Uttarakhand

StateCommission

A/379/2019

M/s A.R. Thermosets P. Ltd. - Complainant(s)

Versus

Cholamandalam M. General Insurance Company Ltd. - Opp.Party(s)

Mr. J.P. Shah

27 Feb 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND

DEHRADUN

 

FIRST APPEAL NO. 379 / 2019

 

M/s A.R. Thermosets Pvt. Ltd.

having its Office at 18-A, Circular Road

Dehradun through its Authorised Representative

Sh. Aniruddh Tiwari aged about 28 years’ S/o Sh. Krishna Mohan Tiwari

R/o 538-16C/2, Shaidullapur, PAC Road

Kanpur, Uttar Pradesh

…… Appellant / Complainant

 

Versus

 

1.         Cholamandalam MS General Insurance Company Limited

            Harinivas Towers, 1^st Floor, 163, Thambu Chetty Street

            Parry’s Corner, Chennai – 600 001

 

2.         Branch / Agency Manager

            Cholamandalam MS General Insurance Company Limited

            1^st Floor, Shiva Complex

            Rajpur Road, Dehradun

…… Respondents / Opposite Parties

 

Sh. J.P. Shah, Learned Counsel for the Appellant

Sh. Suresh Gautam, Learned Counsel for Respondents

 

Coram: Hon’ble Mr. Justice D.S. Tripathi, President

               Mr. Udai Singh Tolia,                         Member-II

                                   

Dated: 27/02/2023

ORDER

(Per: Justice D.S. Tripathi, President):

 

This appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred against the impugned judgment and order dated 08.02.2019 passed by the District Consumer Disputes Redressal Commission, Dehradun (in short “The District Commission”) in consumer complaint No. 170 of 2012; M/s A.R. Thermosets Pvt. Ltd. Vs. Cholamandalam MS General Insurance Company Limited and another, by which the consumer complaint filed by the appellant / complainant has been dismissed.

 

2.       We have heard learned counsel for the parties on delay condonation application and perused the record. 

 

3.       According to office, the present appeal has been preferred by the appellant after a delay of 219 days’.

 

4.       The delay condonation application has been moved by the appellant for condoning the delay in filing the appeal.  The delay in filing the appeal has been explained by the appellant in the accompanying affidavit to the delay condonation application, wherein it has been averred that the appellant – M/s A.R. Thermosets Pvt. Ltd. is having office at Kanpur, Uttar Pradesh and is also having office at Chennai, Tamilnadu, Uttarakhand etc., as such, delay was caused in seeking permission to file the appeal from Authorised Members and Officials of the company.  The dealing Advocate had also not intimated the appellant about filing the appeal against the impugned judgment and order dated 08.02.2019.  The appeal was to be filed till 22.04.2019.  The delay for the period from 22.04.2019 to 11.10.2019 is bonafide.  There has not been intentional delay on the part of the appellant in filing the appeal.  The delay in filing the appeal is liable to be condoned. 

 

5.       Supplementary affidavit dated 20.04.2022 has also been filed on behalf of the appellant in support of delay condonation application.  In the supplementary affidavit, averment has been made to the effect that the head office of the appellant is situated at 104, Chandralok Complex, 26/72-D, Birhana Road, Kanpur, Uttar Pradesh.  For a short duration of time, Sh. Saurabh Gupta, Director of the appellant – company had taken property No. 18-A, Circular Road, Dehradun, on rent for company’s work, which has been closed since long time.  For contesting the consumer complaint before the District Commission, the appellant had engaged Sh. Yudhvir Singh Handa, Advocate, who had given intimation regarding impugned judgment and order dated 08.02.2019, to Sh. Saurabh Gupta via telephone on 18.08.2019 and informed that the consumer complaint filed by the company has been dismissed.  Upon receipt of intimation, application for obtaining certified copy of impugned judgment and order was moved on 21.08.2019, which was received on 22.08.2019.  After receipt of certified copy of impugned judgment and order, the period from 23.08.2019 to 14.10.2019 was consumed in taking decision by the Company’s Board at Kanpur office of the company as well as correspondence.  The appeal was filed before this Commission on 15.10.2019.  There is delay of 12 days’ in filing the appeal from the date of receipt of intimation regarding impugned judgment and order.  There is no intentional delay in filing the appeal.

