Haryana

StateCommission

A/1314/2018

RAJIV KUMAR - Complainant(s)

Versus

NEW INDIA INSURANCE LTD. - Opp.Party(s)

SIDDHARTH GULATI

20 Dec 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                      First Appeal No.1314 of 2018

                                                 Date of Institution: 04.12.2018

                                                          Date of final hearing: 20.12.2022

Date of pronouncement: 23.01.2023

 

Rajiv Kumar son of Krishan Lal proprietor Krishan Lal & Sons, Janta Market, Kaithal r/o House No. 326, Sector 19(1), HUDA, Kaithal.

…..Appellant

Versus

New India Assurance Ltd. Kaithal through its Branch Manager.

…..Respondent

CORAM:    S.P. Sood, Judicial  Member

                    Suresh Chander Kaushik, Member

 

Present:-    Mr.Anshul Jindal, Advocate for the appellant.

                   Mr. Pardeep Kumar, Advocate for the respondent.

 

                                                 ORDER

S P SOOD, JUDICIAL MEMBER:

          There is a delay of 742 days in filing this appeal.  Appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  742 days wherein,  alleging that though learned District Consumer Forum passed an order on 14.10.2016 but appellant come to know about dismissal of complaint only on 12.11.2018. Thereafter, he applied for certified copy of impugned order and then filed the appeal. This is how the delay entailed was neither deliberate nor intentional but purely for the reasons stated therein.  Thus, delay of 742 days in filing of the present appeal be condoned.

2.         Arguments Heard. File perused.

3.         Learned counsel for the appellant vehemently argued that as per facts disclosed above, it is abundantly clear that delay in filing appeal was not intentional at all.    Further argued that after receiving the copy of the order on 12.11.2018, the appellant filed appeal before this Commission immediately. Due to the above said reasons, the appeal could not be filed earlier, so the delay may be condoned. 

4.         This argument is not available.  A period of 30 days as per the old Act and 45 days as per the new Act has been provided for filing an appeal against the order of the District Commission. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days as per the old Act and 45 days as per the new Act if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

5.                         The inordinate delay of 742 days cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

          The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days delay.”

          The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

               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.”

      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.”

         

6.      Taking into consideration the pleas raised by appellant in the application for condonation of delay and settled principle of law, this Commission does not find it a fit case to condone delay of 742 days in filing of the appeal. Hence application filed for condonation of delay  in appeal No.1314 of 2018 is dismissed.  

7.      The present appeal No.1314 of 2018 has been filed against the order dated 14.10.2016 of the District Consumer Disputes Redressal Forum, Kaithal (In short Now “District Commission”) in complaint case No.191 of 2015, which was dismissed.

8.       The brief facts of the case are that complainant has been running the shop under the name of M/s Krishan Lal & Sons and doing the business of whole sale/retail of pulses, tea, sugar, vanaspati oil and other related articles etc. The said firm got insured the stock and godown with OP vide policy No. 35360446100400000207 w.e.f. 11.10.2010 to 10.10.2011 for a sum of Rs.12 lacs. In the night of 15.01.2011 theft occurred and he suffered total loss of Rs.4,37,850/-. FIR No. 20 dated 16.01.2011 under Sections 380, 457, IPC was registered in Police Station City Kaithal and information of theft was also given to OP. Complainant lodged claim with all documents but OP did not settle the claim of the complainant. Thus, there being deficiency in service on the part of the O.P, hence this complaint.

9.      In its written version, OP raised preliminary objections with regard to maintainability, cause of action, locus standi, jurisdiction and non-cooperation. On merits, it was submitted that though insured claimed amount equivalent to cost of 194 bags of pulses weighting 50 kgs each worth Rs.4,37,850/- being stolen from his Godown but in the body of FIR lodged with police in columns No. 8 & 9 where details of the items stolen and value of the property were left blank. Even in the untraced report furnished by insured the value of stolen property has not been mentioned. However, value of the stolen property as per police record was only of Rs.30,000/- which was reported by M/s Grover Associates after verifying from police record under the seal and signature of ASI Naresh Kumar on 06.03.2012. Even in the information sought by investigator under RTI Act police authority vide letter No. 682 dated 24.04.2012 informed that the value of the lost property is Rs.30,000/-. Insurance Company asked for clarification from the complainant vide letter dated 16.04.2012 but he failed to give clarification and instead of furnishing any details so as to explain this confusion, appellant vide letter dated 23.04.2012 replied that he cannot comment anything on the value of the property in police record. So for all these reasons the claim of the complainant was rightly repudiated on 16.05.2012 by OP. Thus, there being no deficiency in service on the part of the OP.

10.    After hearing both the parties, the learned District Commission, Kaithal has dismissed the complaint vide order dated 14.10.2016 as time barred.

11.    Feeling aggrieved therefrom, complainant-appellant has preferred this appeal.

12.    This arguments have been advanced by Sh.Anshul Jindal, the learned counsel for the appellant as well as Sh. Pardeep Kumar, the learned counsel for respondent. With their kind assistance entire record of the appeal as well as record of the District Commission including whatever evidence has been led on behalf of  both the parties has also been properly perused and examined.

13.    It is not disputed that  complainant  has been running the shop of whole sale grocery items etc under the name and style of M/s Krishan lal & Sons. It is not disputed that the stock of the complainant’s firm was insured with the OP.  It is also not disputed that the insurance policy was valid from 11.10.2010 to 10.10.2011. It is also not disputed that during the subsistence of policy, a theft occurred in the shop of the complainant. It is also not disputed that FIR was also registered in the PS City Kaithal. 

14.      The complainant has filed the complaint  before the District Commission beyond two years from the date of cause of action,  the appellant has filed the this appeal after two years. The claim of the complainant was repudiated vide letter dated 04.07.2012, whereas the complaint before the learned District commission was been filed by the complainant on 25.08.2015 i.e. after the period of three years.  As per the old Act, Section 24A reveals that  the complaint shall be filed within two years from the date on which the cause of action has arisen. The cause of action arise on 04.07.2012, when the claim of the complainant was repudiated. Learned District Commission has rightly dismissed the complaint of the complainant. There being a huge difference between the alleged loss suffered by complainant before local police and before the insurance people. The learned District Commission had committed no illegality while passing the order dated 14.10.2016.  The appeal is also devoid of merits and stands dismissed.

15.    Applications pending, if any stand disposed of in terms of the aforesaid judgment.

16.    A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

17.    File be consigned to record room.

 

23^rd January, 2023              Suresh Chander Kaushik            S. P. Sood                                                                Member                                             Judicial Member    

S.K

(Pvt. Secy.)