1.   Max New York Insurance Company Limited, having its Branch Office at S.C.O. No. 36-38, Sector 8-C,Chandigarh, through its Branch Manager.

2.Max New York Insurance Company Limited, having its Regd. Office at Max House, 1, Dr. Jha Marg, Okhla,New Delhi

3.Max New York Insurance Company Limited, having its Corporate Office at 11^thDLF Square, Jacaranda Marg,DLFCity, Phase-II, Gurgaon – 122002, through its Branch Manager.

……Appellants/Opposite Parties No.1 to, 3

V e r s u s

1.Ms. Meenu Kalia d/o Sh. B.M. Kalia, R/o H.No. 191/2, Sector 45-A, Chandigarh.

2.Sh. B.M. Kalia, R/o H.No. 191/2, Sector 45-A,Chandigarh.

....Respondents No.1 and 2/complainants

3.AXIS Bank Limited, SCO No. 916, Pocket No. 6, Chandigarh Shimla Road, Manimajra, Chandigarh, through its Branch Manager. (Service  dispensed with vide order dated 03.10.2013)

....Respondent No.3/Opposite Party No.4

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  

Argued by:Ms. Jaimini Tiwari, