Chandigarh

StateCommission

RP/27/2023

M/S THE ORIENTAL INSURANCE COMPANY LIMITED - Complainant(s)

Versus

MADHU GUPTA - Opp.Party(s)

ARJUN KUNDRA ADV

22 Jul 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[ADDITIONAL BENCH]

============

Revision Petition No.	:	RP/27/2023
Date  of  Institution	:	20/06/2023
Date   of   Decision	:	22/07/2023

 

 

 

 

 

[1]   M/s The Oriental Insurance Co. Limited, Divisional Office-2, S.C.O. 48-49, Sector 17-A, Chandigarh, through Branch Manager. 

 

[2]   M/s The Oriental Insurance Co. Ltd., Registered Office A-25/27, Asaf Ali Road, New Delhi-110002, through Managing Director.

 

     Now, both through its Authorized Signatory Mrs.Gurupdesh Kaur, Manager, The Oriental Insurance Co. Ltd., Regional Office, S.C.O. 109-111, Sector 17-D, Chandigarh.

 

…… Petitioners (OP Nos.1 & 2)

 

V E R S U S

 

[1]    Madhu Gupta w/o Sh. Shubhash.C.Gupta, Resident of 1071, Sector 10, Panchkula – 134109, Haryana.  

 

…… Respondent (Complainant)

 

[2]    M/s Medi Assist India TPA Pvt. Ltd., Tower D, 4^th Floor, I.B.C. Knowledge Park, 4/1 Bannerghatta Road, Bangalore – 560029, through its Managing Director.

 

[3]    Fortis Hospital, Sector 62, Phase-VIII, Mohali – 160062, through Managing Director.   

 

…… Respondents (OP Nos.3 & 4)

 

BEFORE:   MRS. PADMA PANDEY       PRESIDING MEMBER

          PREETINDER SINGH        MEMBER

 

 

PRESENT

:

Sh. Arjun Kundra, Advocate for the Petitioner.

 

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

This Revision Petition is filed against the order dated 24.04.2023 rendered by the District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (for brevity hereinafter to be referred as the “Ld.Lower Commission”) in Consumer Complaint bearing No.CC/341/2020, whereby the application filed by the Complainant/Respondent No.1 (Madhu Gupta) for seeking condonation of delay of 541 days in filing of the Consumer Complaint has been allowed. The Petitioners, among other prayers, have made following prayer: -

 

“To allow the present revision petition and quash and set-aside the impugned order dated 24.04.2023 passed by the Ld. District Consumer Disputes Redressal Commission-I, Chandigarh in Misc. Application No.40 of 2020 (in Consumer Complaint CC/341/2020) and further dismiss the Consumer Complaint being barred by limitation”.

 

2.     The only issue in this Revision Petition relates to allowing of the misc. application of the Complainant/ Respondent No.1 for condonation of delay of 541 days in filing the Consumer Complaint. The merits of this case, therefore, need not be discussed.

 

3.     Heard the Learned Counsel for the Petitioners and carefully gone through the record with utmost care and circumspection.  

 

4.     The core question that falls for consideration before us is as to whether the Ld. Lower Commission has rightly passed the impugned order by appreciating the entire material placed before it. 

 

5.     After giving our thoughtful consideration, to the material on record, we are of the considered opinion, that the instant Revision Petition is liable to be accepted for the reasons to be recorded hereinafter.

 

6.     Briefly stated, the facts of the case are that the medical claim of the Complainant/ Respondent No.1 was repudiated by the Petitioner (Insurance Company) on the ground of Exclusion 4.1 of the insurance policy and the Complainant/ Respondent No.1 alleged that she could not file the Consumer Complaint within the limitation period since she was pursing her complaint with the Insurance Regulatory and Development Authority till 20.03.2017. In the application, the Complainant/ Respondent No.1 has explained the delay in filing the complaint by firstly alleging that she had approached the National Legal Services Authority  on 09.01.2018 to provide legal aid for filing the case against Petitioner (Insurance Company), but they though provided legal aid for filing the case but had not provided contact number of the counsel to the Complainant/ Respondent No.1.  Thereafter she again filed online application and checked the tracking status of the said application and it was found that her request was not updated and ultimately, she had no other alternative but to pursue with her application for legal-aid. However, no contact number of the engaged Advocate was provided to her.  After much pursuance, vide letter dated 06.08.2019, the legal aid counsel Ms.Ankita Chaudhary Rathi was engaged by DLSA, Delhi to file the case of the Complaint/ Respondent No.1 but she had advised the Complaint/ Respondent No.1 to file the complaint with the District Consumer Commission, Chandigarh.  As the financial condition of the Complaint/ Respondent No.1 was becoming bottleneck for getting legal justice, she constantly tried to find a way out. In the meantime, the Complaint/ Respondent No.1 had developed blurred vision in her both eyes due to cataract for which she got operated right eye on 03.02.2020 and left eye on 08.06.2020 and ultimately, she was discharged on 08.06.2020.  Finally, in August 2020 after lockdown period of COVID 19 the Complaint/ Respondent No.1 approached the State Legal Services Authority, U.T., Chandigarh. In this manner the delay of 541 days in filing the complaint was not intentional and the same deserves to be condoned in the interest of justice.

