IA/12399/2024

1. This delay condonation application has been moved praying for condoning the delay in the filing of the appeal, which has been reported by the office as 67 days. Heard learned counsel for the appellant and Mr. Akhilesh Trivedi, learned counsel on behalf of the respondent/ complainant who has filed a caveat. We are satisfied that sufficient cause has been shown to condone the delay. The application is allowed and the appeal shall  be treated to be filed within time.

Appeal

2. Learned counsel for both the parties have agreed that the appeal be disposed of finally at the admission stage itself and they have advanced their respective submissions in respect thereto.
3. The impugned order has been passed recording the rejection of the written version applying the law in the case of  New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd.) and other connected matters, (2020) 5 SCC 757, and has further simultaneously proceeded to record that the State Commission has perused the pleadings, evidence and the documents on record. Learned counsel for the appellant has urged that these are inconsistent recordings, in the wake of the fact that the written version had already been accepted by the State Commission way back on 05.12.2017. It is therefore submitted that there was no reason to review the said order once the written version had already been accepted on record.
4. Learned counsel submits that even otherwise on merits the claim was not admissible and therefore the material that was on record including that filed along with the written version has not been perused in correct perspective. Hence, the impugned order cannot be sustained.
5. Be that as it may, on the first issue with regard to not entertain the written version, learned counsel for the respondent submits that there was no objection taken to the entertaining of the written version and he has not disputed the recording of the order dated 05.12.2017.
6. We are of the considered opinion that once the order dated 05.12.2017 had accepted the written version on record, then the same had become final in terms of Section 24 of the Consumer Protection Act, 1986. Admittedly, the said order was not questioned later on and the written version had been taken on record. Even otherwise once such an order has been passed, we do not find any justification for review of the said order which power the State Commission did not possess under the old Act of 1986. Consequently, the passing of order rejecting the written version does not appear to be in consonance with the law on the peculiar facts of the present case, where the written version had already been accepted way back in the year 2017.
7. Even otherwise if the State Commission was  proceeding to examine this issue, the same ought to have been examined in the light of the decision of the Apex Court in the case of Diamond Exports v. United India Insurance Co. Ltd., (2022) 4 SCC 169 , where in paragraph 24 it is held as under:

“24. A similar principle is inherent in the decision of the Constitution Bench in Hilli Multipurpose Cold Storage [New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage (P) Ltd., (2020) 5 SCC 757. However, given the conflicting decisions concerning the nature of such discretion, the Constitution Bench considered it appropriate to give prospective effect to the decision. It did not make a distinction between applications for condonation which had been decided and those which were pending on the date of the decision. Thus, the decision in Daddy's Builders [Daddy's Builders (P) Ltd. v. Manisha Bhargava, (2021) 3 SCC 669 would not affect applications that were pending or decided before 4-3-2020. Such applications for condonation would be entitled to the benefit of the position in Mampee Timbers & Hardwares [Reliance General Insurance Co. Ltd. v. Mampee Timbers & Hardwares (P) Ltd., (2021) 3 SCC 673 which directed Consumer Fora to render a decision on merits. We have expounded on the above principles in order to adopt a bright-line standard which obviates uncertainty on the legal position before the Consumer Fora and obviates further litigation.”

8. The aforesaid view has been recently once again affirmed by the Apex Court in the case of Dr. Vijay Dixit & Ors. vs. Pagadal Krishna Mohan & Ors., 2024 SCC OnLine SC 2279. In that case there was a delay of 285 days beyond 30 days as provided for filing the written version under the statute. This commission had closed the right of the opposite party on the prescription of the law which was assailed before the Apex Court. The said case was finally decided after taking notice of all the judgments on the said issue including that one quoted above and it was finally ruled as under:

“3. Turning to the issue at hand, the undisputed fact(s) of the present lis reveal that the Impugned Order was passed by the NCDRC on 22.07.2016 i.e., prior to 04.03.2020 the date of pronouncement of the decision in New India Assurance 2 (Supra) by the Constitution Bench. Accordingly, in this background it was contended by the Appellant(s) that on account of the prospective operation of the said decision, coupled with the observations of this Court in Diamond Exports (Supra), the instant appeal ought to be allowed with a direction to the NCDRC to render a decision on merits qua the underlying application seeking condonation of delay in filing the WS.

4. In the considered opinion of this Court, the categorical observation(s) of the Constitution Bench in New India Assurance 2 (Supra); coupled with the finding(s) of a Bench of 3 Judges of this Court in Diamond Exports (Supra) have authoritatively brought quietus to the underlying issue. The application(s) seeking condonation of delay preferred before the consumer fora prior to 04.03.2020 i.e., the date of pronouncement of New India Assurance 2 (Supra), must be decided on merits; and ought not to be summarily dismissed.

5. Accordingly, on an overall consideration, we are convinced that the Impugned Order be set aside; and the instant appeal be allowed. The NCDRC is directed to adjudicate the underlying application seeking condonation of delay in filing the WS in the Underlying Complaint on merits.”

9. This legal position also not having been examined by the State Commission therefore vitiates the impugned order on that count. However on the facts of the present case it does not require any further probe or adjudication as the order to accept the written version dated 05.12.2017 is final.
10. The submission therefore on behalf of the Insurance Company as contained in the written version and the evidence led in support thereof ought to have been taken into account and discussed before proceeding to dispose of the matter finally, does not appear to have been done. Therefore, the impugned order dated 06.05.2024 cannot be sustained.
11.  Learned counsel for the respondent urged that since the complaint itself was of the year 2012, an expeditious disposal may be directed.
12.  Accordingly we allow this appeal on this short ground and set aside the impugned order dated 06.05.2024 and remand the matter back to the State Commission for decision afresh on merits after entertaining the written version as also the evidence of the Insurance Company already on record by passing an appropriate order as expeditiously as possible, preferably within six months.
13. Learned counsel for both the parties may appear before the State Commission on 08.10.2024.