Haryana

StateCommission

A/186/2019

DEENA KHAN - Complainant(s)

Versus

HDFC ERGO GENERAL INSURANCE CO. LTD. AND ANOTHER - Opp.Party(s)

TUSHAR GAUTAM

13 Feb 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA

First Appeal No.186 of 2019

Date of Institution:20.02.2019

                                                    Date of Decision:13.02.2020

 

Deena Khan S/o Shri Assin, R/o Village Nangla Ahsanpur, Tehsil Hodal, District Palwal, Haryana.

….Appellant.

Versus

1.      HDFC Ergo General Insurance Co. Ltd., Shop No.110-117, Subham Tower, near Fortis Hospital, Shahid Bhagat Singh Marg, Faridabad, District Faridabad through its Branch Manager.

2.      HDFC Ergo General Insurance Co. Ltd., HDFC Ergo General Insurance Co. Ltd., Regd. Office Reman House HT Parkeh Marg, 169, Back Way Reclamation, Mumbai-400020 through its Manager.

….Respondents.

 

CORAM:-            Shri Harnam Singh Thakur, Judicial Member.

                             Mrs. Manjula, Member.

 

Present:-            Shri Tushar Gautam, counsel for the appellant.

O R D E R

 

HARNAM SINGH THAKUR, JUDICIAL MEMBER:

 

                    Present appeal has been filed by the appellant against the impugned order dated 29.10.2018 passed by learned District Consumer Disputes Redressal Forum, Faridabad (in short ‘District Forum’), vide which, complaint filed the present appellant was dismissed.

2.                Alongwith the present appeal, appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of 77 days.

3.                Briefly stated, the facts narrated in the complaint are that the complainant was the registered owner of a Tata LPT-2518 (Trailer) bearing registration No.HR-73/4586, model 2012 which was insured with the opposite parties (in short ‘Ops’) vide policy No.2315200616226200000 w.e.f. 15.11.2013 to 14.11.2014 and he paid a sum of Rs.35,555/- to the Ops as a premium of said policy. It was alleged that on 25.06.2014 about 12:00 A.M driver and conductor of the complainant were gone from village Teekri to Nangal on the said vehicle, some bad elements/persons came in a truck and stopped their truck in front of his vehicle and looted his vehicle. Thereafter, the matter was reported at Police Station Pahadi, district Bharatpur, Rajasthan and FIR No.196 dated 26.06.2014 was lodged. It was further alleged that on the same day complainant also intimated the Ops about said incident. Later on police also filed the untraced report before the Court. Complainant approached Ops regarding the claim and on 24.02.2015 Ops sent a letter in which it was stated that company passed the claim of complainant within two weeks. It was further alleged that after waiting for a period of approximately six months complainant served a legal notice dated 25.08.2015, but to no avail. Thus, there was deficiency in service on the part of OPs.

4.                Complaint was resisted by the OPs by filing of separate written versions. OPs No.1 & 2 filed their joint written version, whereas OPs No.3 filed its separate written version before learned District Consumer Disputes Redressal Forum, Faridabad (in short “learned District Forum”).

5.                OPs No.1 & 2 submitted in their written version that after receipt of the theft claim of the complainant the same got processed and investigated by appointing independent surveyor and loss assessor. It was further submitted that as per the intimation given by the complainant to the Ops about the date of loss was 21.06.2014 but on the other hand during the investigation it has been revealed by the investigator that the date of loss as per FIR and VFT the date of loss was 25.06.2014, which was misrepresentation of material facts. It was further submitted that as per the information furnished by the complainant during survey of the reported loss, the Ops have given an understanding that the complainant had sold the vehicle in question to Mr. Arshad but neither the vehicle nor the policy was transferred till 30.04.2015 in the records of relevant competent authority and FIR was lodged by Arshad where he stated that the vehicle in question belongs to him. Complainant had lost his insurance interest on selling the vehicle to purchaser and the purchaser had not deprived any insurable interest in the vehicle in compliance with GR 17 of IMT and relevant provisions of the MV Act. Therefore, the claim of the complainant was repudiated and file was closed as No Claim. Thus, there was no deficiency in service on the part of OPs No.1 & 2.

6.                OP No.3 submitted in its written version that the complainant availed a funds facility as vehicle loan to the tune of Rs.15,50,000/- from the answering OP for which a loan agreement No.RLNVDEL000225475 dated 08.11.2012 was duly signed and executed between the parties. Complainant was to repay the abovesaid loan amount in 28 equal monthly installments of Rs.65,598/- each and the first installment was to be paid from 01.12.2012 and the last installment is to be paid on or before 01.03.2015. It was further submitted that after obtaining the loan facility the complainant always remained irregular in making the repayment of loan and defaulted in installments in very beginning. Thus, there was no deficiency in service on the part of OP No.3.

7.                Feeling aggrieved therefrom, complainant has preferred the present appeal.

8.                Arguments have been advanced by Shri Tushar Gautam, counsel for the appellant on the application for condonation of delay of 77 days.

9.                It is alleged that the appeal could not be filed in time because appellant is a simple villager and does not know much about the court procedure especially the law of limitation. It is further argued that the appellant is belonging to a poor family and there is no independent source of income with the family of appellant. After making the arrangement of funds, appellant approached the present counsel. Delay in filing appeal was not intentional and willful but due to above mentioned facts and circumstances.

10.              This argument is devoid of any force. The explanation given by learned counsel for the appellant is not proper. Explanation for delay seems to be vague and concocted. 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.

11.                       The Hon’ble Supreme Court has opined in Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221  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 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”.

12.             Taking into consideration, the plea raised by the learned counsel for the appellant in the application for condonation of delay and the settled principle of law, we do not find it a fit case to condone the delay of 77 days in filing the appeal when no ‘Sufficient Cause’ is established. Hence, application filed for condonation of delay is dismissed.

13.              Even on merits, no case is made out in favour of the appellant/complainant because the claim of the complainant was repudiated by the Ops on the ground of misrepresentation of facts. Moreover, the appellant/complainant had given different dates of occurrence of theft/Robbery in different documents, whereas it is 25.06.2014 in the complaint before learned District Forum, but in the statement given to the investigator it was reported as 20.06.2014. This fact amounts to misrepresentation of facts which goes against the terms and conditions of the policy.

14.              As a sequel of above discussion, we do not found any illegality with the impugned order dated 29.10.2018 passed by learned District Forum. So, the present appeal is hereby dismissed being time barred as well as on merits.

 

February 13th, 2020              Manjula                            Harnam Singh Thakur                                                         Member                           Judicial Member

Addl. Bench                    Addl. Bench         

R.K..