Haryana

StateCommission

A/631/2015

BHARTI AXA GEN.INSURANCE CO.LTD. - Complainant(s)

Versus

JITENDER CHAWLA - Opp.Party(s)

INDERJIT SINGH

07 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                               

                                      First Appeal No.631 of 2015

                                      Date of Institution:14.07.2015

                                      Date of Decision: 07.08.2015

 

1.      Bharti Axa General Insurance Company Ltd., 1^st Floor, The Ferns Icon Survey No.28, Doddanakundi, Banglore-560032 through its General Manager.

 2.     Bharti Axa General Insurance Company Ltd., Altas Road Subhash Chowk Sonepat through its Agent/Authorized Person.

          Both through its authorized signatory through Mr. Tusharanshu Walia Available at Bharti Axa  General Insurance Company Ltd., SCO 350-352, First Floor, Sector-34, Chandigarh.

                                                …Appellants/opposite parties

 

Versus

 

Jitender Chawla S/o Ram Lal, Resident of House No.344, Ward No.15, Ashok Nagar Sonepat.

                                                …Respondent/complainant

 

CORAM:   Mr. R.K. Bishnoi, Judicial Member

                   Mr. Diwan Singh Chauhan, Member

 

Present:     Mr. Inderjit Singh, Advocate for the appellants.

 

                                       O R D E R

 

R.K. BISHNOI, JUDICIAL MEMBER

 

 

          The appellant has filed an application under section 5 of the Limitation Act, 1963 to condone the delay of 193 days on the ground that copy of impugned order dated 25.11.2014 was received on 03.12.2014. Thereafter, it was sent to its office for legal opinion which was received on 12.12.2014. In the meantime Legal Manager Mr. Navjot Kutal resigned and new Legal Manager could not join till the month of January, 2015, due to this reason file cannot be dealt with. Head office granted approval on 20.6.2015 to file the appeal. Its counsel had gone to Karala due to summer vacation and came back after 23.6.2015, thereafter, appeal was filed.

2.      Arguments heard. File perused.

3.      Learned counsel for the appellant argued that Legal Manager resigned in the month of December, 2014  and i.e. why file could not be dealt with. New Legal Manager joined in the month of January, 2015 and thereafter the file was processed.  In the month of June the counsel had gone on summer vacation i.e. why appeal was filed in July, 2015.

4.      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.  The inordinate delay of 193 days cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“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) 3 SCC 563 Post Master General & Ors. Vs. Living Media India Ltd. and Anr. Hon’ble Apex Court has not condoned delay in filing appeal even by Government department and observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.

    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”.

5.      Further it is well settled proposition of law that if the case of appellant is sound on merits then the delay can be condoned to decide the matter on merits. If we go through the facts of the case it will be clear that the appellants have no legs to stand.

6.      It was alleged by complainant that he purchased car bearing registration No.HR-14H-1991 from Kuldeep Sharma and the same was insured for the period of 30.01.2013 to 29.01.2014. IDV value was Rs.3,20,000/-. After obtaining NOC from Registration Authority, Jhajjar he applied to Registration Authority, Sonepat to transfer the vehicle in his name in the month of May, 2013. Initial chit issued in his favour which was valid from 30.5.2013 to 30.6.2013. He sent request to appellants/Ops vide letter dated 02.07.2013 to transfer insurance policy in his name. He also sent draft bearing No.686909 dated 01.07.2013 of Rs.50/- in favour of the Ops alongwith the chit. Unfortunately on 05.07.2013 the said vehicle met with an accident.  The car was totally damaged in the accident.  A formal Daily Diary (D.D.)  No.302/2013 dated 06.07.2013 was reported by the police. The damaged vehicle shifted to workshop at Star Motor Garage, Delhi road Sonepat. Intimation was given to the O.Ps. vide registered letter dated 07.07.2013. Ops failed to appoint any surveyor or loss assessor to inspect the damaged vehicle. So, he filed the complaint.

7.      It was alleged by the Ops that vehicle was transferred in the name of complainant on 24.5.2013 and he should have got the policy transferred within the mandatory period under the Motor Vehicles Act, 1986 (in short ‘MV Act’). Complainant do not inform them about the accident vide letter dated 07.07.2013. He never requested to transfer the policy in his name.

8.      After hearing both the parties learned District Forum Sonepat directed the Ops to pay Rs.1,15,000/-.  Main grouse of the O.Ps. is that insurance policy was not transferred in the name of complainant. Vide letter dated 02.07.2013 he sent request to transfer insurance policy in his name and also deposited requisite fee of Rs.50/- on 01.07.2013. If vehicle met with an accident thereafter, before the transfer of policy in his name, it does not mean that he is not entitled for compensation. The request made by him was in process. It is nowhere opined that even if a person has sent request, but the same is not acted upon, he should not ply the vehicle on road. When he sent letter and accident took place  when insurance policy was in force. The Ops cannot alleged that there was any lapse on his part. Further, if the Ops have not appointed any surveyor it does not mean that complainant cannot be awarded any compensation. An insured cannot be left at the mercy of insurance policy. IDV of vehicle was Rs.3,20,000/- and taking into consideration of the aspects, District Forum, Sonepat awarded Rs.1,50,000/- only.

9.      Taking into consideration all the facts and circumstances delay cannot be condoned. Resultantly, application filed for condonation of delay as well as appeal are dismissed in limine.

10.    Statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.

 

August 07^th,            Diwan Singh Chauhan      R.K. Bishnoi

2015                          Member                               Judicial Member

                                   Addl. Bench                                 Addl. Bench