Haryana

StateCommission

A/371/2015

RELIANCE GEN.INSURANCE CO.LTD. - Complainant(s)

Versus

D.H. LAWRENCE SENIOR SECONDARY SCHOOL - Opp.Party(s)

P.M.GOYAL

07 Jan 2016

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

                                                         First Appeal No.371 of 2015

Date of Institution: 23.04.2015

                                                               Date of Decision: 07.01.2016

 

M/s Reliance General Insurance Company Ltd., S.C.O. No.400-402, HDFC Bank Building, Near D Park Town, Rohtak (Haryana) through Sh.Amit Chawla, Deputy Manager, SCO 145-146, Sector 9-C, Chandigarh.

 

…..Appellant

Versus

 

D.H. Lawrence Senior Secondary School, Rohtak Road Jhajjar, District Jhajjar (Haryana) through its President Ramesh Rohilla.

                                      …..Respondents

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:              Shri Gaurav Sharma, Advocate counsel for appellants.

                             Shri Ramesh Rohilla respondent in person.

 

                                                   O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:

Complainant alleged  that school bus bearing registration No.HR-63-B-3913 was insured with opposite party (O.P.) for Rs.9,48,000/-.  The insurance was valid from 02.07.2012 to 01.07.2013. The bus met with an accident  on 02.12.2012 and was badly damaged.   Intimation was given to the insurance company.  He spent Rs. 1,55,496/- on repairs and claim was lodged, but, O.P. repudiated the same on false grounds.  Thus there was deficiency in service on the part of the O.P.

2.      O.P. filed reply and alleged that vehicle in question was being plied by the complainant school out of the route specified in the route permit at the time of accident.  As per Section 66 (3) (h) of Motor Vehicle Act, 1988 (In short “M.V.Act”), the owner of a transport vehicle cannot use his vehicle on any public place without valid permit. The claim of the complainant was rightly repudiated as he violated the terms and conditions of insurance policy and M.V.Act.  On the other hand, independent surveyor Mr.Rupin Takar assessed loss to the tune of Rs.62,700/-.  Thus there was no deficiency in service on it’s part.

3.      After hearing both the parties, learned District Consumer Disputes Redressal, Forum, Jhajjar (in short “District Forum”) allowed the complaint vide order dated 10.11.2014 and directed as under:-

“Therefore, it is directed that the respondent Nos.1 and 2 shall make the payment of a sum of Rs.62,700/- to the complainnt which has been assessed by the surveyor of the respondents company vide Ex.R-5 along with a lump sum compensation of Rs.25,000/- on account of mental agony, harassment and litigation expenses suffered by the complainant.  The complainant is further entitled for a sum of Rs.2000/- from the respondent no.3 also who has been failed to come before this forum in respect of notice issued to him and also failed to redress the grievance of complainant outside the court.”

4.      Feeling aggrieved therefrom, O.P.-appellant has preferred this appeal. Alongwith the appeal appellant has filed this application for condonation of delay of 111 days in filing the appeal.  It is alleged that impugned order was passed  on 10.11.2014 and certified copy was prepared on 13.11.2014 and same was received by the appellant on 2811.2014.  It was further alleged that before approval for filing the appeal, the file was misplaced inadvertently and same was found in First week of April 2015. Due to the above said reason, delay be condoned.

5.      Arguments heard.  File perused.

6.       Learned counsel for the appellant vehemently argued  qua application that as per facts mentioned in the application, it is clear that file was misplaced and  same was found only in first week of April 2015.. In this way the delay was not intentional and same may be condoned.

7.      This argument is devoid of any force. From the perusal of file, it is clear that impugned order was passed on 10.11.2014 in the presence of appellant’s counsel and certified copy was dispatched by the registry to the appellant on 23.11.2014.  It is also clear that on receipt of the order, the appellant immediately issued instructions to the local counsel at Jhajjar to send the case file. If file was misplaced it could have been re-constructed. The appellant did not show interest for filing an appeal.  It appears that plea about misplacement of file has been raised just to cover the inordinate delay. 

8.      A period of 30 days has been provided for filing an appeal against the order of the District Forum. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days 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.

9.      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.  Rewa Coalfields  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.”

         

    Hon’ble Supreme Court in  Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 held as under;

“We have considered   the respective    submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same   time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”       

    In 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority, Hon’ble Apex Court observed as under:-

“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”.

          Even otherwise case is not good on merits as being discussed hereinafter, so also delay cannot be condoned.

10.    Learned counsel for the appellant-O.P. argued on merits that as per section 66 (3) (h) of M.V.Act, a vehicle cannot be plied in the public place  without the valid permit.  In the present case the complainant was not having a valid permit but despite that the  District Forum awarded the compensation relying upon the provisions contained in Section 66 (3) (h) of the M.V.Act which were omitted by the Act of 27 of 2000.  As per opinion of Hon’ble National Commission expressed in revision petition No.2476 of 2012 titled as New India Assurance Company Ltd. Vs. Birbal Singh Jhakhar decided on 06.02.2014 and in revision petition No.3101 of 2013 titled as The New India Assurance Co. ltd. Vs.Sh.Rajesh Yadav decided on 01.04.2014,  if a vehicle is plied without valid permit the insured cannot ask for compensation.  So impugned order dated 10.11.2014 be set aside.

11.    This argument cannot come to the rescue of the appellant because the respondent-complainant has shown today the copy of the permit number 75/B/2011 which is valid upto 20.09.2016.  It shows that at the time of accident the complainant was having valid permit to ply the bus at the public place. The O.P-appellant has not produced any evidence to show that the place where accident took place was not covered by this permit.  In the absence of any evidence to this effect it cannot be presumed just on the basis of pleadings that complainant was not authorized to ply the bus at the place of accident.  It is  well settled law that benefit of doubt is to be given to the consumer. Reference to this effect can be made to the opinion of our Hon’ble High Court, Madras expressed in W.P.No. 2723 of 2006 titled as S.Kumar Vs. The Regional Transport Officer, Dharmapuri decided on 05.07.2010. In these circumstances even if provisions contained in Section 66 (3) (h)  of M.V.Act are not applicable the complainant is entitled for compensation because he was having a permit. The appellant cannot derive any benefit from the cited case law as complainant was having permit in this case. In these circumstances impugned order dated 10.11.2014 cannot be set aside.

12.    Resultantly application filed for condonation of delay is dismissed and appeal fails on the both counts i.e. delay as well as on merits, hence dismissed.

13.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

January 07th, 2016     Urvashi Agnihotri                                R.K.Bishnoi,                                                               Member                                              Judicial Member                                                         Addl. Bench                                        Addl.Bench                

 

S.K.