Punjab

Ludhiana

CC/15/58

Rajinder Singh - Complainant(s)

Versus

Cholamandalam MS General Ins.Co.Ltd - Opp.Party(s)

M.S.Maan

05 Jan 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No.58 of 27.01.2015

Date of Decision            :   05.01.2016

 

Rajinder Singh @ Gopi, son of Sh.Upkar Singh, resident of H.No.693, Street No.16, Gobinasar Mohalla, Shimlapuri, Ludhiana.

……Applicant/Complainant

Versus

 

1.Cholamandalam Ms General Insurance Co.Ltd.,2^nd Floor, Dare House, 2 NSG Bose Road, Chennai-160022, through its Managing Director/Chairman/Authorized Signatory.

2.Cholamandalam Ms General Insurance Co.Ltd., Feroze Gandhi Market, Ludhiana, through its Branch Manager.

…Respondents/Opposite parties

 

APPLICATION U/S 24-A (2) OF THE CONSUMER PROTECTION ACT FOR CONDONATION OF DELAY

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT

SH.SAT PAUL GARG, MEMBER

 

COUNSEL FOR THE PARTIES:

For applicant/complainant                :           Sh.Mandeep Singh Mann, Advocate

For respondents/OPs                        :           Sh.Vyom Bansal, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Applicant/complainant Sh.Rajinder Singh @Gopi, filed application under Section 24-A (2) of the Consumer Protection Act, 1986(hereinafter referred to as ‘Act’) by claiming that earlier he engaged Sh.Gurjinder Singh Sahni, Advocate for filing the complaint in respect of the theft of his vehicle by engaging him in March, 2011. Entire documents were handed over to the said counsel, but said counsel even after obtaining signatures of the complainant on many documents, did not file the complaint. After 10-15 days, complainant asked his counsel regarding the proceeding of the complaint and he in turn disclosed as if the complaint is fixed for service of OPs. Complaint being truck driver mostly remained out of station in connection with his work. Complainant asked his counsel number of times regarding status of the alleged filed complaint and said counsel kept on informing the complainant that OPs have not been served in the complaint. The said counsel claimed that he will inform the complainant as and when, Ops appeared. Complainant confided in the said counsel, but in September 2014, when the complainant again approached Sh.Gurjinder Singh Sahni, Advocate for asking about the status of pending complaint, then the said counsel disclosed as if the complaint has been dismissed in default due to some technical reasons. The said counsel again obtained signatures of the complainant on some other documents on the pretext that he is going to file a fresh complaint. Thereafter, complainant approached his counsel on 20.11.2014 for asking him about the proceeding of the case and said counsel disclosed that he has filed the complaint, in which, notice has been ordered to be issued to the OPs. On 01.12.2014 in the evening, complainant received a telephonic call from the above said counsel for disclosing as if complaint is not admitted by the Forum and is kept pending on the point of limitation and consideration. Complainant was astonished to hear such words from his counsel and he immediately engaged another counsel namely Sh.Mandeep Singh Mann, Advocate on 02.12.2014. On 09.12.2014, complainant along with his counsel came to this Forum and counsel for the complainant informed that earlier counsel has not filed any complaint prior to 28.11.2014. Even Sh.Mandeep Singh Mann, Advocate withdrew the complaint filed on 9.12.2014 which was filed 28.11.2014 for some technical reasons with liberty to file the fresh complaint on the same cause of action and the said permission was granted by this Forum. Complainant has always acted as per the advice and information of his earlier counsel. The earlier counsel kept on giving false information to the complainant regarding pendency of the alleged complaint. Fraud and mischief has been committed with the complainant, qua which, he got knowledge on 9.12.2014. Complainant being the rustic villager does not know the implication and procedure of law. It is claimed that there are sufficient grounds made out for condoning the delay.

