STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 370 of 2012 |
Date of Institution | : | 07.11.2012 |
Date of Decision | | 20.11.2012 |
1. TATA AIG Life Insurance Co. Ltd., SCO No. 107-108, 2nd Floor, Sector 43-B, Chandigarh, through its Legal Manager, Sh. Rahul Dhanotia.
2. The Branch Manager, TATA AIG Life Insurance Co. Ltd., SCO No. 151-152, Madhya Marg, Sector 9-C, Chandigarh.
3. TATA AIG Life Insurance Company Ltd., through its Manager, Policy Owner Services, Corporate and Regd. Office at Delhi-B (infact Delphi-B) Wing, 2nd Floor, Orchard Avenue, Hiranandani Business Park, Powari (infact Powai), Mumbai – 400076.
……Appellants/Opposite Parties No.1 to 3
V e r s u s
1. Devi Parmila w/o Vijay Narain Chaudhary, R/o #2809, Ward No.12, Kharar, District S.A.S. Nagar (Mohali). (Respondent No.1/Complainant).
2. Bajaj Capital Insurance Broking through its Manager, SCO No. 341-342, 1st Floor, Sector 35-B, Chandigarh. (Respondent No.2/Opposite Party No.4).
....Respondents
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Nitin Thatai, Advocate for the applicants/appellants.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT
This appeal is directed against the order dated 28.10.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, filed by the complainant (now respondent no.1) and directed Opposite Parties No.1 to 3 (now appellants), as under:-
“In view of the above findings, we are of the opinion that the OPs No.1 to 3 are deficient in rendering proper service as well as indulged in unfair trade practice. We therefore allow this complaint against OPs No.1 to 3 and direct them to refund the amount of Rs.1,50,000/- to the complainant. The OPs No.1 to 3 are also directed to pay compensation of Rs.35,000/- along with litigation cost of Rs.5000/-.
However, the complaint qua OP-4 stands dismissed as no deficiency is made out against it.
This order be complied with by the OPs No.1 to 3, within one month, from the date of receipt of its copy, failing which they would be liable to pay the awarded amount, alongwith interest @ 12% p.a. from the date of filing of the present complaint i.e. 15.6.2011 till the amount is actually paid to the complainant, besides paying the litigation cost of Rs.5,000/-“.
2. Complaint qua Opposite Party no.4 (now respondent no.2), was dismissed, by the District Forum, on the ground, that no deficiency was made out against it.
3. The facts, in brief, are that on 26.12.2007, Opposite Party No.4 (Agent of appellants/Opposite Parties No.1 to 3), approached the complainant, through its representative, for explaining the benefits of Life Insurance Policy. It was explained to the complainant, that she was required to pay six installments of Rs.25,000/- each, as premium, after every six months, for three years, to Opposite Party No.1, for getting the benefit of premium holiday. It was also told to her that she would get regular income and returns, after the payment of six installments and, in the alternative, she could claim refund of the money paid, at any time, after three years. Accordingly, she took the Life Insurance Policy and made payment of six installments of Rs.25,000/- each, totaling Rs.1.50 lakhs. When, after making payment, of the aforesaid amount, she approached Opposite Party No.1, in January 2011, for enquiring about the benefits and returns, which were payable to her, by it, she was told that her Policy had been terminated, in view of the request for surrender, made by her, whereas, no such request was ever made by her. Further, a cheque, in the sum of Rs.38,300/-, towards the surrender value, was sent to her. A legal notice dated 30.03.2011, was served upon Opposite Parties No.1 to 3, to settle the grievance of the complainant, but to no avail. It was stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay the actual amount, paid towards the Insurance Policy, alongwith interest; compensation for mental agony and physical harassment; and cost of litigation.
