Haryana

StateCommission

A/509/2016

CHOLAMANDALAM MS GEN.INSURANCE CO. - Complainant(s)

Versus

DINESH - Opp.Party(s)

PUNIT JAIN

09 Oct 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

         

                                       

                                      First Appeal No  :  509 of 2016 & 656 of 2017

                                      Date of Institution: 03.06.2016 & 30.05.2017

                                      Date of Decision :  09.10.2017

 

 

First Appeal No.509 of 2016

 

1.      Branch Manager, M/s Cholamandalam MS General Insurance Company Limited, SCO 206, 2^nd Floor, Sector 12, Karnal.

2.      Regional Manager, M/s Cholamandalam MS General Insurance Company Limited, SCO 2463-2664, 2^nd Floor, Sector 22-C, Chandigarh.

                             Appellants-Opposite Parties

 

Versus

Dinesh son of Jaipal, resident of Village Manana, Tehsil Samalkha, District Panipat.

Respondent-Complainant

 

First Appeal No.656 of 2017

 

Dinesh son of Jaipal, resident of Village Manana, Tehsil Samalkha, District Panipat.

Appellant-Complainant

 

Versus

 

1.      M/s Cholamandalam MS General Insurance Company Limited, SCO 206, 2^nd Floor, Sector 12, Karnal through its Branch Manager.

2.      M/s Cholamandalam MS General Insurance Company Limited, SCO 2463-2664, 2^nd Floor, Sector 22-C, Chandigarh through its Regional Manager.

                             Respondents-Opposite Parties

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri Balbir Singh, Judicial Member.

                             Shri Diwan Singh Chauhan, Member.

 

                                                                                                                   

Argued by:          Shri Punit Jain, Advocate for Cholamandalam MS General Insurance Company Limited.

                             Shri Gaurav Tyagi, Advocate for Dinesh-complainant.

                            

 

                                                   O R D E R

 

 

NAWAB SINGH J.(ORAL)

 

This order shall dispose of afore-mentioned two appeals bearing No.509 of 2016 and 656 of 2017 because they have arisen out of common order dated February 10^th, 2016 passed by District Consumer Disputes Redressal Forum, Karnal (for short, ‘District Forum’) in complaint No.415 of 2013 filed by Dinesh-complainant.

2.      First appeal bearing No.509 of 2016 has been filed by Cholamandalam MS General Insurance Company Limited and its functionary-opposite parties (for short, ‘Insurance Company’) for setting aside the impugned order and appeal No.656 of 2017 has been filed by the complainant for enhancement of compensation.

3.      The complainant was owner of tractor bearing No.HR60-7516.  The tractor was insured with the Insurance Company for the period July 14^th, 2011 to July 13^th, 2012.  On May 13^th, 2012 the complainant was on the steering wheel of the tractor and met with an accident resulting into amputation of his right leg.  The complainant submitted claim with the Insurance Company but it was repudiated on the ground that the driver was not holding valid and effective driving licence.

4.      The District Forum vide impugned order allowed the complaint directing the Insurance Company to pay Rs.2,00,000/- (Personal Accident for owner driver) alongwith interest at the rate of 9% per annum from the date of filing of the complaint, that is, September 26^th, 2013 till realization; Rs.20,000/- as compensation and Rs.5500/- litigation expenses to the complainant.

5.      Learned counsel for the Insurance Company has urged that the Insurance Company was not liable to indemnify the complainant because he was not holding driving licence to drive the tractor. 

6.      Indisputably, the tractor was insured with the Insurance Company.  The tractor met with an accident during the subsistence of the insurance policy.  The liability of the Insurance Company in case of personal accident was Rs.2,00,000/-.  The Insurance Company has placed on record report of Licensing Authority, District Kapurthala (Annexure A-4) whereby it was stated by the Licensing Authority that the complainant was holding a valid driving licence to drive scooter, car and Light Motor Vehicle (LMV).  In Sant Lal Vs. Rajesh & Ors., Civil Appeal Nos.8395-8396 of 2017, decided on July 03^rd, 2017 Hon’ble Supreme Court held that “driver having licence to drive light motor vehicle can drive such a transport vehicle of LMV class and there is no necessity to obtain separate endorsement, since tractor attached with the trolley was transport vehicle of the category of light motor vehicle.  Hence, there was no breach of the conditions of the policy.”  In view of this, it is held that the complainant was holding valid driving licence at the time of accident to drive tractor also being holder of licence of LMV.  So, the plea raised by the Insurance Company is repelled.