 

7.     The revision Petitioners vehemently contested the misc. application filed by the Complainant/Respondent No.1 for condonation of delay before the Ld. Lower Commission by filing detailed reply thereto, inter alia, pleading that the application filed by the Complainant/ Respondent No.1 is misconceived, highly belated and the Complainant/Respondent No.1 has miserably failed to show sufficient cause, in as much as, delay of each day has not been explained. However, the Ld. Lower Commission vide impugned order allowed the application for condonation of delay and condoned the delay in filing the consumer complaint. Aggrieved by the said order, the revision Petitioners have filed the present revision petition.

 

8.     Sub-section (1) of Section 69 of the Consumer Protection Act, 2019 (which is equivalent to Section 24-A of the Consumer Protection Act, 1986) provides that, "The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen". It has further been provided that, "no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay". Although the Ld. Lower Commission took cognizance of the repudiation letter dated 08.03.2017 holding that the limitation for filing the consumer complaint for two years was upto 07.03.2019 and the Complaint was filed on 02.09.2020 & the applicant/complainant was required to explain the delay of 541 days in filing the present complaint, yet while passing the impugned order it failed to consider that no explanation had been given by the Complainant/Respondent No.1 for the period from 08.03.2017 till 09.01.2018 (308 days), from 21.08.2019 till 15.11.2019 (87 days), from 04.02.2020 till 07.06.2020 (125 days) and from 09.06.2020 till 04.08.2020 (57 days). The Ld. Lower Commission also failed to take note of the fact that the Complainant/Respondent No.1 had herself admitted that after repudiation of her claim, she pursued her Complaint with the IRDA till 20.03.2017, but no satisfactory action was taken by the said authority, however, no cogent, convincing & reliable piece of evidence has been attached by the Complainant/Respondent No.1 with her application for seeking condonation of delay. Further, it was the case of the Complainant/ Respondent No.1 that she approached the National Legal Services Authority (NLSA) on 09.01.2018 for seeking legal aid, but no contact of the counsel/ advocate was provided to her and neither the Complainant was contacted by the appointed counsel/ advocate. Furthermore, the Complainant/ Respondent No.1 alleged that two different counsels were appointed by the District Legal Services Authority on 27.03.2019, but no contact of the counsel was provided and neither the Complainant/ Respondent No.1 was contacted by the engaged counsel. It is pertinent to mention, the Complainant/ Respondent No.1 miserably failed to bring on record in the shape of any letter/e-mail/correspondence sent by her to the National Legal Services Authority or District Legal Services Authority substantiating the fact that she has not been provided contact numbers of the assigned advocates/counsels. Needless to mention here that even if the assertion of the Complainant/ Respondent No.1 of earlier approaching the National Legal Services Authority or District Legal Services Authority, as the case may be, taken at its face value, to our mind, in view of decision of Hon’ble Apex Court in “M/s Advance Scientific Equipment Ltd. & Anr. Vs. West Bengal Pharma & Photochemcial Development Corporation Ltd.” (Appeal (Civil) Nos. 17068-17069/2010, the act of the Complainant/ Respondent No.1 in approaching a wrong forum, would not entitle her to have the delay condoned. At the best, the period during which the Complainant/ Respondent No.1 had to undergo eye surgery and the period of COVID-19, qualifies for being condoned, but that remotely is of any help to the cause of the Complainant/ Respondent No.1, in as much as, the limitation for filing the complaint for two years was upto 07.03.2019.

