Haryana

StateCommission

A/1204/2018

NEW INDIA ASSURANCE CO. - Complainant(s)

Versus

RAJESH KUMAR - Opp.Party(s)

VINOD GUPTA

28 Feb 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                                               

                                                         First Appeal No.1204 of 2018

                                                Date of Institution: 22.10.2018

                                                        Date of Final Hearing: 28.02.2023

Date of pronouncement: 28.03.2023

 

The New India Assurance Company LimitedSCO No. 36-37, Sector 17-A, Chandigarh, through its duly authorized officer.

…..Appellant

Versus

Rajesh Kumar S/o Sh.Banwarilal R/o H.No. 113/1, Village Naugawan, Tehsil and Distt. Jhajjar (Haryana).

…..Respondent

CORAM:    S.P.Sood, Judicial  Member

                   Suresh Chander Kaushik, Member

                  

Present:-    Mr.Vinod Gupta, Advocate for theappellant.

                   Mr.R.K.Agnihotri, Advocate for the respondent.

 

                                                ORDER

 

S P SOOD, JUDICIAL MEMBER:

          The present appeal No.1204 of 2018 has been filed against the order dated 09.04.2018 of the District Consumer Disputes Redressal Forum, Jhajjar (In short  now “District Commission”) in complaint case No.4 of 2018, which was allowed.

2.      There is a delay of 166 days in filing the appeal.  Appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  166 days wherein,  it is alleged that the appellant did not receive any copy of the order rather appellant came to know about the decision of the case only after receiving summon in execution and then got a copy of the order and file was sent to R.O. Chandigarh for filing the appeal and in this process, the delay occurred but the same was not intentional and wilful but it was totally bonafide. Thus, delay of 166 days in filing of the present appeal may please be condoned.

3.         Arguments Heard. File perused.

4.         Learned counsel for the appellant vehemently argued that as per facts mentioned above, it is clear that delay in filing appeal was not intentional.    Learned counsel for the appellant further argued that appellant did not receive copy of the order. Infact appellant came to know about decision of the case on receiving of the summon in the execution and then got a copy of the order and file was sent to R.O. Chandigarh for filing the appeal and in this process, the delay entailed but the same was not intentional and wilful but it was totally bonafide. Thus the delay be condoned in the interest of justice.

5.         This argument was not available to appellant.  A period of 30 days has been provided as per the old Act 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 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.

6.                         The inordinate delay of 166 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.  RewaCoalfields  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.”

         

7.      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 166 days in filing of the appeal. Hence application filed for condonation of delay  in appeal No.1204 of 2018 is dismissed. 

8.      The brief facts of the case are that the complainant was the owner of vehicle make Hyundai Motor India Limited Model I20 Sportz CRDI bearing registration No. HR-14N-6231.  Its
Temporary regd. No. was  99YN (Temp.)-2843. The complainant  purchased the said vehicle from authorized dealer of Hyundai. “ RajaMotors Sirsa Road Fatehabad 125050 (Haryana)” for a sale consideration of Rs. 7,40,815/- on  18.01.2017. The complainant got insured his vehicle on the same day from the opposite party (OP).  He purchased the said vehicle for his personal use.  On 12.05.2017, the vehicle of the complainant was snatched by some unknown persons for which  FIR No.0205 dated 12.05.2017 was also registered. After this development, he informed about the loss of his vehicle owing to snatching to the insurance company and submitted relevant documents, however, the police managed to recover the vehicle on 04.08.2017  butin damaged condition. The complainant got released his vehicle on superdarifrom the court and spent Rs.72,120/- for repair on his vehicle. After complainant got it repaired on 05.09.2017 lodged the claim asking the insurance company to pay his expenditure but  OP refused to pay the same. Thus there being deficiency in service on the part of the OP, hence this complaint.

9.      However OP did not appear and was proceeded against ex parte.

10.    After accepting contentions of complainant which were unrebutted, the learned District Commission, Jhajjarallowed the complaint vide order dated 09.04.2018, whereby the OP was directed to pay  Rs.72120/- to the complainant alongwith an interest @ 9% p.a. from the date of bill i.e. 31.08.2017 (as per Ex.P-12) till realization of final payment to the complainant. The complainant was also held entitled for a sum of Rs.5500/- from the respondent company on account of litigation expenses for the present unwanted and unwarranted litigation due to the deficiency in service on the part of the respondent. The complaint was disposed of accordingly.

11.    Feeling aggrieved therefrom, opposite party-appellant has preferred thisappeal.

12.    This argument have been advanced by Sh.VinodGupta, learned counsel for the appellant as well as Mr.R.K.Agnihotri, learned counsel for the respondent.With their kind assistance entire records including that of the District Commission led on behalf of  the parties has also been properly perused and examined.

