STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
First Appeal No.463 of 2018
Date of Institution: 16.04.2018
Date of final hearing: 17.04.2023
Date of pronouncement: 24.04.2023
Satbir S/o Sh. Shiv Lal, resident of House No. 186, Gali No. 5, New Biselwa Colony, Old Faridabad, also at VPO Suhra, District Jhajjar, Haryana.
…..Appellant
Versus
Future General India Insurance Company Limited, having its registered office at 3rd Floor, Kailash Building, Kasturba Gandhi Marg, New Delhi-1110001 through its legal Executive Khushbu Tyagi.
…..Respondent
CORAM: Naresh Katyal, Judicial Member
Present:- Mr. Anshul Baghla, proxy counsel for Sh. Chanderhas Yadav, Advocate for the appellant.
Mr. Sachin Ohri, Advocate for the respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
This appeal has been filed beyond prescribed period of limitation. As per office report there is delay of 295 days in filing of this appeal. An application has been filed to condone the period of delay in filing of this appeal in which 303 days delay period has been mentioned. It is pleaded in application that applicant is poor person, residing at Village Shura, District Jhajjar, Haryana. For sometime he is residing at House No. 186, Gali No. 5, New Biselwa Colony, Old Faridabad at the house of his relatives. Appellant did not receive order at the address of his village. He visited house of his relative on 26.03.2018 to do some dealing regarding crop payment of their land which applicant/appellant was taking care of. Then his relatives informed that there is a letter in his name, received by them. Appellant/applicant brought that letter to his counsel who informed him on 27.03.2018 that his complaint has been dismissed. Thereafter, he approached his counsel on 31.03.2018. 5/6 days were taken in preparing of appeal and it has been filed on 16.04.2018. Application is supported by affidavit of appellant.
2. Learned counsel for appellant has raised submissions accordingly and urged that explanation given in application for seeking condonation of delay constitutes sufficient cause. Delay in fling of this appeal is not intentional. It is urged that main appeal should not be thrown overboard, on mere technicalities of limitation, as acceptability of explanation should normally be the criteria. On the other hand, learned counsel for respondent urged that explanation furnished by appellant is not worth acceptance for condoning delay.
3. After hearing rival contentions so put across to this Commission; it is of the considered view that application for seeking condonation of delay in filing this appeal, has no merit.
4. It is deciphered that impugned order dated 18.05.2017 was passed by learned District Commission, Faridabad in presence of counsel for appellant. It is settled legal adage that ; order passed in presence of counsel for a party to the lis is deemed to have been passed in presence of litigant. He has to pursue his rights within limitation prescribed in law for filing appeal. There are lack of bona-fides on the part of appellant in present case. He himself was not vigilant.
5. Right at very outset, it has to be borne in mind that law of condoning limitation should not be applied, in order to defeat substantive rights of parties. Court has to keep in mind that successful litigant has acquired certain rights on the basis of impugned order or Judgment & Decree, which has been challenged with the shield of an application to condone limitation. Lots of time is wasted in court proceedings, besides costs. Law of limitation fixes life span for such legal remedy, for the redress of legal injury so suffered, but it should not be resorted to, where dilatory tactics are apparent, as it is so visible in present case.
6. Curiously enough, nothing seems to have been done by him (appellant/applicant), after passing of impugned order dated 18.05.2017, in an endeavor to promptly file this appeal. Aforesaid conduct of appellant, ipso facto reflects casual and lethargic approach on his part in process of filing this appeal. That is why, it has been filed much time beyond expiry of limitation. Vague pleas have been taken in application that appellant came to know of the letter from his relatives and he (appellant) happened to receive it on 26.03.2018. Hence, it would be travesty of justice to consider these vague pleas, on their mere face value. In totality, averments made in application for seeking condonation of delay, in filing appeal, by appellant and in his supporting affidavit do not inspire confidence at all. It is hard to swallow that for long period of 295 days, he remained unaware of the fate of his complaint.
