Tripura

StateCommission

A/33/2018

National Insurance Company Ltd. - Complainant(s)

Versus

Care & Cure Polyclinic & Research Center - Opp.Party(s)

Mr. Sandip Dutta Chowdhuri

16 Nov 2018

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.33.2018

 

 

1. National Insurance Company Ltd.,

Represented by the Senior Divisional Manager,

Agartala Division, 42, Akhaura Road,

P.O. Agartala, P.S. Agartala,

District - West Tripura.

  … … … … Appellant/Opposite Party.

 

Vs

 

1. Care & Cure Poly Clinic & Research Centre,

Palace Compound, Agartala, P.O. Agartala,

P.S. West Agartala, District - West Tripura.

Represented by its proprietor, Smt. Madhabi Sanyal.

 

… … … … Respondent/Complainant.

 

 

Present

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

 

Mr. Narayan Ch. Sharma,

Member,

State Commission

 

Dr. Chhanda Bhattacharyya,

Member,

State Commission

 

 

 

 

 

 

 

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

For the Respondent:                                           Mr. Sankar Bhattacharjee, Adv. &

Mr. Bidyut Datta, Adv.

Date of Hearing:                                                 12.11.2018.

Date of Delivery of Order:                                16.11.2018.

 

 

O R D E R

 

U.B. Saha, J,

The instant appeal is filed by the appellant, National Insurance Company Ltd., represented by the Senior Divisional Manager, Agartala Division against the judgment dated 10.04.2018 passed by the learned District Consumers Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.113 of 2017 along with an application for condoning the delay of 127 days in preferring the appeal against the aforesaid judgment.     

2. Today is fixed for order on condonation petition.
3. Heard Mr. Sandip Datta Choudhuri, Ld. Counsel appearing for the appellant, National Insurance Company Ltd. (hereinafter referred to as opposite party/Insurance Company) as well as Mr. Sankar Bhattacharjee, Ld. Counsel assisted by Mr. Bidyut Datta, Ld. Counsel appearing on behalf of the respondent, Care & Cure Poly Clinic & Research Centre (hereinafter referred to as complainant/Nursing Home).  
4. Facts needed to be discussed are as follows:-
5. Smt. Madhabi Sanyal, Proprietor of Care and Cure Polyclinic and Research Centre, Agartala filed an application under Section 12 of the Consumer Protection Act, 1986 before the learned District Forum alleging that she being the owner of the Nursing Home had to pay compensation Rs.3 lacs for medical negligence along with Rs.5,000/- as cost. She preferred an appeal, but the compensation enhanced to Rs.5 lacs from Rs.3,05,000/- with cost of Rs.10,000/-. Aggrieved by the judgment of the State Commission, the complainant preferred a Revision Petition before the National Commission and the said Revision Petition was dismissed upholding the judgment of the State Commission. Accordingly, she paid the amount of compensation as ordered by the Commission, but the nursing home was insured to protect her business interest as she purchased the insurance policy covering Errors and Omission for the amount of Rs.10 lacs from the appellant-Insurance Company. So after making payment as per direction of the State Commission, complainant being the owner of the nursing home and an insurance policy holder claimed the amount from the opposite party-Insurance Company. She also sent a letter to the Grievance Redressal Officer in the year 2016. Finally, on 22.02.2017, opposite party no.2, Senior Divisional Manager of the National Insurance Company, Agartala Division rejected the claim petition of the complainant. Dissatisfied with the action of the opposite party-Insurance Company and for deficiency of service on the part of the opposite parties, she filed an application before the learned District Forum for the amount of Rs.5,05,000/- as paid by her and also Rs.1 lac as compensation and cost of litigation.
6. Opposite party-National Insurance Company appeared and filed their written statement denying the claim of the complainant. It is stated that there is no cause of action for filing the petition. As per terms of the policy, no liability of the opposite party arises, if the claim arises out of deliberate, willful or intentional non-compliance of statutory provision. The complainant did not maintain any facility for pathological investigation and radiological investigation in the nursing home. Care & Cure Nursing Home has been doing business only to earn the money in the heart of Agartala city without any proper infrastructure. Such medical negligence occurred due to their fault only and it is not covered by the insurance. Therefore, the petition is liable to be dismissed.
7. On the basis of the contention raised by the parties, the learned District Forum framed the following points for deciding the case:-

1. Whether the petitioner violated the terms and conditions of the policy and not covered for getting the redress in connection with medical negligence?
2. Whether the petitioner is entitled to get reimbursement and also compensation as claimed for the deficiency of service of National Insurance Company?