2.                In reply submitted by respondent/OP1, it is pleaded interalia as if application is not maintainable because this Forum has no jurisdiction to condone inordinate delay, particularly when the story has been concocted. Complainant has failed to reveal the exact nature of the documents allegedly handed over by him to his counsel and place of such handing over of such documents. Complainant has not attached any proof along with the present application in support of the averments of the complaint. Complainant has not uttered even a single word qua his absence for three years from 2011 to 2014, which shows the intentional negligence on the part of the complainant in not exercising his right within the limitation period. It is claimed that this complaint has been filed with ulterior motive. The order dated 09.12.2014 nowhere mentions the name of earlier counsel Sh.Gurjinder Singh Sahni, Advocate instead  the same show the presence of Sh.Mandeep S.Mann, Advocate. It is claimed that whole story has been concocted by the complainant for hiding his misdeeds and negligence. Condoning of delay in such circumstances will defeat the object of consumer law and as such, prayer made for dismissal of application as well as complaint.

3.                Arguments on application were heard. 

4.                 The present complaint was filed on 27.01.2015 along with application for condonation of delay, on allegations that the complainant got his Truck(Canter) bearing registration No.PB-10-CS-1292 insured with OPs for the period from 02.11.2010 to 01.11.2011, during which period, theft of the same took place by some unknown persons on 23.12.2010 and thereafter, FIR No.7 dated 10.01.2011 u/s 379 IPC was lodged with P.S.Division No.6, Ludhiana. Police filed Adampata (Untraceable) Report under Section 173 Cr.P.C. on 20.4.2011. Intimation regarding theft of the vehicle was given to the OPs on 20.3.2010. On asking of OPs, the complainant submitted relevant documents with them for settlement of the claim. Despite approach to OPs on many occasions, compensation alleged to be not paid. Rather, it is claimed that claim petition filed by the complainant with OPs was rejected by them qua which intimation was given to the complainant vide letter dated 8.2.2011. That rejection of claim took place due to delay on the part of the complainant in submitting intimation of theft of the vehicle to them. So, from the averments made in the complaint, it is made out that rejection of the insurance claim conveyed to the complainant through letter dated 8.2.2011 and as such, cause of action accrued to the complainant for filing the complaint on 8.2.2011 itself. However, this complaint filed on 27.01.2015 i.e. after three years and 11 months of accrual of cause of action. As per Section 24-A of the Act, complaint shall not be admitted by the District Forum unless it is filed within 2 years from the date on which cause of action has arisen. Thus, the present complaint being filed after three years and 11 months of accrual of cause of action is barred by limitation. However, sub section 2 of the 24-A of the Act, empower this Forum to entertain the complaint on being satisfied that complainant was having sufficient cause in       not filing the complaint within two years from the accrual of cause of action. That sufficiency of cause has to be shown by the complainant.

5.                Earlier complaint No.798 was filed on 21.11.2014, but the same was withdrawn with liberty to file the fresh complaint on the same cause of action, after removing the technical defects. Grant of that liberty through order dated 9.12.2014 by this Forum does not give right to the complainant to file this complaint without showing the sufficiency of the cause, particularly when the earlier filed complaint No.798 even was filed beyond period of two years from the date of accrual of cause of action because the same was filed after three years and nine months of accrual of cause of action. If at all in order dated 09.12.2014, it is mentioned that complainant is at liberty to file the fresh complaint on the same cause of action after removing technical defects,then this does not mean that complainant has been given liberty to file the complaint even beyond the period of limitation because provision of Section 24-A of the Act are mandatory in nature and if the complaint is barred by limitation, the Consumer Forum is required to dismiss the same irrespective whether the plea is taken by the opposite party or not. This in fact is the law laid down by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in passed judgment dated 5.10.2015 delivered in case titled as Cholamandalam Ms General Insurance Company Ltd., and another vs. Vinod Malik and another-bearing Revision No.1582 of 2015. Ratio of above cited case also lays that it is the duty of the Consumer Forum to take notice of Section 24-A of the Act and give effect to it. In case, the Consumer Forum find the complaint to be barred by limitation, but  decides the complaint on merits,         then it will be committing an illegality as per ratio of the above cited case. So by keeping in view the analogy of law laid down in the above cited case, it is obvious that if while permitting the complainant to withdraw the earlier complaint no.798 of 21.11.2014 on 9.12.2014, liberty was given to the complainant to file the fresh complaint on the same cause of action after removing the technical defects, then the same liberty was granted without discussing the point of limitation, albeit it was the duty of this Forum to take notice of Section 24-A of the Act. As the order passed on merits in a complaint barred by limitation is illegal and liable to be set aside as per law laid in above cited case and as such, the order dated 09.12.2014 cannot be held to be given right to the complainant to file the complaint beyond the period of limitation.

