Tripura

Unakoti

MA/1/2022

National Insurance Co. Ltd, Represented by - The Divisional Manager - Complainant(s)

Versus

Md. Nijam Uddin - Opp.Party(s)

S. Deb, J. Das

17 Mar 2023

ORDER

 BEFORE THE DISTRICT CONSUMER REDRESSAL COMMISSION

UNAKOTI DISTRICT: KAILASHAHAR

CASE NO. MA 01/2022

PRESENT

SHRI P. KUMAR

PRESIDENT

AND

SHRI S. SINHA, MEMBER

SMTI. M. DATTA, MEMBER

ORDER DATED THE 17^TH MARCH, 2023

 

            This is an application preferred by the petitioner, National Insurance Company Ltd., represented by the Divisional Manager, Agartala Division, Agartala under section 40 of the Consumer Protection Act, 2019 read with section 5 of the Limitation Act for condonation of delay of 172 days in filing the Review Petition against the judgment and order dated 21-12-2021 passed by this Commission in case No. CC 18/2007.

            This Commission passed judgment on 21-12-2021 in case No. CC 18/2007 in favour of the complainant of the case allowing him compensation of Rs.14,72,631/- as insured declared value with 6% interest from 10-09-2018 till payment, which was ordered to be paid by the OP National Insurance Company, Ltd., Agartala Branch within 02(two) months from the date of judgment. It is contended in the instant petition that much before the complaint was filed before this Commission vide disbursement voucher No.20300/84/16/0000002148 dated 03-02-2017 the OP paid Rs.9,50,000/- as full and final claim amount to TATA Motors Finance Ltd. since the vehicle of the complainant was hypothecated with the said company on the date of accident and as such, the OP-Insurance company filed the review petition bearing No. 1/2022 before this Commission for modification of the judgment in the light of previous disbursement and final settlement of claim and as review petition was filed after delay of 172 days, the instant petition for condonation is preferred.

            The reasons of delay as explained in the petition are that the judgment was passed on 21-12-2021 and period for review was up to 20-01-2022. After passing of the judgment learned counsel on record Advocate Sunirmal Deb conveyed the substance of the judgment and award to the branch office at Dharmanagar sometimes in the last week of December, 2021 where from the matter was communicated to Divisional Office at Agartala and it was instructed to procure certified copies of judgment and other exhibited documents. Prayer for certified copy was made on 22-02-2022 and certified copies were received on 02-03-2022. Thereafter the matter was communicate to TATA Motors Finance Limited over telephone and on 02-03-2022 official e-mail was also sent to TATA Motors Finance Company which sent the payment received confirmation on 04-03-2022. thereafter the case file was sent to Regional Office at Guwahati in the second week of March, 2022 where from the case file was sent to Head office at Kolkata on 27-04-2022 for final approval with their recommendation for assailing the judgment and to chalk out the next course of action. Thereafter Head office took legal opinion and sent its comments for preferring appeal before the Hon’ble State Commission and sent the case filed back to the Regional Office, Guwahati sometimes during the first week of May, 2022. During the second week of May, 2022 the case file was received by the Divisional office at Agartala after the same being routed to the Regional office with instruction to prefer appeal. On 22-05-2022 the case file was handed over to learned Sr. Advocate Sri Samrat Kar Bhowmik for his legal opinion and to advise the next course of action and accordingly, Sri Bhowmik advised the insurance company to prefer a review before this Commission subject to availability of the payment voucher and accordingly the payment voucher was searched in Agartala, Silchar and Andhra Pradesh office of the company and the same could only be traced sometime in the last week of May, 2022. Thereafter learned Advocate Sri Kar Bhowmik was out of station at Chennai in the month of June, 2022 for his cardiac checkup and wife’s eye operation and as such, after his return from Chennai under his instruction the review petition and condonation petition was drafted and made ready for filing and in this process there has been a delay of 172 days in filing the instant Review petition which is not at all deliberate and intentional and occurred only due to the reasons beyond the control of the petitioner as submitted above.