7. Hon'ble Apex Court in case of Pundlik Jalam Patil (D) by LRS. vs. EXE ENG. Jalgaon Medium Project and another (2009-1) PLR 128 has observed that: statute of limitation are sometime described as ‘statutes of peace’. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. Law of limitation is thus founded on public policy. Vague statement made in application (as it is so in case in hand) for seeking condonation of delay, itself is sufficient, to reject the application without any further inquiry as to whether averment made in application reveals ‘sufficient cause’ to condone delay or not. A party taking vague and false stand to get rid of the bar of limitation, should not be encouraged to get any premium because of falsehood of his/their plea in seeking condonation of delay. In present case, it was sheer responsibility of appellant herein, to remain vigilant about his cause and legal right to file appeal, immediately after his compliant was dismissed. It was his responsibility alone to inquire about the fate of decision of complaint from his counsel in order to file appeal, particularly when he was duly represented by Advocate in proceedings of complaint. Hon’ble Apex Court in case titled as ‘Tribhuvanshankar Versus Amrutlal’, 2014 (1) RCR (Civil) 206 has observed that: fundamental policy behind limitation is that if a person does not pursue his remedy within stipulated time frame, then the right to sue gets extinguished. Explanation provided by appellant herein to condone the delay in filing this appeal is not satisfactory. It is beyond the realm of acceptability to term the cause so projected, as sufficient cause.
8. Section 5 of the Limitation Act envisage the term “sufficient cause.” Before accepting application; court has to satisfy itself about ‘sufficiency of cause’ as projected in application. Concept such as “liberal approach” “justice oriented approach” “substantial justice” cannot be employed to jettison the substantial law of limitation, especially in case where court concludes that there is no justification for condoning delay. Courts of law do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to law. Discretion has to be exercised in a systematic manner, only by reasons. Whims or fancies; prejudices or predilection cannot be, and should not form the basis for exercising the discretionary powers. While observing so, this court gains strength from ratio of law laid down by Hon'ble Apex Court in case Lanka Venkateshwarlu (D) by LRs. vs. State of A.P. and others 2011(2) C.C.C.013(SC).
9. Consequently, The “Litmus test” whether or not a cause is sufficient is to see whether it could have been avoided by party by the exercise of due care and attention. The decisive factor in condonation of delay is not the length of delay, but sufficiency of a satisfactory explanation and following principle have to be taken into account, while condoning the delay:-
i) Conduct of parties, bonafide reason for condonation.
ii) whether delay could have been easily avoided with normal care and caution.
iii) approaching the court with clean hands.
10. Above cardinal principles have been enunciated by Hon'ble Apex Court in case of Balwant Singh (Dead) vs. Jagdish Singh and others 2010(4) 488. There is absolutely no question of construing the expression ‘sufficient cause’, liberally. Provision of Code are meant to advance the cause of justice. This, however, does not mean that court should readily accept whatever appellants/applicants allege, in order to explain away their default. It would be futile to lay down precisely as to what considerations would constitute “sufficient cause”. Any statement of illustrative circumstances or facts can tend to be a curb on free exercise of its mind by court in determining whether: facts and circumstances of a particular case amounts to “sufficient cause” or not. Law of limitation may harshly affect a particular party, but it has to be applied with all its rigour, when statute so prescribe. The courts have no power to extend the period of limitation on equitable grounds.