 

6.       Learned counsel for the appellant, while placing reliance on the above averments made in the affidavit as well as supplementary affidavit filed in support of delay condonation application, submitted that in the interest of justice, the delay in filing the appeal should be condoned and the appeal should be heard and decided on its merit.

 

7.       From the averments made in the affidavit filed by the appellant in support of delay condonation application, it is apparent that the main grounds taken by the appellant for condonation of delay in filing the appeal is that of inaction / negligence on the part of the counsel, who did not immediately intimate the appellant about the impugned judgment and order passed by the District Commission as well as procedural delay in taking permission from higher authorities.

 

8.       It is now well settled that on account of negligence of the counsel, the party can not get any benefit and any laches on the part of the counsel in prosecuting the matter, is to be treated as negligence / laches on the part of the concerned party itself.  In the case of Swiss International Air Lines Ltd. Vs. Jitender Mohan Bhasin and others reported in III (2012) CPJ 583 (NC), there was delay of 244 days’ in filing the revision petition.  It was held by Hon’ble National Commission that the petitioner has failed to offer convincing rationale of reasons in support of his application.  It was also held that the name of earlier counsel was not mentioned in the application and it was the duty cast on the petitioner itself to find out what has happened to his case and whether appeal has been filed or not.  It was observed that there was gross negligence, deliberate inaction and lack of bonafides are imputable to the petitioner and the delay was not condoned.  In the case of Vinod Kumar Patel Vs. Sambit Kumar Das reported in III (2012) CPJ 703 (NC), it has been held by Hon’ble National Commission that it is well settled that qui facit per alium facit per se.  Negligence of a litigant’s agent is negligence of the litigant himself and is not sufficient cause for condoning delay.

 

9.       So far as time consumed in taking decision by the Board for filing appeal and correspondence etc. is concerned, the said delay is also not liable to be condoned.  Hon’ble National Commission in the case of Rajasthan Housing Board Vs. Vishnu Chand Sharma reported in IV (2012) CPJ 676 (NC), has held that the only explanation that file was moved from table to table to get permission to file petition is not sufficient and the delay of 169 days’ in filing the revision petition was not condoned.  Hon’ble National Commission in the case of HUDA Vs. Sunil Gupta reported in IV (2012) CPJ 360 (NC), has declined to condone the delay in filing the revision petition.  In the said case, the delay of 36 days’ in filing the revision petition was not condoned and it was held that the procedural delay is not the sufficient cause for condoning the delay.  It would not be out of place to mention here that the appellant has simply stated that the delay for the period from 22.04.2019 to 11.10.2019 is bonafide and liable to be condoned, without tendering any explanation for the said period.

 

10.     Hon’ble National Commission in the case of Jain International Sansthan Vs. Krish City, Bhiwadi and another reported in III (2016) CPJ 2 (NC), has declined to condone the delay of 168 days’ in filing the revision petition and has held that no lucid excuse is forthcoming from the petitioner to justify the delay in filing the revision petition.  It was held that the case is barred by time.  In the said decision, reliance was placed upon the decision of Hon’ble Apex Court given in Special Leave to Appeal (Civil) No. 37183 of 2013; Sanjay Sidgonda Patil Vs. Branch Manager, National Insurance Company Limited and another, decided on 17.12.2013 reported in 2013 (SLT Soft) 6, wherein Hon’ble Apex Court has confirmed the order of Hon’ble National Commission and refused to condone the delay of 13 days’.

 

11.     In addition to above, as rightly submitted by learned counsel for respondents, it can safely be said that the appellant has not come with clean hands and has nowhere stated as to what happened with the first certified copy of the impugned judgment and order.  The perusal of record shows that the certified copy of impugned judgment and order filed by the appellant along with memo of appeal, is second certified copy.

 

12.     For the reasons aforesaid, we are of the considered opinion that the appellant has not been able to satisfactorily explain an inordinate delay in filing the appeal and there is no plausible explanation put forward by the appellant for making a case in its favour, so as to allow the delay condonation application and condone the delay in filing the appeal.  Consequently, the application for condonation of delay warrants dismissal.

 

13.     Application for condonation of delay is dismissed.  As a consequence thereof, the appeal is dismissed as not maintainable, being barred by limitation.  No order as to costs.         

 

14.     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.

 

 

(U.S. TOLIA)                            (JUSTICE D.S. TRIPATHI)

               Member-II                                                President

 

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