            Opposite party No.1, the complainant of the original CC case, submitted written objection stating that the review petition is not considerable as there is no provisions in Consumer Protection Act to review the final order passed by District Consumer Redressal Commission and thus, the petition is not maintainable. On the top of it, provisions of Limitation Act, specially section 5 of the Limitation Act is not applicable in Consumer Redressal Forum. Moreover, in the review petition some new facts have been added. The story of payment of Rs.9,50,000/- to the TATA Motors on 03-02-2017 which could not be traced out is not at all believable. The reasons for delay as explained by the petitioner in para No. A, B, C & G are not justified, rather it proves that there was gross negligence from the part of the petitioner and as such, the same is liable to be dismissed. In the condonation petition there is no mention of date when petition was drafted and the period of treatment of Sr. Advocate Mr. Samrat Kar Bhowmik is also not specific, rather it is vague and on vague reasons without proper explanation the condonation petition should not be allowed.

            OP No. 2, TATA Motors Ltd. also filed written objection stating that the review petition is not at all maintainable. In the main complaint petition (CC 18/2017) TATA Motors was not a party and as such, how it can be made party in the review petition is not supported by law. Review petition was submitted after 172 days of delay without proper explanation. The TATA Motors being financier was legally entitled to receive the insurance claim and there is no illegality in the same.

            During hearing learned counsel Mr. S. Deb appearing on behalf of the petitioner argued in the same way and reiterated the same facts as put down in the condonation petition and affirmed that delay of 172 days was properly explained. In support of his argument learned counsel Mr. Deb has referred the observation of the Hon’ble Supreme Court passed in (2012) SCCR 1 (Punam & others versus Harish Kr. & another) decided on 03-11-2021 wherein the Hon’ble Supreme Court observes as follows :-

            “Limitation Act, 1963-Section 5-Bar of          Limitation-Dismissal of application for           condonation of delay-all three ladies, who were          appellants, one of them was pursuing case and          she fell sick- she was not in a position to pursue     legal remedy with due diligence as a result of             which appeal was filed with a delay of 63 days-    delay of 63 days is not a delay for a long period         and there has been some explanation for delay-            High Court should have considered explanation        for delay alongwith facts of case, position of   parties, nature of litigation and period of delay-          unless delay is gross, explanation for same     should be liberally construed- appeal restored”.

            Placing reliance on the above judgment of the Hon’ble Supreme Court learned counsel finally urged this Commission to allow the condonation petition of the petitioner.

            Per contra, learned counsel Mr. M. Rahaman appearing on behalf of the opposite party No.1 submitted that in this case section 5 of the Limitation Act will not be applicable since Consumer Protection Act does not allow it. It is surprising that in the main complaint TATA Motors was not a party, but in the review and condonation petition TATA Motors has been made party, for which there is no legal basis. One of the reasons of condonation is the treatment and operation of learned counsel Mr. Samrat Kar Bhowmik and his wife, but no paper is submitted in this behalf which does not prove its authenticity. Learned counsel further submitted that in a case delay of 172 days is obviously inordinate and the delay can only be condoned if the same is justified by proper reasons, but in this case the petitioner failed to justify the delay, for which the petition is liable to be rejected.

            Gone through the petition and the written objections filed by the parities. In this case there occurs a delay of 172 days in preferring the review petition. In a petition for condonation, delay is required to be explained on day to day basis. It appears from the record that prayer for certified copy was submitted after one month of the passing of judgment. The OP could not discover the fact of payment of Rs.9,50,000/- during the long process before judgment and they could only discover the fact of payment after judgment. Had the OP been diligent, the fact of payment as alleged would have been discovered much earlier and particularity during the pendency of the main case. If the opposite party was in the mind of preferring appeal, they should have been prompt in preparation of their memo of appeal without wasting time in official process. After about 6 months the OP managed to file the review petition with condonation petition. The delay as explained by the OP is not properly explained backed by document.

            Section 5 of the Limitation Act pertains to condonation of delay wherein an extension may be granted by the courts if a party is able to satisfy that they had sufficient cause for not preferring an appeal or making an application within a period and the burden of proof is on the party seeking condonation and the petitioner has not been able to prove the delay. We find that the facts and circumstances of the case law referred by the petitioner in the aforesaid judgment of Hon’ble Supreme Court is not aptly matched with the case in hand. 

            In the case at hand the petitioner has not been able to prove the delay by sufficient cause. We find that the cause shown by the petitioner for not filing the petition within the prescribed period of limitation is wholly unsatisfactory. Hence, the application for condonation of delay is rejected.

            Hence, it is ordered that the delay of 172 days in preferring the review petition by the petitioner is not condoned and the petition for delay stands canceled.

                                       ANNOUNCED.