Sri Subhra Sankar Bhatta, Presiding Member

The present appeal under Section 41 of the Consumer Protection Act, 2019 has been preferred at the behest of the Appellant Mr. Kaushik Kar who was the Complainant before the District Consumer Disputes Redressal Commission, Unit-II, Kolkata (herein after referred to as the “District Commission” for convenience) challenging the impugned judgment and order dated 1^st February, 2022 passed by the District Commission in connection with Consumer Complaint case No. CC/187/2021 wherein and whereby Ld. District Commission was pleased to dismiss the Miscellaneous Application being No. 320/2021 on contest and also dismissed the consumer complaint case CC/187/2021 being barred by the law of limitation.

Appellant Mr. Kaushik Kar as Complainant instituted the petition of complaint under the Consumer Protection Act, 2019 against the OPs/Respondents herein viz. 1) Authorized Signatory, Commercial Finance Division, Indusind Bank Limited and 2) Branch Manager, Cholamandalam M/s. General Insurance alleging deficiency of service and unfair trade practice and prayed for relief and redressal as sought for in the prayer portion of the complaint petition.  During the pendency of that complaint case the Complainant filed a Miscellaneous Application under Section 69 of the Consumer Protection Act, 2019 being M.A. No. 320 of 2021 before the Ld. District Commission praying for condonation of delay of 233 days.

In the said Miscellaneous Application the Complainant admitted the fact of 233 days’ delay in filing the petition of complaint before the District Commission.  The Complainant specifically contended that he could not institute the petition of complaint within the stipulated period due to Pandemic/Covid-19.  The Complainant further contended that the Hon`ble Apex Court of India was pleased to take cognizance for extension of limitation Suo Motu due to outbreak of Pandemic/Covid-19 in March, 2020 and passed the order of relaxation of the limitation period in all proceedings before the Courts and Tribunals.  The Complainants also contended that he has a good case to face the trial and if the present M.A. is not allowed, in that event the Complainant will suffer irreparable loss and injury.  On all such grounds the Complainant prayed for condonation of delay of 233 days in filing the petition of complaint.

On 1^st February, 2022 vide order no. 12 Ld. District Commission was pleased to dismiss the M.A. being No. 320/2021 on contest.  Pursuant to dismissal of the M.A. District Commission was further pleased to dismiss the original complaint petition being CC No. 187/2021.

Being aggrieved by and dissatisfied with the above judgment and order of the District Commission the Complainant as Appellant has preferred the present appeal on various grounds as highlighted and canvassed in the body of the memorandum of appeal.  It has been contended that the impugned order of the District Commission is bad in law having no application of judicial mind; that the Ld. District Commission failed to appreciate that the cause of action is bundle of facts and not just one fact and as such committed gross error in law over the issue of cause of action; that the District Commission failed to take notice that the cause of action has been morefully described in Para-21 of the complaint petition; that the Ld. Commission below failed to consider the order of the Hon`ble Apex Court over the issue of taking cognizance of extension of limitation; that the Ld. District Commission ought to have allowed the M.A. pursuant to the observation of the Hon`ble Apex Court passed in M.A. No. 665 of 2021 in SMW( C ) No. 3 of 2020.  According to the Appellant Ld. District Commission passed the impugned order in the M.A. in gross violation of the specific directions of the Hon`ble Apex Court.  On all such grounds the Appellant has prayed for allowing the present appeal after setting aside the impugned judgment and order passed by the District Commission on 1^st February, 2022 in complaint case No. 187/2021.

POINTS FOR DETERMINATION:

i) Whether the Ld. District Commission was justified in passing the impugned judgment and order.

ii) Whether the Ld. Commission below has committed gross irregularity and illegality in passing the impugned judgment and order

iii) Whether the Ld. District Commission was correct in the approach in arriving at the final conclusion

iv) Whether the impugned judgment and order deserve interference of this Appellate Commission

v) Whether the impugned judgment and order can be sustained in the eye of law

DECISIONS WITH REASONS:

All the above points are taken up together for the brevity of discussion and in order to avoid unnecessary repetitions.  Moreover, all the above points are interlinked and interrelated with each other.

We have perused the entire materials available in the case record along with the brief notes of arguments submitted on behalf of the parties to the appeal.

We have also perused the impugned judgment and order of the Ld. District Commission passed on 1^st February, 2022 in M.A. No. 320/2021 arising out of complaint case no. CC/187/2021.