11. In case in hand, as already observed, herein-before; explanation as mentioned by appellant can hardly be said to be a reasonable, satisfactory or even proper, for seeking condonation of delay of abnormal period of 295 days resulted in filing of this appeal. The quality of explanations raised in application, do not project any sufficient cause. Approach of appellant herein appears to be contaminated and accentuated by malafide intention/ulterior motives. As observed above, appellant was not vigilant in pursuing his cause. There is gross/serious negligence on his part. It cannot be believed by any prudent person that appellant had not got notice of dismissal of his complaint, soon after its decision on 18.05.2017. Hence, the type of averments made in the application under consideration ex-facie lack bonafide. The explanation has to be reasonable or plausible so as to persuade the court to believe that explanation rendered is not only true, but is worthy of exercise judicial discretion. If it does not satisfy any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. This balance has to be kept in mind by the courts, while dealing with the application for condoning the delay. While observing so, this court also gains strength from ratio of law laid down by Hon'ble Apex Court in case Ram Lal and others vs. Rewa Coalfields Ltd. AIR 1962 SC 361 wherein it has been observed as under:-
“In construing Sections it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be lightly heartedly destroyed.”
12. Learned counsel for the appellant relied upon the judgment of Hon’ble Apex Court in case “Jaina Construction Company versus Oriental Insurance Company Ltd.” Civil Appeal No. 1069 of 2022 decided on 11.02.2022.
13. In view of the subjective discussion hereinbefore on all relevant facets of controversy regarding delay in filing of this appeal; the reliance placed by learned counsel for the appellant on cited judgment will not enure any benefit to him. Even, otherwise facts of cited judgment are distinguable to the facts of present appeal.
14. This being so, this appeal of the appellant is liable to be dismissed on the ground of limitation. It is dismissed as such, being time barred.
15. Now adverting to merits of the appeal. Appellant got his tractor No.HR-14H-2944, insured with respondent-Insurance Company. Period of Insurance was from 21.03.2011 to 20.03.2012. Its Declared Value (IDV) was Rs.3,70,000/-. Tractor was stolen on 19.11.2011. F.I.R. No.276 (Annexure R-4) was lodged in Police Station, Faridabad on 19.11.2011. Police submitted untraced report which was accepted by Court on 09.10.2012. Insurer’s investigator submitted his report dated 29.03.2012 (Annexure R-2). Complainant’s claim was repudiated vide letter dated 02.03.2013 on the ground that insured had violated condition No.1 of policy which states that notice shall be given in writing to the company immediately upon occurrence of any accident or loss or damage.
16. OPs admitted that tractor bearing No. HR-14H-2944 was insured with it for the period of insurance (21.03.2011 to 20.03.2012). It pleaded that they were informed about the loss after inordinate delay of 66 days. So, he violated the terms and conditions of insurance policy.
17. Parties led their respective evidence.
18. Complaint was initially allowed by District Forum vide order dated 15.10.2015 and OPs were directed to pay insured amount with interest @ 9% p.a. from the date of filing of complaint till realization. OPs were also directed to pay Rs.5500/- as compensation towards mental agony, harassment and Rs.2200/- towards litigation expenses.
19. Feeling aggrieved; OPs preferred appeal before this Commission which was dismissed vide order dated 16.03.2016. OPs filed Revision Petition before Hon’ble National Consumer Disputes Redressal Commission, which, vide order dated 30.09.2016 has remitted back the matter to District Forum for deciding afresh, after examining agent Jitender in the light of the statement made by the complainant before it. Vide order dated 01.02.2017 Hon’ble National Consumer Disputes Redressal Commission directed District Forum to examine agent Kailash, in place of agent Jitender.
20. In compliance of the orders, complainant examined agent Kailash as CW-1. On subjectively analyzing the statement of CW-1 Kailash learned District Commission, in impugned order dated 18.05.2017 has observed that stand of the complainant to the effect that he contacted the agent through whom insurance policy has been obtained and intimated him about the theft of vehicle stands falsified. Whereas, plea of insurance company to the effect that it was informed regarding theft of tractor after 66 days stands proved. Consequently, learned District Commission in impugned order dated 18.05.2017 has held that complainant has contravened terms and conditions of insurance policy, by not giving immediate information about theft of tractor and there is no satisfactory explanation for delay of 66 days. Hence, he is not entitled to claim. Resultantly, complaint was dismissed.