6.                Sufficiency of cause in not filing the complaint not established, particularly when after going through the contents of para no.2 and 3 of the complaint, it is made out that as per case of the complainant, though vehicle stood stolen on 23.12.2010,  but intimation regarding the said theft was given to the OPs on 20.03.2010. If these allegations levelled in the complaint in paras no.2 and 3 taken into consideration, then this means that intimation of the theft was given by the complainant to the OPs nine months even prior to the actual theft allegedly committed on 23.12.2010. So, this shows as if hypothetical or imaginary plea qua submission of intimation of theft has been taken in the complaint itself.

7.                If at all complainant engaged Sh.Gurjinder Singh Sahni, Advocate for filing the complaint earlier in March, 2011 and he contacted him after 10-15 days of signing papers and submitting the documents, then certainly he would have asked for the date fixed in the alleged filed complaint. Complainant do not claim to have asked for the next date of hearing fixed for service of OPs and as such, the same shows as if an imaginary story has been put forth regarding filing of the complaint after March 2011 through Sh.Gurjinder Singh Sahni, Advocate. No one will keep mum for three years and as such, story put forth in the complaint qua dismissal of earlier complaint in September, 2014 is unbelievable. If at all the complaint filed by Sh.Gurjinder Singh Sahni, Advocate would have been dismissed in default in September, 2014, then complainant could have got the copy of said order, but the same is not done and as such, certainly, negligence on the part of complainant is there in not filing the complaint within period of 2 years as envisaged under Section 24-A of the Act. After going through the averments made in the paras no.2 to 4 of the application u/s 24-A, it is made out as if complainant virtually kept mum for three years after filing of the alleged complaint in March, 2011 to until September, 2014. The dates on which, the complainant contacted his earlier counsel for ascertaining the status of the complaint not disclosed in the application and affidavit annexed with the application. Affidavit filed with application is defective because the same only shows as if the complaint and accompanied application u/s 24-A(2) of the Act is drafted by the counsel on the instructions of the complainant. Such an affidavit is no affidavit in the eyes of law and as such virtually the application under Section 24-A(2) of the Act even is not supported by affidavit of the complainant. As averments of the application under Section 24-A(2) of the Act shows negligence of the complainant for three years in not prosecuting the complaint properly after alleged engaging of Sh.Gurjinder Singh Sahni, Advocate in March, 2011 and as such, virtually complainant by concocting story wants to bring the complaint within period of limitation. That amounts to abuse of the process    of law. If at all Sh.Gurjinder Singh Sahni, Advocate kept on disclosing the complainant that complaint has been filed and fixed for service of OPs or earlier complaint dismissed in default for technical defects, but those facts were farce, then complainant being vigilant, litigant could have filed the complaint before Bar Council of India or District Bar Association or any other authority for complaining of the mis-conduct of Sh.Gurjinder Singh Sahni, Advocate. No such complaint alleged or shown to be filed even after engaging of present counsel Sh.Mandeep Singh Mann and as such, submission advanced by Sh.Vyom Bansal, Advocate has force that application filed by concocting story.

8.                Therefore, as a sequel of the above discussion, we hold that application for condonation of delay merits dismissal and the same is hereby dismissed. Consequently, complaint filed by complainant also stands dismissed in view of Section 24-A of Act. Copies of this order be made available to the parties free  of costs as per rules. File be indexed and consigned to record room.

 

                             (Sat Paul Garg)                            (G.K.Dhir)

                        Member                                    President

Announced in Open Forum

Dated:05.01.2016

Gurpreet Sharma.