IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
IA No. 105/2021
in
C C No. 79/2021
Dated, the 12th day of April, 2021.
Petitioner : Madhukumar,
S/o. Hariharan Achari,
Panthaplakizhakkethil house,
R.P.C. Post Office,
Mundakkayam, Erumeli.
(Adv. Jolly James)
Vs.
Opposite parties : Divisional Officer,
Oriental Insurance Company Ltd.
Divisional office, Kottayam.
O R D E R
Sri. Manulal V.S. President
This IA is filed by the complainant under Section 69 (2) of Consumer Protection Act 2019 to condone delay of 2923 days caused in filing the complaint. Heard the counsel for the complainant / petitioner, the case of the petitioner/complainant is that he was the registered owner of motor cycle bearing Reg.No. KL 05-S-4452. The said vehicle was insured with the respondent/opposite party for the period of 20-01-2005 to 19-01-2006. On 06-03-2005 the said vehicle met with an accident at Chengannoor-Parumalakadv road. Due to the said accident, the rider of the motor cycle bearing KL-03-J-8513 has got insured and subsequently succumbed to death. The police authorities of Pulikeezh police station has registered a case vide crime no.169/2005 under Section 279, 337, 338, 304(A) of IPC read with Section 3(1) of Motor Vehicle Act. The Hon’ble Judicial First Class Magistrate, Thiruvalla had tried the case as CC 881/2005.
The legal heirs of Santhosh Kurian, who died in the accident had filed petition before the Additional Motor Accidents Claims Tribunal, Pathanamthitta vide O.P.(M.V.) No.141/06. The petitioner/complainant had received the notice from the Hon’ble MACT. After receiving the notice from the Hon’ble MACT as per the direction of the respondent/opposite party, the petitioner had handed over the relevant documents including the policy certificate to the respondent/opposite party. It is averred in the petition that the petitioner did not care to conduct the case before the Hon’ble M.A.C.T. by believing the respondent/opposite party that they would conduct the case for and on behalf of petitioner herein. However the respondent/opposite parties had took a contention in the said case before the MACT that the rider of the vehicle had not possessed a valid driving license at the time of accident. The Hon’ble Additional MACT, Pathanamnthitta ordered Rs.8,20,800/- to the legal heirs of deceased Santhosh Kurian as compensation and directed the respondent/opposite party to pay the same amount and realize the same from the petitioner / complainant. The said order was pronounced by the Hon’ble MACT on 02-04-2011. The petitioner / complainant came to know about the order of MACT only on 24-06-2014 when he had received a notice in an execution petition, which was filed by the respondent / opposite party here in against the petitioner / complainant. Thereafter the petitioner / complainant filed an M.A.C.A. No.1607/14 before the Hon’ble High Court of Kerala and Hon’ble High Court of Kerala had dismissed the M.A.C.A without condoning the delay on 10-06-2015.
After receiving the particulars of the driving license of Ratheesh Kumar, who was the rider of motor cycle at the time of accident, it was learn by the petitioner / complainant that the said Ratheesh Kumar had a valid driving licence from 27-12-2002 to 26-12-2022. Thereafter on 18-08-2015 the petitioner / complainant filed a review petition before the Hon’ble High Court of Kerala stating all the facts. On 20-08-2015 the Hon’ble High Court of Kerala dismissed RP No.733/2015. Aggrieved by this Order, the petitioner / complainant filed a special leave petition before Hon’ble Supreme Court of India. The said special leave petition was dismissed by Hon’ble Supreme Court of India on 27-11-2015. Thereafter the petitioner / complainant had filed interlocutory application to condone the delay and set aside the exparte order passed by the Additional Motor Accident Tribunal, Pathanamthitta in O.P. (M.V.) No.141/2006 before the Hon’ble Additional Motor Accident Claims Tribunal, Pathanamthitta. The said Interlocutery application was dismissed by the Hon’ble Additional Motor Accident Claim Tribunal on 17-12-19.
It is averred in the petition that the respondent/opposite party is legally bound to indemnify the petitioner / complainant as per the terms and conditions of the insurance policy. It is further averred in the complaint that by knowing the fact that the name of the rider of the motor cycle is wrongly incorporated as Ratheesh in O.P.M.V.141/2006. The opposite parties did not care to take this actual fact to the notice of the MACT or the complainant. Due to careless and negligent act of the respondent / opposite party the Hon’ble Motor Accident Tribunel had passed the order against the petitioner / complainant. It was stated in the affidavit along with the petition that the delay in filing the complaint has caused because the petitioner / complainant was in a bonafied belief that he would get justice through the aforesaid litigations.
On going through the averments in the affidavit along with the petition we can see that cause of action of this complaint arosed on 06-03-2005, the date on which the alleged accident was occurred. And further it was occurred on 24-06-2014, the date on which the Hon’ble Additional Motor Claim Tribunal has passed an Order in OPMV 401/06. It is very pertinent to note that complainant had took the matter upto Hon’ble Supreme Court of India and had failed to prove his case. Though the Section 69(2) of Consumer Protection Act 2019, provides an ample power to this Commission to condone the delay caused in filing complaint but the petitioner / complainant had to state sufficient reasons for causing such delay.
The Hon’ble Supreme Court in SLP (Civil) Diary No.(S) 13348 of 2019. The State of Bihar and Others Vs. Deo Kumar Singh and others observed as follows.
“We are of the view that a clear signal has to sent to the government authorities that they cannot approach the Court as and when they please on account of gross incompetence of their officers and that too without taking any action against the concerned officers. No details of this delay of 728 days have been given as if there is an inherent ride to see condonation of delay by state government. The law of limitation apparently is not applied to state government according to his conduct.
The Hon’ble Supreme court in case Oriental Arora Chemical Industrial Limited Vs. Gujarath Industrial Development Corporation (2010) 5 SCC 459 observed as follows.
“We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time”.
The Hon’ble Supreme Court in case “Lanka Venkiteswaralu (D) LR Vs. State of AP and others 2011 (2) RCR Civil 880 (SC) observed as follows.
Once a valuable ride has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient case and its own conduct, it will be unreasonable to take away that trying on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or in action of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to redrive the other party of a valuable ride that has accrued to it in law as a result of his acting vigilantly.
Here the case in hand it is pertinent to note that though the notice issued from the Hon’ble MACT, Pathanamthitta had received by the complainant, he did not care to appear before the Motor claim Accident Tribunel or to conduct his case. Without exercising his right and using his best opportunity to prove his case he had not taken any action for the same. Moreover he took the matter upto the Hon’ble Supreme Court of India and he miserably failed to explain any act and negligence before the Hon’ble apex courts. On a mere reading of the affidavit filed along with this petition we can see that the complainant has no satisfactory explanation of the reason for negligent inaction for contesting case before the appropriate judicial courts. Considering the facts and nature of this petition we are of the opinion that the complainant tried to deprive the right of the opposite party which has accrued to them. As a result of their vigilant action in the case before the Hon’ble Additional MACT, Pathanamthitta.
On a thoughtful evaluation of the argument in the light of above discussed decision of the Hon’ble apex courts we are of the opinion that the petitioner / complainant has miserably failed to give sufficient explanation for the delay of 2923 days caused in filing this complaint. Hence this petition is dismissed.
Pronounced in the Open Commission on this the 12th day of April, 2021
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
By Order
Senior Superintendent
