Delhi

StateCommission

A/352/2016

BHUWAN SHARMA - Complainant(s)

Versus

M/S IFFCO TOKIO GENERAL INSURANCE CO. LTD. - Opp.Party(s)

JASPREET S. RAI

06 Dec 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision:06.12.2018

 

First Appeal-352/2016

 (Arising out of the order dated 24.09.2015 passed in Complainant Case No. 246/2015 by the District Consumer Disputes Redressal Forum, South-1, Qutub Institutional Area, New Delhi)

 

Bhuwan Sharma,

S/o Sh. Rakesh Sharma,

R/o 121, 3^rd Floor,

CSP Apartments,

East of Kailash,

New Delhi-110019.

…..Appellant

 

Versus

Registered Office:

IFFCO Sadan C-1, District Centre,

Saket, New Delhi-110017.

 

Corporate Office:

M/s IFFCO TOKIO General Insurance Co. Ltd.,

4^th & 5^th Floor, IFFCO Tower,

Plot No.3, Sector 29,

Gurgaon-122001.

.….Respondent

 

 

CORAM

 

Justice Veena Birbal, President

 

1.      Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

1.                This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, the “Act”) wherein challenge is made to order dated 24.9.15 passed by the Consumer Disputes Redressal Forum, South-1, Qutub Institutional Area, New Delhi (in short, the “District Forum”) in CC No.246/15 whereby the aforesaid complaint has been dismissed in limine.

2.       Along with the aforesaid appeal, there is an application seeking condonation of delay of 265 days in filing the appeal.  The delay has been explained as under:

“That the appellant who runs a business of Tours and Travels and keeps travelling throughout the world to earn his livelihood.

That the appellant was travelling due to work since the order was passed on 24.9.15.

That the appellant was suffering from viral fever during the month of October after which his conditions worsened and doctor had strictly advised him for bed rest.

That the appellant after recovering from his illness was travelling within the country for business in the month November.

That in the month of December again the appellant fell sick as the job requires a lot of travelling and the appellant was not getting sufficient rest and due to which his body was not able to take the work load due to which the doctor advised him for complete bed rest.

That the appellant in January was called to his native placed by his parents after getting the information of their child’s deteriorating health were concerned and wanted him to take proper rest until he recovers properly.

That from 1^st - 6^th February the appellant was escorting a tour with an Indian group to Singapore and later from 18^th - 24^th the appellant was travelling to Switzerland and France due to his job.

That from 18^th - 22^nd March the appellant was in France escorting a tour with an Indian group and managing their Tour in the foreign land.

That from 18^th to 28^th April the appellant was in Australia for his free lancing job of tour Manager for different agents.

That from 28^th April to 10^th May the appellant was in New-Zealand along with a group of Indians for their tour.

The appellant is living all alone in Delhi and do not have his family’s support as family is living in Uttar Pradesh. The appellant was not able to consult his lawyer in time.”

3.       Aforesaid application is opposed by respondent/OP by filing reply wherein it is stated that the application for condonation of delay does not disclose any reasonable or sufficient cause for not filing the appeal within time.  It is stated that no cogent and convincing explanation has been given. The delay is not bonafide. The appellant/complainant has not acted in a diligent manner.  Appeal is highly belated as such the same is liable to be dismissed being barred by limitation.     

4.       The Counsel for parties are heard.

5.       It is well settled that "sufficient cause" for condoning the delay in each case is a question of fact.

6.       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.       Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that:

"There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence."

8.       In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court 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." 

9.    Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that:

"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."

10.   The decision of Anshul Aggarwal (Supra) has been reiterated in  Cicily Kallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) , wherein Hon'ble Supreme Court observed:

"4.  This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/ Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).

5.     In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.       

6.      Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay."

11.     The impugned order is dated 24.9.15 whereas the appeal is filed on 15.7.16.  As per appellant/complainant there is delay of 265 days.  The main ground seeking condonation of delay is that the appellant/complainant was suffering from viral fever during the month of October after which his condition worsned and doctor had strictly advised him for bed rest.  No documentary evidence or medical certificate is filed to substantiate the alleged ground of ailment/bed rest. 

12.     It is also alleged that in November 2015, appellant/complainant after recovery was travelling throughout the country for business.  No such proof in this regard is also filed.  Even if he was on travelling for business as is alleged, he could have contacted his lawyer on telephone for preparation of appeal.  No such steps are taken by appellant/complainant in this regard.  It is further alleged that again in December 2015, appellant/complainant had fallen sick.  No date has been mentioned that as to when he had fallen sick in the month of December and when he recovered.  No medical certificate is also filed.  Again as per allegations, appellant/complainant was conducting tour and remained abroad from 1^st of February to 10^th of May in different countries due to which delay is condoned.  No such proof of travelling/tour is also filed. The appellant/complainant had not been vigilant enough to pursue the matter. The delay is substantial.  In the absence of medical record/travelling documents, I do not find that sufficient cause has been shown by appellant/complainant in seeking condonation of delay of 265 days in filing the present appeal.

13.     There is a gross negligence, deliberate action and lack of bonafide on the part of appellant/complainant in not approaching this Commission within time. No sufficient ground has been made out for condoning the long delay.  In these circumstances, the application for condonation of delay is rejected.

14.     Even on merits also, appellant/complainant has no case.  The perusal of impugned order shows that appellant/complainant had filed a complaint before the District Forum seeking claim from respondent/OP for the theft of alleged car on 27.11.14.  As per appellant/complainant, the policy of insurance was renewed from 22.10.14 to 21.10.15 by paying a cheque of Rs.9,466/- towards premium drawn on ‘Yes Bank’ to respondent/OP.  The said cheque was dishonoured due to insufficient fund on 11.11.14.  The car is stolen on 27.11.14.  In these circumstances, Ld. District Forum has rightly observed that the car was not insured on the date of alleged theft i.e. on 27.11.14.  It has also come on record that appellant/complainant had not lodged any theft claim with respondent/OP.  There is no averment in this regard in the complaint also.

15.     In view of above discussion, appeal stands dismissed being barred by limitation. Even on merits, appellant/complainant has no case.

16.     Accordingly the appeal stands dismissed.

17.     A copy of this order as per statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum.  Thereafter the file be consigned to record room.

 

 

 

 (Justice Veena Birbal)

PRESIDENT

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