4. Opposite Parties No.1 to 3, in their joint written version, pleaded that the complainant took ‘Invest Assure Gold Policy’ for which premium of Rs.25,000/-, was to be paid, on semi-annual basis. The said Policy was unit linked and was subject to market risks. It was stated that according to the terms and conditions of the Policy, the complainant was entitled to the Premium Holiday, after the payment of six semi-annual premiums of Rs.25,000/- each. In case, there was a delay, in payment of the next premium, then the Policy was to remain in force, subject to deductions. It was further stated that the last premium of Rs.25,000/-, was paid by the complainant, on 3.8.2010, and, thereafter, no premium was paid by her, and, as such, the Policy was terminated/cancelled, on account of non-payment of premiums, and surrender value in the sum of Rs.38,300.95P, was sent to the insured, towards full and final settlement of all the claims and demands, under the Policy. It was further stated that the complainant had the benefit of 15 days of free-look period, within which, she could have cancelled the Policy, but she did not do so. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 to 3, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. Opposite Party No.4, in its written version, pleaded that the Consumer Complaint, filed by the complainant, was not maintainable, as refund of premium amount, was an issue, related to the Insurance Policy, which was infact issued by the Insurance Company/Opposite Parties No.1 to 3, to the complainant. It was stated that, it (Opposite Party No.4), being an Insurance Broker, neither had any authority nor any obligation to accept/refund premium amount to the complainant, as the same was the prerogative of the Insurance Company/Opposite Parties No.1 to 3, only. It was further stated that its role was over, as soon as the complainant, duly received the Insurance Policy Certificate, from the Insurance Company/Opposite Parties No.1 to 3. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.4, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. The Parties led evidence, in support of their case.
7. Though, reply and evidence was filed, on behalf of Opposite Parties No.1 to 3, on 19.09.2011, yet, thereafter, none put in appearance on their behalf.
8. Accordingly, after hearing the Counsel for the complainant, Opposite Party No.4, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
9. Feeling aggrieved, the instant appeal, was filed by the appellants/Opposite Parties No.1 to 3.
10. Alongwith the appeal, an application for condonation of delay of 10 days, as per the applicants/appellants and 333 days as per the office report, in filing the same (appeal), has been moved. The grounds, set up, in the application, are to the effect, that the order was passed on 28.10.2011 and the appeal could be filed by 27.11.2011, but the certified copy thereof, was never received by the applicants/appellants/Opposite Parties No.1 to 3. It was stated that, no execution, in the said case, was also filed by respondent no.1/complainant, for more than 10 months, and, therefore, the impugned order did not come to the knowledge of the applicants/ appellants/Opposite Parties No.1 to 3. It was further stated that the applicants/appellants/Opposite Parties No.1 to 3, received the summons, to appear in the execution, for 27.09.2012, and only thereafter, they applied for the certified copy of the order impugned, on 10.10.2012, which was received by their Branch Office, on 15.10.2012, and was further sent to their Zonal Legal Office, at New Delhi. Thereafter, the comments of the Advocate of the Company were called, as to whether, the appeal was to be filed or not. It was further stated that after getting the comments of the Advocate, necessary instructions and permission were obtained, from their Head Office, at Mumbai, and, thereafter the appeal was filed. It was further stated that, due to the aforesaid reasons, the appeal could not be filed, in time. It was further stated that the delay, aforesaid, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
11. We have heard the Counsel for the applicants/appellants/Opposite Parties No.1 to 3, on the application, for condonation of delay, as also, in the main appeal, and have gone through the evidence, and record of the case, carefully.
12. First coming to the application, for condonation of delay, it may be stated here, that the same is liable to be dismissed, for the reasons, to be recorded hereinafter. The first question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 10 days, as per the applicants/appellants and 333 days as per the office report, in filing the appeal, under Section 15 of the Act. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab & Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court held as under:-
“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”
13. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under:-
“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”
14. In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-
“We hold that in each and every case the Court has to examine whether delay in filing the Special 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”.
