Chandigarh

StateCommission

RP/47/2023

ICICI LOMBARD General Insurance Co. Ltd. - Complainant(s)

Versus

HARPREET KAUR - Opp.Party(s)

KAVEESH KAILEY

09 Nov 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Revision Petition No.	:	47 of 2023
Date of Institution	:	10.10.2023
Date of Decision	:	09.11.2023

 

 

 

 

ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, Plot No.149, 4^th Floor, Industrial Area, Phase-1, Chandigarh

 

…Revision Petitioner/Complainant

 

V e r s u s

 

Harpreet Kaur R/o House No.1538, Sector 7-C, Chandigarh

….Respondent/opposite party

BEFORE:

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MR.PREETINDER SINGH, MEMBER

  

Present:-     Sh. Kaveesh,  Advocate for the revision petitioner.

                   Dr.Rajansh Thukral, Advocate for respondent (on VC).

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

 

                   This revision petition has been filed by the revision petitioner/ICICI Lombard General Insurance Co. Ltd./opposite party no.1 challenging the order dated 14.06.2023 passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh  (in short the District Commission), vide which it was proceeded against exparte, for its non appearance on the said date.  

2.           Alongwith this revision petition, the petitioner has also filed application bearing no.798 of 2023 for condonation of delay of 27 days in filing  this revision petition, on the ground that it was on account of noting down wrong date by the Advocate concerned, that he could not appear before the District Commission on the date fixed i.e. on 14.06.2023, as a result of which, opposite party no.1 was proceeded against exparte. It has been averred that after knowing the said fact, the Advocate concerned, prepared the draft of this application and filed the same with delay of 27 days from the date of exparte order dated 14.06.2023 and  17 days after knowing about the case.
3.           The respondent/complainant contested this application by way of filing reply and stated that delay in filing this revision petition is intentional and deliberate. It was further stated that the petitioner even misrepresented the facts before the District Commission regarding filing of the revision petition before this Commission. It was averred that there is no sufficiency of reasons cited in the application as the applicant irresponsibly states, that he noted a wrong date in his diary as "24.06.2023" instead of "14.06.2023" whereas in the summons served upon the opposite party no.1, the date is clearly mentioned as 14.06.2023. Even the copy of the diary is not attached to the revision petition and he did not appear again on 27.07.2023 and there is no reason cited as to why he did not appear on 27.07.2023.  It has been further stated that it is admitted in the application that the Advocate concerned was aware about the date 27.07.2023. On 18.08.2023 even,  the Advocate concerned did not make any statement before the District Commission regarding any wrong noting of date in the diary and it clearly shows that this is a blatant lie and a lame excuse. It was averred that this application deserves to be dismissed with heavy cost.
4.           First coming to the application for condonation of delay in filing this revision petition, it may be stated here that the Hon’ble Supreme Court has time and again emphasized the importance of substantive rights of the parties and has held that when technicalities of the procedural law are pitted against rights of private parties, the former should yield to the latter. The Hon’ble Supreme Court in the case of Raheem Shah & Anr. Vs. Govind Singh & Ors, Civil Appeal No. 4628 of 2023, decided on 24.07.2023, under similar circumstances held as under:-

 "4. This Court in the case of Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors. reported in (1987) 2 SCC 107 has held as hereunder:

"The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on `merits'. The expression `sufficient cause' employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal."

 

5.           Under above circumstances, this Commission is of the opinion that in the present case also, the question of condonation of delay should be construed liberally rather than taking a parochial approach, as  result of which,  the litigation between the parties probably would come to an end much earlier after decision on the merits of their rival contention, rather than involving into rounds of litigations just with a view to get this delay condoned. Resultantly, this application for condonation of delay of 27 days in filing this revision petition stands allowed and the said delay is condoned.  This application stands dispose of accordingly.
6.           Now coming to the order dated 14.06.2023, whereby the revision petitioner/ opposite party no.1 was proceeded against exparte by the District Commission, as nobody put in appearance on its behalf. It may be stated here that it has been vehemently contended on behalf of the revision petitioner/ opposite party no.1 that it was only on account of noting down wrong date by the Advocate i.e. Mr. Kaveesh, that he could not appear before the District Commission on the date fixed i.e. on 14.06.2023, as a result of which, opposite party no.1 was proceeded against exparte. To this effect, Mr. Kaveesh, Advocate has already  filed his affidavit dated 06.10.2023 meaning thereby that it was on account of mistake of the Advocate of noting down wrong date that opposite party no.1 had been proceeded against exparte on 14.06.2023, as he (Mr. Kaveesh, Advocate) failed to  put in appearance on its behalf before the District Commission. It is significant to mention here that it is well settled law that  a party cannot be made to suffer for default of his Advocate.  In Rafiq and Anr. v. Munshilal and Anr. AIR 1981 SC 140 and  Smt. Lachi and Ors. v. Director of Land Records and Ors. AIR 1984 SC 41 while dealing with a similar issue held that a litigant cannot suffer for the fault of his counsel. The Hon'ble Supreme Court in the former case observed as under:

"What is the fault of the party who having done everything in his power expected of him, would suffer because of the default of his advocate.... The problem that agitates us is whether it is proper that a party should suffer for the inaction, deliberate omission, or misdemeanour of his agent.... We cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted."

 

7.           For the foregoing reasons, this revision petition is allowed subject to payment of cost of Rs.5000/- to the respondent-Harpreet Kaur which is to be paid to her by the revision petitioner by way of demand draft or direct transfer in her account number. The order impugned dated 14.06.2023 proceeding opposite party no.1 exparte is set aside and the matter is remanded to the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh for disposal of the main consumer in accordance with law after giving  the parties due opportunity as per law.   However, it is made clear that making payment of cost aforesaid by the revision-petitioner/oppose party no.1 shall be a condition precedent.
8.           Since the order passed by the District Commission has been set aside on a short ground and the matter has been remitted to it for disposal in accordance with law, we refrain from expressing any opinion one way or the other on merits of the matter as well and any observation made in this order shall not have any bearing on the merits of the case.
9.           The parties are directed to appear before the District Commission  concerned on 28.11.2023 for further proceedings.
10.           Application bearing no.799 of 2023 filed alongwith this revision petition stands disposed of, accordingly.
11.           Certified Copies of this order be sent to the parties, free of charge, as well as to the District Commission-I, U.T., Chandigarh alongwith its record, forthwith.
12.           The revision file be consigned to Record Room, after completion.

Pronounced

09.11.2023

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 (PREETINDER SINGH)

MEMBER

 

 

Rg.