12.2016 informed their counsel for appeal over telephone and in reply the counsel stated that he was going out of station on 24.12.2016 and will return on 30.12.2016 and/or file may be sent to him on the 1st week of January, 2017, and accordingly the file was handed over to the counsel on 04.01.2017, is hereby strongly and vehemently denied and disputed by the Respondent herein.

Here also, assuming, but not admitting that, the aforesaid contention under denial, is fact, then also the attention of the Hon’ble State Commission requires to be drawn, that, the Appellant spent 47 days for taking decision for preferring appeal. Not only that, the Ld. Counsel returned back on 30.12.2016, as contended in the application, but the file was handed over on 04.01.2017 to the Ld. Counsel and here also they took 5 days. As such during that period of 52 days the Appellant set idle, which proves, without any doubt, that, there was sufficient latches and negligence on the part of the Petitioner-Appellant herein in preferring the appeal.”

Mr. Dutta Choudhuri, Ld. Counsel appearing for the appellant-opposite party, Insurance Company while urging for condoning the delay of 66 days submits that the delay has been properly explained in paragraph-2 of the condonation petition and more so, the impugned judgment is liable to be set aside as the Ld. District Forum failed to consider the terms and conditions of the policy. He has also submitted that the sitting capacity of the insured vehicle is 38+1, but from the charge sheet submitted by the police, it appears that total 54 passengers were carried. He finally contended that no Court has the power to re-write the terms and conditions of the policy as the same have to be construed as it is and there is no scope of adding or subtracting something.

Mr. Saha, Ld. Counsel appears on behalf of the respondent-complainant while opposing the prayer for condonation of delay would contend that the judgment was delivered on 04.10.2016 by the Ld. District Forum and the puja vacation started from 10th October 2016 and ended on 15th October 2016 and the appellant-opposite party collected the certified copy of the judgment on 25.10.2016 i.e. 10 days even after ending of the puja vacation and no explanation has been given for those 10 days and not only that, the appellant-opposite party received the certified copy of the judgment on 26.10.2016 and sent the file to their Regional Office at Guwahati on 04.11.2016 and admittedly, the Regional Office sent the file back to Agartala on 20.12.2016 for preferring the appeal and the appellant-Insurance Company on 22.12.2016 informed their counsel for preferring appeal over telephone and in reply to that, the counsel of the appellant informed that he would be out of station on 24.12.2016 and would return in the first week of January 2017 and ultimately, the appeal was filed on 09.01.2017 i.e. the appellant took almost 47 days for taking decision for preferring the appeal which itself shows that the appellant-Insurance Company was not vigilant so far preferring of the appeal in time.

We have gone through the record of the Ld. District Forum including the Peon Book through which the certified copy of the judgment was served upon the parties. From the Peon Book it appears that the Ld. Counsel of the respondent-complainant collected the certified copy of the judgment on 20.10.2016 and the Ld. Counsel of the appellant Insurance Company, Mr. Sandip Dutta Choudhuri received the certified copy of the judgment on 25.10.2016. It also appears from Para-2 of the condonation petition that the appellant-Insurance Company sent the case file to its Regional Office on 04.11.2016 and the Regional Office sent back the file to the appellant on 20.12.2016, but there is no mention, as to why the file was remained with Regional Office for near about 15 days to take decision and not only that, when the Ld. Counsel informed the Insurance Company that he would be out of station from 24.12.2016 to 30.12.2016, then why the Insurance Company waited for the said Counsel, as they can easily engage any other Counsel from their panel to file the appeal. The Insurance Company is not like a rustic litigant. They are very much aware about the practice and procedure of the Court in preferring an appeal.

Contention of the appellant that the delay caused due to departmental involvement and decision-making process cannot be a sufficient ground to condone the delay. Delay in filing appeal cannot be condoned as a matter of generosity, rather there is proff of sufficient cause, discretion for condonation of delay cannot be exercised. In the application, nothing has been stated as to why the Regional Office of the opposite party-Insurance Company took near about 15 days’ time to take decision in preferring an appeal and to whom the file was entrusted and what he had done with the file during that period.

In Basawaraj & Anr. Vs The Spl. Land Acquisition Officer (Civil Appeal No.6974 of 2013), the Hon’ble Apex Court observed that “It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. ‘A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.’ The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim ‘dura lex sed lex’ which means ‘the law is hard but it is the law’, stands attracted in such a situation. It has consistently been held that, ‘inconvenience is not’ a decisive factor to be considered while interpreting a statute.”

Sufficient cause’ is the cause for which the opposite parties could not be blamed for their filing of appeal in time. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. In other way, it can be said that “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. In the instant case, admittedly, there is no explanation for the period from 27.10.2016 to 03.11.2016 and 05.11.2016 to 19.12.2016.

As per settled law, culled out from various judicial decisions, the above expression, ‘sufficient cause’ though deserves to receive a liberal construction, yet, a just and equitable balance has to be maintained between the right secured by the respondent as a result of the expiry of the prescribed period of limitation and the injustice of depriving the appellants of adjudication of their grievances on the merits of their appeal for causes beyond their reasonable control, which means the cause is bona fide and beyond the control of the appellants. There is no hard and fast rules, what should be the ‘sufficient cause’ in a given case.

In Anshul Aggarwal Vs New Okhla Industrial Development Authority IV (2011) CPJ 65 (SC), the Hon’ble Apex Court while dealing with the issue pertaining to condonation of delay observed as follows:-

“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.”

Again in Cicily Kallarackal Vs Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein the 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”.

In the aforesaid judgment Hon’ble Supreme Court has highlighted that while dealing with an application for condonation of delay the Court must bear in mind the object of expeditious disposal of consumer dispute which would get defeated if the Court was to entertain highly belated petitions.”

The appellant-opposite parties have failed to explain the delay properly except the reasons for causing delay due to departmental involvement, which cannot be a ground for condoning the delay as stated (supra). We have also gone through the impugned judgment as well as the grounds stated in the memo of appeal.

Upon consideration of the reasons for delay as explained in Paragraph-2 of the condonation petition, we are of the view that from the explanation itself reveals the total apathy and laches on the part of the officials of the appellant-Insurance Company, which in no way can be termed as ‘sufficient cause’ so as to call for our indulgence in condoning the delay of 66 days.

Considering the entire facts and circumstances, we are of the opinion that the delay in filing the instant appeal has not been explained properly as required and the same is also not bona fide. Accordingly, the condonation petition is dismissed and in consequent thereto, the appeal also stands dismissed.

Send down the records to the Ld. District Forum, West Tripura, Agartala.

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura

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Categories: Consumer Law

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