13.    It is not disputed that the vehicle in question was purchased on 18.01.2017 and its temporary RC was valid from 18.01.2017 to 17.02.2017. It is not disputed that during the subsistence of the insurance policy, the vehicle was snatched by unknown person on 12.05.2017. It is also not disputed that the after snatching of the vehicle FIR was lodged on the same day by the driver of the complainant.  It is also not disputed that the police has recovered the vehicle and complainant got released his vehicle on superdari.   However the vehicle received by the complainant was in damaged condition. The plea of the appellant was that insurance company was not liable to pay any compensation because the temporary number of the car had already expired and the permanent number has not even applied in one month, therefore the insurance company was not liable to pay any compensation in view of the law laid down by Hon’ble Supreme Court in New India Assurance Vs. Narender Singh. 2014(3) CPC 1. Since the vehicle was duly insured with the insurance company, therefore the complainant was held entitled for the compensation as allowed by the District Commission.   It is admitted fact that as per FIR, before snatching the vehicle, the unknown person had hit the car.  The complainant  was entitled for the repair amount as prayed for.

14.    It is a matter of common experience, insurance companies often repudiate claims on grounds of non-disclosure of material information by the consumer. However they conveniently forget that there is an even greater statutory obligation cast on them to give full information to the consumer about the products they sell.

The responsibilities of the insurer towards full disclosure is even more because (a) the Insurance Regulatory and Development Authority’s (IRDA) Regulation on the protection of Policyholders’ Interests’ specifically mandates this and (b) the contracts of insurance, which are ‘Adhesion Contracts’ or ‘Standard Form Contracts’ are drawn up unilaterally by the dominant party-the insurer. The consumer, being the weaker party has no bargaining power, nor knowledge of the terms of the contract. So, the apex court has often said that these contracts, therefore, demand a very high degree of fairness, good faith and disclousure on the part of the insurer.

          Here are two cases where the Supreme Court has reminded insurers of their obligation in this regard and warned them against violations. The two cases also show-case the kind of unfair practices indulged in by insurers.

          In Texco Marketing Pvt. Ltd. Vs TATA AIG General Insurance (CA No. 8249 of 2022, date of judgment: November, 9, 2022), for example the insurance company insured after due inspection, a shop loacated in a basement under the Standard Fire and Special Perils Policy, despite the fact that the policy specifically excluded basements. Subsequently, following a fire, when the policyholder made a claim, the insurer repudiated it on the basis of the exclusion clause!

          While ruling in favour of the consumer, the apex court observed that first and foremost, the insurer did not bring the exclusion clause to the notice of the consumer. And then, despite having knowledge of the exclusion clause, it insured the basement and received the premium benefits. After this, repudiating the policyholder’s claim on the basis of the exclusion clause was certainly an unfair trade practice. “This view is fortified by the finding that the exclusion clause is an unfair term, going against the very object of the contract, making it otherwise un-executable from its inception,” the apex court said.

          Some of the observations of the court in this case would go a long way in upholding the rights of the policyholders. For example, the court made it clear that an exclusion clause, if not brought to the notice of the consumer by the insurer or agent, would not be binding on the consumer. Similarly, an unfair term in an insurance contact would be un-executable. The Supreme Court also reminded insurers that an exclusion clause “is not a leverage or safeguard for the insurer, but is meant to be pressed into service on a contingency, being a contract of speculation”.

          Said the court: “Before we part with this case, we would like to extend a word of caution to all the insurance companies on the mandatory compliance of Clause (3) and (4) of IRDA Regulation, 2022. Any non-compliance on the part of the insurance companies would take away their right to plead repudiation of contract by placing reliance upon any of the terms and conditions included thereunder”.

15.      The complainant has not violated the terms and conditions of the insurance policy.Learned District Commission has rightly allowed the claim of the complainant.

16.    Resultantly, the contentions raised on behalf of the present appellant stands rejected as rendered no assistance and found to be untenable and the order passed by the learned District Commission does not suffer from any illegality or perversity and is well reasoned and accordingly stands maintained for all intents and purposes.Hence, appeal stands dismissed on the ground of delay as well as on merits.

17.    The statutory amount of Rs.25000/- deposited at the time of filing the appeal be refunded to the complainant-respondent-Rajesh Kumaragainst proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

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

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

20.              File be consigned to record room.

 

 

28thMarch, 2023     Suresh Chander Kaushik                        S. P. Sood                                                    Member                                                         Judicial Member                            

 

S.K

(Pvt. Secy.)