15. Recently, Supreme Court in Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) has laid down that:-
“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”
16. Coming to the factum, as to whether, certified copy of the impugned order, was received by the applicants/appellants, for the first time on 15.10.2012, or earlier to that, it may be stated here, that as per the office report, certified copy of the impugned order was supplied to Opposite Party No.1, on 03.11.2011, by the Process Server of this Commission. It is evident, from page 192 of the District Forum file, that one Navdeep, received certified copy of the impugned order, on behalf of TATA AIG, Life Insurance Co. Ltd, SCO No. 107-108, 2nd Floor, Sector-43-B, Chandigarh-160047 i.e. Opposite Party No.1/appellant No.1. Thus, there was delay of 333 days, in filing the appeal. The version, set up, by the applicants/appellants, in the application, that for the first time, they came to know of passing of the impugned order, on receipt of summons, for 27.09.2012, in Execution Application no. 34 of 2012, and then they filed the application, for certified copy of the impugned order, on 10.10.2012, which was received on 15.10.2012, is, therefore, belied, by the document, at page 192 of the District Forum file. If, after receipt of the certified copy of the order impugned, by Opposite Party No.1/appellant No.1, its Officers/Officials did not deal with the case, in a proper manner, and woke up, from their deep slumber, after 333 days, then no indulgence could be shown to them. The applicants/ appellants were to explain, each day’s delay. They failed to explain the delay of 333 days, in filing the appeal. The version, set up by the applicants/appellants, in the application, that they did not come to know of the impugned order, earlier, is also not supported by the District Forum record. It is evident, from the record of the District Forum file, that, in the Consumer Complaint, the Counsel for Opposite Parties No.1 to 3, and Opposite Party No.4, continuously, appeared upto 19.09.2011, when the case was adjourned to 13.10.2011, for filing of rejoinder, if any, and oral arguments. On 13.10.2011, none put in appearance, on behalf of Opposite Parties No.1 to 3, Similarly, they did not put in appearance on 24.10.2011, and, ultimately, the case was decided on 28.10.2011. Right from the very beginning, Opposite Parties No.1 to 3/appellants, did not defend their case, with due diligence. Since, the Counsel for Opposite Parties No.1 to 3/appellants, was appearing, on behalf of the applicants/appellants/Opposite Parties No.1 to 3, in the Consumer Complaint, through out, except two dates, referred to above, it was required of him, to know about the result of the case. The applicants/appellants/Opposite Parties No.1 to 3, miserably failed to explain the delay of 333 days. There was complete in-action and lack of bonafides, on their part, in filing the appeal, after a delay of 333 days, which is about 11 times, more than the normal period of limitation, within which the same(appeal) could be filed. The delay, in filing the appeal was, thus, intentional and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 333 days, cannot be condoned. The application is, thus, liable to be dismissed.
17. The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory on the Commission, to condone the delay. The answer to this question, is in the negative. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was held as under:-
“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.”
18. It is evident, from the principle of law, laid down, in Ram Lal & Ors.’s case (supra), that even 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, requires the Commission, to take into consideration, all the relevant factors, and it is at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory upon the applicants/appellants, to take immediate steps, to ensure that the appeal was filed within the stipulated period, as envisaged under Section 15 of the Act. However, the applicants/appellants, just slept over the matter, and did not take steps to file the appeal in time. It was, thus, a case of complete lack of bonafides and inaction, on the part of applicants/appellants. The principle of law, laid down in Ram Lal & Others’ case(supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission should exercise its discretion, in favour of the applicants/appellants, in condoning the delay.
19. The next question, that arises for consideration, is, as to whether, the Commission can decide the appeal, on merits, especially, when it has come to the conclusion, that there is no sufficient cause, for condonation of delay of 333 days, in filing the same (appeal). The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India Vs B.S.Agricultural Industries (I) II(2009)CPJ 29(SC), while considering the provisions of Section 24A of the Act. Although, the question before the Apex Court, was only with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act, yet it (Apex Court) was pleased to observe as under ;
“Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:
“24A. Limitation period—(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”
It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”
20. The principle of law, laid down, by the Apex Court in State Bank of India’s case(supra), is equally applicable to the filing of an appeal U/s 15 of the Act. In case, this Commission, decides the appeal, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in State Bank of India’s case(supra).
21. For the reasons, recorded above, the application for condonation of delay of 333 days, being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal under Section 15 of the Act, is also dismissed, at the preliminary stage, being barred by time, with no order as to costs.
22. Certified copies of this order, be sent to the parties, free of charge.
23. The file be consigned to Record Room, after completion
Pronounced.
20-11-2012
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[NEENA SANDHU]
MEMBER
Rg