7.      The complainant alongwith appeal No.656 of 2017 filed an application under Section 5 of the Limitation Act seeking condonation of 445 days delay in filing the appeal. The grounds taken in the application is as under:-

“2.     That the learned District Forum, Karnal passed the order in favour of the appellant-applicant on 10.02.2016 and thereafter the respondent company has filed the appeal against the said order whose notice/summon was received by the applicant/appellant on 27.04.2017 wherein the applicant appeared before this Hon’ble Commission on the date of hearing, that is, 01.05.2017.

3.      That now the appellant wants to file the accompanying cross-appeal before this Hon’ble Commission qua enhancement of the compensation amount under various heads, and it is being filed after a delay of 445 days after receiving the notice/notice in the appeal No.509 of 2016 filed by the respondent company.”

 

8.      This Commission has considered the submission made on behalf of the complainant. The explanation for the delay caused in filing of the appeal is far from being satisfactory.

9.      A 30 days period has been prescribed in Section 15 of the Consumer Protection Act, 1986, for filing appeal against the order of the District Forum. However, the proviso contained 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 period prescribed. The expression ‘sufficient cause’ has not been defined in the Act, rightly so, because it would vary per facts and circumstances of each particular case.

10.    By now it is well settled that the delay cannot be condoned on the ground of equity and generosity. While proceeding with the prayer made it has to be kept in mind that expiration of the period of limitation prescribed gives a right to the adversary to treat the order as binding between the parties and this legal right provided by lapse of time should not be disturbed light heartedly. Similar view dovetails from the following authoritative pronouncements:-

11.    Hon’ble Supreme Court in Bikram Dass Versus Financial Commissioner and others, AIR 1977 Supreme Court 1221 has held as under:-

“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 right must explain every day’s delay.”

12.    In Govt. of Rajasthan & Ors versus Janak Singh & anr, IV(2014) CPJ 36 (NC), Hon’ble National Commission relied upon the judgments of Hon’ble Apex Court as under:-

“8.      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.”

13.        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.”

14.    Hon’ble Supreme Court after exhaustively considering the case law on the aspect  of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 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.”       

 15.   Hon’ble Apex Court in 2012(2) CPC 3 (SC)–Anshul Aggarwal  Vs. New Okhla Industrial Development Authority  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”.

Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 140 days. In such circumstances, application for condonation of delay is dismissed”. 

16.    In view of the above, this Commission has to bear in mind that the object of expeditious disposal of consumer dispute would get defeated if such like applications filed on frivolous grounds are allowed. The law comes to the assistance of the vigilant and not of the sleepy.

17.    The ground taken in the application as sufficient cause for condonation of delay would tantamount to putting premium on the parties own acts of negligence and non challance.  So, this Commission does not find it a fit case to condone the delay of 445 days.  Hence, the application for condonation of delay is dismissed.

18.    The appeal filed by the complainant also deserves to be dismissed on merits also. The complainant has filed the appeal for enhancement stating that the interest, compensation and the litigation expenses awarded by the District Forum are on lower side.

19.    The District Forum has directed the Insurance Company to pay Rs.2,00,000/- alongwith interest at the rate of 9% per annum from the date of filing of the complaint, that is, September 26^th, 2013 till realization; Rs.20,000/- as compensation and Rs.5500/- litigation expenses to the complainant. This being so, the complainant has been adequately compensated.

20.    For the reasons recorded supra, the order under challenge, being based on the correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.  Hence, both the appeals are dismissed.

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

 

Announced 09.10.2017

(Diwan Singh Chauhan) Member

(Balbir Singh) Judicial Member

(Nawab Singh) President

UK