 

9.     In crux, the Complainant/ Respondent No.1 has failed to prove any sufficient cause to condone such a huge delay of 541 days. In case of delay every single day needs to be explained with a sufficient cause, which the Complainant/ Respondent No.1 has not explained.  As such, it is not difficult to see that the principal and concluding ground taken by the Ld. Lower Commission for allowing the application of the Complainant/ Respondent No.1 was based on erroneous appreciation and flawed application of the law. 

 

10.     The Hon'ble Apex Court in the case of “State Bank of India Vs. B.S. Agricultural Industries (I)”; II (2009) CPJ 29 (SC), has held that, "it would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, 'shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action". Hon’ble Supreme Court in “V.N. Shrikhande vs. Anita Sena Fernandes”, Civil Appeal No.8983 of 2010 decided on 20.10.2010 held, a reading of the above noted provisions makes it clear that the District Forum, the State Commission and the National Commission are not bound to admit each and every complaint. Under Section 12(3), the District Forum is empowered to decide the issue of admissibility of the complaint. The District Forum can either allow the complaint to be proceeded with, which implies that the complaint is admitted or reject the same. Similar power is vested with the State Commission under Section 18 and the National Commission under Section 22. If the concerned forum is prima facie satisfied that the complainant is a `consumer' as defined in Section 2(d) and there is a `defect', as defined in Section 2(f) in relation to any goods or there is `deficiency in service' as defined in Section 2(g) read with Section 2(o) and the complaint has been filed within the prescribed period of limitation then it can direct that the complaint may be proceeded with. On the other hand, if the concerned forum is satisfied that the complaint does not disclose any grievance which can be redressed under the Act then it can reject the complaint at the threshold after recording reasons for doing so. Section 24A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. In other words, the consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A(2), the consumer forums will have no option but to dismiss the same.”

 

11.     The Hon'ble National Commission in the case of “Ketan Consultants Pvt. Ltd. Vs. Suresh Dattaraya Namjoshi”; III (2012) CPJ 60 (NC), has held that a person who seeks exercise of judicial discretion of Court or Tribunal in his favour in the matter of condonation of delay, must explain to the satisfaction of Court/Tribunal/Forum that he had "sufficient cause" which prevented him from filing the proceedings within prescribed period of limitation. He must explain each day's delay and show that delay was not intentional or willful which will entitle him to seek judicial discretion in his favour. The expression "sufficient cause" has been held to mean a cause which is beyond the control of the party invoking it. The Hon'ble National Commission in the case of “Additional Director, Central Government Health Scheme and others Vs. S.S. Ramachandran”; 2011 (2) CPR 33 (NC), has held that, "each day's delay beyond prescribed period of limitation has to be explained satisfactorily by concerned applicant and in the absence of any dates, we are not at all convinced about the explanation put forth by the petitioner in support of the condonation application". In the case in hand, the complainant has miserably failed to explain the delay of each & every date after the expiry of period of limitation. The Ld. Lower Commission did not consider the legal aspects of the case in proper manner and recorded an incorrect finding by allowing the application for condonation of delay, thereby condoning the delay in filing the consumer complaint. The Ld. Lower Commission has acted in exercise of its jurisdiction illegally and with material irregularity.

 

12.     We note that the Ld. Lower Commission has remained content with making only a cursory examination of facts and has not made a meaningful speaking appraisal of evidence as per the normal wont which it ought to have done. A legal right is vested with the revision petitioners by efflux of time, which can only be taken away on proof of sufficient ground. The Consumer Protection Act is a special Act providing special period of limitation. The very purpose of the Act would be defeated in case the delay is condoned without any sufficient ground, as has been done by the Ld. Lower Commission. Therefore, the order impugned passed by the Ld. Lower Commission is liable to be set aside and the revision petition deserves to be allowed.

 

13.     Sequel to the above discussion, the revision petition is allowed. The impugned Order dated 24.04.2023 of the Ld. Lower Commission is set aside and the matter is remitted to the Ld. Lower Commission to proceed further strictly as per the law.

 

14.     The parties are directed to appear before the Ld. Lower Commission on 01.08.2023 at 10:30 A.M. for further proceedings.

 

15.     Complete record of complaint file be sent back to the Ld. Lower Commission alongwith certified copy of this order, so as to reach there well before the date fixed.

 

16.     The pending application(s), if any, stand disposed off accordingly.

 

17.     Certified copies of this order be sent to the parties free of charge.

 

18.     The file be consigned to Record Room, after completion.

Pronounced

22^nd July, 2023

              Sd/-

                                  (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”