8. Complainant produced the Insurance Policy, Certificate of Registration, letters, Demand Draft and Notice, Reply, copy of the judgment passed by the learned District Forum and State Commission. She also produced her Statement on Affidavit.
9. On the other hand, opposite party-Insurance Company produced letter, Professional Indemnity/Errors & Omission, Compliance Certificate, Judgment dated 22.11.2014. Opposite party also produced the Statement on Affidavit of one witness, Biswa Jyoti Bora, Administrative Officer of National Insurance Company Ltd.
10.  On the basis of evidence adduced by the parties, the learned District Forum passed the impugned judgment directing the opposite party, National Insurance Company Ltd. to reimburse the cost amounting to Rs.5,35,000/-  and also pay Rs.15,000/-  as compensation and Rs.5,000/- as cost of litigation. Payment is to be made within two months, if not paid; it will carry interest @ 9% per annum. 
11. Being aggrieved by and dissatisfied with the impugned judgment, the appellant-opposite party, Insurance Company preferred the instant appeal along with a condonation petition as stated (supra).  
12. Mr. Datta Choudhuri, Ld. Counsel while urging for condoning the delay as sought for relied upon paragraph-2 and 3 of the condonation petition which are as follows:-

2.    That, the Judgment was passed on 10.04.2018 and the counsel after collection of the judgment submitted the copy of the Judgment along with opinion to the petitioner on 16.04.2018 and then the Divisional office sent the file to regional office and thereafter by several Mails Regional office asked for so many relevant documents and thereafter dispatched the relevant file to the Divisional Office, Agartala with an opinion to send the complete file so as to decide on the point of appeal and accordingly the Divisional office again sent the complete file along with format to the regional office by a messenger on 07.06.2018.

3.    That, the regional office thereafter on perusal of the impugned judgment and earlier judgments of the Ld. District Forum and the Hon’ble State Commission arising out of the same incident sent the file to Agartala Divisional office with an opinion to prefer an appeal on 19.07.2018 and thereafter the Divisional office sent the complete file to their counsel on 24.07.2018 and the Ld. counsel on perusal of the documents as available in the file asked the Divisional office to send the judgment of the Hon’ble State Commissioner and the Ld. District Forum so passed earlier arising out of the same incident and accordingly the same was sent to the counsel on 24.08.2018 and the Ld. Counsel thereafter prepared the memo of appeal and other miscellaneous petitions and for that there was a reasonable delay in preferring the appeal which was totally unintentional and beyond the control of the petitioner as the petitioner was prevented from preferring the appeal by sufficient cause and for that there was a delay of 127 days in preferring the appeal. The petitioner has a very good case to succeed and there is no remedy unless the delay was condoned the petitioner will suffer irreparable loss.

He has also submitted that though day to day explanation is not there, but some sort of reasonable explanation is there. According to him, the delay took place due to following the official procedure as well as the instructions of the lawyer of the appellant-Insurance Company and the reasons for delay being not intentional/motive it would be proper to condone the delay in the interest of justice.

13. Per contra, Mr. Bhattacharjee, Ld. Counsel while opposing the prayer for condonation of delay has submitted that the cause for delay in preferring the appeal as explained by the opposite party is not a genuine one, rather the opposite party-Insurance Company was totally careless in preferring appeal. He has further submitted that even if for the argument sake, it is admitted that the Ld. Counsel after collection of the judgment submitted the copy of the judgment along with his opinion to the opposite party-Insurance Company on 16.04.2018, but when the Divisional office sent the file to the Regional office and when the Regional office asked for so many relevant documents, those dates are not mentioned in the petition and not only that, no explanation has been offered for the period between 16.04.2018 to 07.06.2018 and 07.06.2018 to 19.07.2018. He has again submitted that admittedly, the Divisional office sent the complete file to their counsel on 24.07.2018, but the appeal preferred along with condonation petition on 15.09.2018 and such delay has not been explained properly. In support of his contention, he has relied upon a judgment of this Commission in Life Insurance Corporation of India & another Vs Sri Kinkar Chowdhury [in Appeal Case No.A/59/2017] wherein this Commission after considering the case of Basawaraj & Anr. Vs The Spl. Land Acquisition Officer (Civil Appeal No.6974 of 2013) almost a similar application for condonation of delay rejected.
14. In Basawaraj & Anr. (supra) particularly, in Paragraph-9 of the judgment of the Hon’ble Apex Court discussed about the ‘sufficient cause’ which is as follows:-
    • 9. Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "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". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See: Manindra Land and Building Corporation Ltd. v. Bhootnath Banerjee & Ors., AIR 1964 SC 1336; Lala Matadin v. A. Narayanan, AIR 1970 SC 1953; Parimal v. Veena @ Bharti AIR 2011 SC 1150; and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai AIR 2012 SC 1629.)”
15. ‘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".
16. In Mahanagar Telephone Nigam Ltd. Vs. Ghanshyam Bansal, 2000 3 CPJ 315, the Hon’ble Delhi State Consumer Disputes Redressal Commission decided a condonaiton petition almost on similar grounds as mentioned by the complainant in the instant petition. From Paragraph-6 and 7 of the said Report it would be evident that the Hon’ble Delhi State Consumer Disputes Redressal Commission while deciding the condonation petition before it has also considered the decision of the Hon’ble Apex Court in the case of P.K. Ramchandran v. State of Kerala & Anr., AIR 1998 SC 2276. For ready reference Paragraph-6 and 7 of the  Mahanagar Telephone Nigam Ltd. (supra) are quoted hereunder:-