21. Feeling aggrieved complainant/appellant filed this appeal before this Commission. Learned counsel for appellant has urged that reasoning given by learned District Consumer Commission, impugned order dated 18.05.2017 is not legally justified in view of ration of law laid down by Hon’ble Apex Court case of Jaina Construction Company (supra).
22. Affirmative statement of CW-1/Kailash examined by complainant before District Commission; on 13.02.2017 runs as under:-
“I was the sub agent in Future Generali Insurance Company in 2011. I prepared the insurance policy of the tractor Mahindra & Mahindra bearing registration No. HR14H-2944 having its chassis NO. RAPO 01458, engine No. RAPO 01458 Model 2011. The cover note is A8847701. My sing and mobile number No. 9813579007 is also mentioned on the cover note. Rs.4646/- cash received by me from Mr. Satbir Singh as per policy No. 2011M0076931FRP which was valid upto 20.3.2012 midnight. Intermediary code No. is 60018552 which was in the name of Lek Raj. The cover note and policy is original and prepared by me and Dinesh/Lekh Raj on that date.”
23. His cross examination was deferred on 13.02.2017 and he was cross-examined on 07.04.2017. Following is text of his cross-examination:-
“I firstly met with Satbir Singh at the time of issuance of the policy and prior to this I was personally known to Sh. Satbir Singh, nephew. I do not have any letter with regard to my sub agent with the Future Generali Ins. Co. I am not directed connected with the insurance company. I do not have any copy of cover note in which I done my sign and mentioned my mobile number in the cover note. I do not have any second copy of the cover note with me today as the same has been given to my agent Lekhraj. I met with Satbir second time prior to three months from today and from 2011 to December 2016 I had never met with Satbir. I came to know about the said matter in the month of December, 2016 as and when I met with Satbir. It is correct that I do not have any direct connection with the insurance company as an agent and it is also correct to say that I do not have any membership of agent and issuing the cover note and policy on behalf of insurance company. Volunteered I have worked with the agent.”
24. On critically analyzing the statement of CW-1 Kailash, it is proved that; in his affirmative statement he has not uttered a word regarding intimation of theft of tractor in question. However, in cross-examination an attempt was made to elicit the time of intimation regarding theft and the witness remained firm on his stance by deposing that he met Satbir Singh firstly at the time of issuance of insurance policy (policy issued on 21.03.2011); subsequently prior to three months from today (07.04.2017 when he was cross-examined). From 2011 to December, 2016, he never met with Satbir. He came to know about the matter in the month of December, 2016 when he met Satbir.
25. Consequently, even from the statement of CW-1 Kailash, complainant has miserably failed to stimulate his case that he gave prompt information to the insurer about theft of vehicle in question which resulted on 19.11.2011. This being the factual scenario so emerged from the testimony of CW-1 Kailash, it is held that there is no factual fault or legal error in the appreciation of evidence by learned District Commission while arriving at finding that stand of the complainant about the intimation regarding theft stands falsified, rather its proved that insurer was informed regarding theft of tractor after 66 days. On the given facts; reliance placed on judgment of Hon’ble Apex Court in case of Jaina Construction Company’s case (supra), by learned counsel for appellant is unfounded.
26. Insured having not promptly intimated about theft to insurer is bound to face adverse legal consequences. There is proved violation of terms and conditions of insurance policy on the part of insured. There is no deficiency in service or unfair trade practice on the part of insurer. Complainant has been rightly non-suited and complaint filed by him has been rightly dismissed by learned District Commission vide order dated 18.05.2017. There is no illegality or perversity in the impugned order dated 18.05.2017. Hence, it is maintained and affirmed. This appeal being devoid of merits stands dismissed on merit also.
27. Applications pending, if any stand disposed of in terms of the aforesaid judgment.
28. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
29. File be consigned to record room.
Date of pronouncement: 24th April, 2023
Naresh Katyal Judicial Member
Addl. Bench-II
D.K
