Haryana

StateCommission

A/495/2017

ABDUL HALIM - Complainant(s)

Versus

IFFCO TOKIO GENERAL INSURANCE - Opp.Party(s)

DAVINDER KUMAR

16 May 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                  

           

First Appeal    No  :      495 of 2017

Date of Institution  :      21.04.2017 

                                                Date of Decision    :    16.05.2018 

  

Abdul Halim aged about 30 years son of Mohd. Ahmad, resident of Buria, Tehsil Jagadhari, District Yamuna Nagar.

                                      Appellant-Complainant

Versus

 

1.      IFFCO Tokio General Insurance Company Limited, IFFCO House, 3^rd Floor, 34, Nehru Place, new Delhi -110019 through its Branch Manager.

 

2.      Love Nanda, Agent, IFFCO Tokio General Insurance Company Limited, resident of House No.3, Nehru Park, Opposite Fox Club, Yamuna Nagar.

          Respondents-Opposite Parties

 

 

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

                             Shri Balbir Singh, Judicial Member.

                            

                                                                            

Argued by :         Shri Davinder Kumar, counsel for the appellant

                             Shri Vishal Aggarwal, counsel for the respondent No.1

                             None for the respondent No.2

 

                                                   O R D E R

 

NAWAB SINGH J. (ORAL)

 

          Abdul Halim-complainant (appellant) is in appeal against the order dated October 17^th, 2016 passed by District Consumer Disputes Redressal Forum, Yamuna Nagar (for short, ‘District Forum’) whereby the complaint was partly allowed.  IFFCO Tokio General Insurance Company Limited-opposite party (for short, ‘Insurance Company’) was directed to pay Rs.53,244/- to the complainant alongwith interest at the rate of 7% per annum from the date of filing of the complaint till its actual realization and Rs.5000/- as compensation on account of repair charges of the vehicle owned by the complainant.

2.      The complainant-appellant filed an application under Section 5 of the Limitation Act seeking condonation of 145 days delay in filing the appeal. The ground taken in paragraph No.3 of the application is as under:-

“3.     That the appellant applied for getting the certified copy of the order on October 28^th, 2016 which was made available to him on October 28^th, 2016.  Thereafter, the father of the appellant fell ill and the appellant has to look after him and could not pursue his case.  However, when the appellant contacted the counsel on April 20^th, 2017 for filing the appeal before this Hon’ble Court then the counsel informed the appellant that the limitation for filing the appeal is 30 days which is already over.”   

3.      Learned counsel for the complainant has contended that the delay caused in filing of the appeal is unintentional and it has occurred due to circumstances mentioned above.

4.      This Commission has considered the submission made on behalf of the complainant. The explanation for the delay caused in filing of the appeal is vague and far from being satisfactory in view of the fact that the complainant has not submitted any certificate from the Medical Officer to prove that his father fell ill.

5.      A 30 days period has been prescribed in Section 15 of the Consumer Protection Act, 1986 (for short ‘Act’), 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.

6.      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 was taken in the following authoritative pronouncements:-

7.      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.”

8.      In State of Nagaland versus Lipokao and others 2005(2) RCR (Criminal) 414 Hon’ble Supreme Court has observed that to get any appeal admitted or to get the delay condoned, it is condition precedent to first prove the “sufficient cause” for exercise of discretion by the Court in condoning the delay. Unless and until the sufficient cause is not proved, the delay cannot be condoned.

9.      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.”

10.        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.

11.    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 145 days.  Hence, the application for condonation of delay is dismissed.

12.    Even on merits, there is no force in this appeal.  The vehicle of the complainant met with an accident on June 29^th, 2012. The Insurance Company appointed the surveyor, who assessed the loss at Rs.53,244/-, which the District Forum has awarded. The complainant did not lead any evidence to prove that he suffered loss of Rs.2,00,000/- except the bald statement. The report of the surveyor cannot be brushed aside lightly without any material to the contradictory on record. Hon’ble Supreme Court in United India Insurance Co. Ltd., & Ors.  Vs. Roshan Lal Oil Mills Ltd. & Ors., (2000) 10 SCC 19, held that surveyor’s report is an important document and non-consideration of this important document results in serious miscarriage of justice.  

13.    In Sri Venkateswara Syndicate vs Oriental Insurance Company Ltd., and Another, (2009) 8 Supreme Court Cases 507, Hon’ble Supreme Court held as under:-

“There is no disputing the fact that the surveyor/ surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them”.

14.    In D.N.Badoni Vs. Oriental Insurance Co.Ltd, 1 (2012) CPJ 272 (NC), Hon’ble National Commission held that Surveyor’s report has significant evidentiary value unless, it is proved otherwise.

15.    Having taken into consideration the facts of the case and the report of the surveyor, this Commission is of the view that the amount paid to the complainant is just, reasonable and there is no scope for further payment.

16.    In view of the above, the appeal fails and is hereby dismissed on both the grounds, that is, limitation as well as on merits.

 

Announced 16.05.2018

(Balbir Singh) Judicial Member

(Nawab Singh) President

U.K