It is crystal clear from the materials available on record that the present Appellant as Complainant filed one Miscellaneous Application and prayed for condonation of delay of 233 days in instituting the petition of complaint.  The Petitioner/Complainant prayed for condonation of delay basing upon the precarious condition of the people due to outbreak of Pandemic/Covid-19.  The Complainant also raised that he could not file the petition of complaint within the stipulated period due to unprecedented Pandemic situation.  After considering the submissions of the respective Ld. Counsels for the parties to the complaint case Ld. District Commission was pleased to dismiss the Miscellaneous Application and the complaint petition on the very ground that the Complainant could not establish satisfactory reason for such delay in filing the petition of complaint. Undoubtedly, the Complainant (Present Appellant) filed the petition of complaint on 24.02.2021 i.e. after a long lapse of three years two months and eighteen days from the date of repudiation of his claim.  In Paragraph No. 21 the Complainant unequivocally admitted that the cause of action for filing the present complaint petition arose on December 06, 2017 while the OP No. 2 rejected the claim of the Complainant.  Thus, it can be safely concluded that the cause of action arose on 06.12.2017.  The limitation period expires on 06.12.2019 i.e. within 2(two) years from 06.12.2017(date of repudiation).  It is an admitted position that the Complainant had the ample opportunity to present the petition of complaint within the stipulated period of limitation i.e. within 06.12.2019 but he kept himself silent over the matter.  Mere writing a letter to the concerned Bank and not to the Insurance Company does not suffice for extending the period of cause of action and cannot be considered as continuing cause of action as averred in the petition of complaint.  The Complainant stated in Para No. 21 that further cause of action arose on 3^rd August, 2018 when the OP No. 1 issued pre-sell notice in respect of the vehicle in question.  Such averment of the Complainant cannot be and should not be considered as continuing cause of action.  Neither writing a letter to the Bank nor the pre-sell notice issued from the end of the OP No. 1 cannot be taken into account as continuing cause of action.  The performance of the Complainant goes to indicate that despite availing sufficient time he did not file the complaint case within the stipulated period before the concerned Commission.  It is to be borne in mind that the Lockdown Period due to Pandemic/Covid-19 was started on 24.03.2020 and the extension of limitation was extended from time to time due to such outbreak of Pandemic/Covid-19 in March, 2020 pursuant to the direction of the Hon`ble Apex Court and the period from 15.03.2020 till 14.03.2021 was firstly excluded by the order of the Hon`ble Apex Courtand thereafter from time to time. The Complainant got sufficient opportunity and time before 15.03.2020 for filing the petition of complaint but he failed to do so. Complainant filed the petition of complaint at a belated stage i.e. on 24.02.2021 (after the expiry of the stipulated period of limitation).  The cause of action for the present case arose on 06.12.2017 i.e. the very date of repudiation of the claim by the insurance company.  Undoubtedly, the stipulated period of limitation expires on 06.12.2019 (two years from the date of repudiation).  The Complainant did not file the complaint case within the stipulated period of limitation.  Undoubtedly, at that relevant period Pandemic/Covid-19 was not prevailing in the society and as such Complainant is not entitled to get any benefit of Pandemic/Covid-19.  Despite availing sufficient time before 24.03.2020 (starting date of lock down) the Complainant failed to institute the petition of complaint.  The facts and circumstances of the case clearly indicate  that the Complainant is not at all entitled to get the benefit of the judgment regarding extension of the period of limitation passed by the Hon`ble Apex Court.  The complaint petition ought to have filed in between 06.12.2017 to 06.12.2019.  No cogent, convincing or satisfactory explanation has come from the end of the Complainant for such inordinate delay of 233 days in presenting the petition of complaint. 

Considering the facts and attending circumstances of the present case and having considered the submissions of the respective Ld. Counsels for the respective parties to the appeal and with our profound respect to the cited decisions of the Hon`ble Apex Court passed in Miscellaneous Application No. 665 of 2021, SMW ( C ) No. 3 of 2020 we have come to an irresistible conclusion that the Complainant has hopelessly failed to establish such inordinate delay by cogent and satisfactory explanation.  In our considered view Ld. District Commission was absolutely justified in reaching the ultimate conclusion.  We do not find any irregularity, illegality or impropriety in the judgment and order of the Ld. Commission below.  Thus, being the position we do not also find any reason to interfere with the findings of the Ld. Commission below.  The argument as advanced from the end of the Appellant/Complainant has no legs to stand upon.  Hence, we have no other option left but to dismiss the present appeal.

All the points are answered and decided against the Appellant.

Resultantly, the present appeal fails.

The judgment and order dated 1^st February, 2022 passed by the Ld. District Commission deserve confirmation.

It is, therefore,

O R D E R E D

That the present First Appeal being no. A/45/2022 be and the same is dismissed on contest against the Respondents but considering the circumstances without any order as to costs.

The judgment and order dated 1^st February, 2022 vide order No. 12 passed by the Ld. District Commission in connection with consumer complaint case no. CC/187/2021 are hereby affirmed.

Let a copy of this judgment and order be transmitted to the Ld. Commission below forthwith for information and taking necessary action.

Let free copy of this judgment and order be handed over to the Respondents immediately maintaining all the required formalities.

Thus, the appeal stands disposed of.

Note accordingly.