Haryana

StateCommission

A/719/2018

HARINDER KUMAR JAIN - Complainant(s)

Versus

M/S CHOLAMANDALAM MS GENERAL INSURANCE CO. - Opp.Party(s)

RAJINDER SINGH RANA

13 May 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                                                 

                                                         First Appeal No.719 of 2018

                                                 Date of Institution: 01.06.2018

                                                               Date of Decision: 13.05.2022

 

Harinder Kumar Jain S/o Shital Kaur Jain, R/o Village & Post Office Fazilpur, District Sonepat.

…..Appellant

Versus

M/s Cholamandlam MS General Insurance Company Ltd. through its General Manager, SCO No.118-20, 3^rd Floor, Sector 34, Chandigarh-160022.

…..Respondent

CORAM:    S.P. Sood, Judicial  Member

                    Suresh Chander Kaushik, Member

                   

Present:-    Mr.Rajinder Singh Rana, Advocate for the appellant.

                   Mr.Puneet Jain , Advocate for the respondent.

 

                                                 ORDER

S P SOOD, JUDICIAL MEMBER:

          The present appeal No.719 of 2018 has been filed against the order dated 06.11.2017 of the District Consumer Disputes Redressal Forum, Sonepat (In short  now “District Commission”) in complaint case No.368 of 2017, which was partly allowed.

2.      There is a delay of 170 days in filing the appeal.  An appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  170 days wherein,  it is alleged that  appellant received the copy of order dated 06.11.2017 on 15.11.2017.  After receiving the copy of the order dated 06.11.2017 the appellant was under the impression that first opposite party (OP) deposited the  amount awarded by the Ld. District Commission, Sonepat then the appellant filed an appeal before this Commission. The OP handed over   the cheque for the amount awarded by the Ld. District Commission in the last week of March, 2018, the appellant presented the same before his bank and after incash the said cheque, the appellant contacted with the counsel at Chandigarh and handed over all the relevant documents.  The appellant engage the counsel and challenging the order dated 06.11.2017 before this Commission.  Thus, delay of 170 days in filing of the present appeal be condoned.

3.         Arguments Heard. File perused.

4.         Learned counsel for the appellant vehemently argued that as per facts mentioned above, it is clear that delay in filing appeal is not intentional.    Further argued that after receiving the copy of the order dated 06.11.2017 the appellant was under the impression that first respondent deposited the  amount awarded by the Ld. District Commission, Sonepat then the appellant filed an appeal before this Commission. The respondent handed over the cheque for the amount awarded by the Ld. District Commission in the last week of March, 2018, the appellant presented the same before his bank and after incash the said cheque, the appellant contacted his counsel at Chandigarh for challenging the order before this Hon’ble Commission. Due to the above said reasons, the appeal could not be filed, so the delay may be condoned. 

5.         This argument is not available.  A period of 30 days has been provided for filing an appeal against the order of the District Commission. 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.

6.                         The inordinate delay of 170 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.”

         

7.      Taking into consideration the pleas raised by appellant in the application for condonation of delay and settled principle of law, this Commission does not find it a fit case to condone delay of 170 days in filing of the appeal. Hence application filed for condonation of delay  in appeal No.719 of 2018 is dismissed.  

8.       The brief facts of the case are that complainant purchased insurance policy for his truck No.HR 69/8527 vide policy no.3380/003000/98/000/00 from Karnal Branch office of opposite party.  The policy was valid from 30.10.2008 to 29.10.2009 for Rs.14,24,000/-.  Unfortunately, on 10.01.2009 the truck met with an accident and suffered damages. Surveyor was appointed, who assessed the loss. He supplied all the documents to the surveyor and bills of repairs to the tune of Rs.2,20,000/- but nothing has been paid till date.  Thus there was deficiency in service on the part of the O.P.

9.      O.P. filed reply and admitted the issuance of policy and accident of the vehicle.   OP denied that bill of repair to the tune of Rs.2,20,000/- were supplied to the surveyor.  OP repeatedly asked him to furnish original RC, fitness certificate, final bills of repairs vide letters dated 26.02.2009, 07.03.2009, 30.03.2009 and 28.03.2009 but of no use.  The OP has rightly and legally closed the claim.  Thus there was no deficiency in service on the part of the O.P. 

10.    After hearing both the parties, the learned District Commission, Sonepat has partly allowed the complaint vide order dated 06.11.2017. Relevant para is reproduced below:-

“In our view, the ends of justice would be fully met if some directions are given  to the respondent to deduct 20% amount from Rs.204500/- and then to make the payment of the remaining amount to the complainant. Accordingly, we hereby direct the respondent to deduct 20% amount from Rs.204500/- and to make the payment of the balance amount to the complainant alongwith interest at the rate of 7.5% per annum from the date of filing of the present complaint till its realization.

 Since the complainant has been able to prove the deficiency in service on the part of the respondent, the respondent is also directed to compensate the complainant to the tune of Rs.2000/- (Rs.Two thousand) for rendering deficient services, harassment and under the head of litigation expenses.

With these observations, findings and directions, the present complaint stands allowed partly.”

11.    Feeling aggrieved therefrom, complainant-appellant has preferred this appeal.

12.    This argument have been advanced by Sh.R.S.Rana, learned counsel for the appellant as well as Sh.Puneet Jain, learned counsel for the respondent. With their kind assistance entire records including that of the District Commission and evidence led on behalf of  both the parties has also been properly perused and examined.

13.    Learned counsel for the appellant has vehemently argued that the complainant purchased the policy, which was effective from 30.10.2018 to 29.10.2019 for Rs.14,24,000/- . Further argued that on 10.01.2009, the vehicle met with an accident and suffered damages and he spent Rs.2,20,000/- on the repair of his vehicle, but, OP company  wrongly closed the claim.

14.    Learned counsel for the respondent-OP has vehemently argued that during the continuation of the policy, the vehicle met with an accident.  Surveyor was appointed, who assessed the loss of Rs.38426/-. The respondent rightly closed the claim of the complainant.

15.    This Commission does not concur with the submission made on behalf of the respondent. A perusal of Ex. R-6 shows that the vehicle was again inspected by the surveyor and during the re-inspection of vehicle sub frame’s RH long member was found to be repaired instead of replacement by full length. The load body was found repaired at lower rear hinge portion and onside walls. The claim of customer towards repairs cost were higher even than the cost of replacement of load body wall through fabrication with new materials like steel sheets and other hardware and labour cost etc.  The surveyor has failed to place on record assessment of loss. Why surveyor has not placed on record photographs of the damaged vehicle.  The complainant has already submitted the documents with the respondent insurance company.  Since complainant has spent Rs.2,04,500/- on the repair of his vehicle. The surveyor has intentionally assessed the loss of Rs.38,426.56.  Learned District Commission rightly partly allowed the complaint of the complainant.

16.    Resultantly, the contentions raised on behalf of the present appellant stands rejected as rendered no assistance and found to be untenable and the order passed by the learned District Commission does not suffer from any illegality or perversity and is well reasoned and accordingly stands maintained for all intents and purposes.  Hence, appeal  stands dismissed on both counts  delay as well as on merits.

13th  May, 2022       Suresh Chander Kaushik                        S. P. Sood                                                    Member                                                         Judicial Member                            

 

S.K

(Pvt. Secy.)