“6. The present appeal has been filed beyond the statutory period of 30 days prescribed in terms of Section 15 of the Act. The impugned order was passed on 27.7.1999 and duly received by the appellant on 29.7.1999, whereas, the present appeal has been filed only on 18.10.1999. The reasons assigned by the appellant for the delay in filing the present appeal are stated in the application for condonation of delay filed by the appellant. On perusing the same, it comes to fore, that the certified copy of the impugned order after being received on 29.7.1999, was put up before the AGM (Legal) after 20 days on 19.8.1999, who after over a week forwarded the same to AGM, Legal (HQ) on 27.8.1999. Thereafter, the said file with the impugned order was put up before the Joint General Manager (Legal) after a lapse of over a month on 4.10.1999. Further, though the file reached the concerned Counsel for the appellant on 8.10.1999, the appeal was actually filed on 18.10.1999, i.e. after a delay of further 10 days. The above narration itself reveals the total apathy and laches on the part of the officials of the appellant MTNL which in no way can be termed as ‘sufficient cause’ so as to call for our indulgence in condoning the delay of about 47 days.

7. We are fortified in our above view by a decision of the Hon’ble Supreme Court in the case P.K. Ramchandran v. State of Kerala & Anr., reported as AIR 1998 SC 2276. In the abovesaid decision the Hon’ble Supreme Court has held:

“The High Court does not appear to have examined the reply filed by the appellant as reference to the same is conspicuous by its absence from the order. We are not satisfied that in the facts and circumstances of this case, any explanation, much less a reasonable or satisfactory one, had been offered by the respondent-State for condonation of the inordinate delay of 565 days.

Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained.”

And the Hon’ble High Court of Jammu and Kashmir in the case of Jammu and Kashmir v. Smt. Ram Kali, reported as AIR 1987 Jammu and Kashmir 71, while considering the question whether the norms for condonation of delay should be different for Government or a Statutory Body as compared to an individual, has held :

“The delay in this case has accrued as the matter was referred to the Law Department and the office of the Executive Engineer, Chenani Hydel Project who is dealing with the case and the Government Office such as, Law Department, etc. were also at Srinagar and the matter being in rotation through proper channels took time.

In our opinion, the abovesaid explanation without mentioning the specific days and the reason for delay explaining each day of delay is no cause at all much less as sufficient cause for condonation of delay in filing the revision or an appeal within the meaning of Section 5 of the Limitation Act. We are, therefore, in full agreement with the ratio of the authority of the Andhra Pradesh High Court, AIR 1973 AP 43 (supra), and hold that no exception is made for the Government in the matter of condonation of delay which is not satisfactorily explained in terms of the Act.”    

17. In Anshul Aggarwal Vs New Okhla Industrial Development Authority IV (2011) CPJ 63 (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, 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.”

18. We have considered the cause of delay as explained by the opposite party-Insurance Company in their condonation petition as well as the objection filed by the respondent-complainant and also the submission of the Ld. Counsel appearing for the parties. There is no doubt that 'sufficient cause' though deserves to receive a liberal approach, but at the same time a court of law has to maintain a just and equitable balance between the right secured by the complainant 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. What should be the ‘sufficient cause’ has already been decided by the Hon’ble Apex Court as stated in the decision of the Hon’ble Supreme Court referred above. Insurance Company is not a rustic litigant or ignorant about the period of limitation as the Insurance Company approached various Consumer Foras as well as this Commission in various matters.
19. The contention of the opposite party-Insurance Company 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. According to us, all these explanations as stated in Paragraph-2 and 3 of the condonation petition are only to eye wash the mind of this Commission.
20. We are of the considered opinion that the Insurance Company acted in such a manner for preferring appeal which is nothing but a mere negligence and not beyond their control, rather the appellant Insurance Company sat over the matter for 127 days only for following the official procedure. We have also considered the cases referred by the Insurance Company in their memo of appeal. None of decisions passed in those cases is helpful for the case of the appellant-Insurance Company.

In view of the above, we are of the opinion that the appellant-opposite parties failed to explain the delay properly in filing the connected appeal. The only reasons stated for causing delay is the departmental involvement, which cannot be a ground for condoning the delay.

In the result, the prayer for condonation as sought for is rejected and consequent thereto, the appeal also stands dismissed. No order as to costs.

 

           

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura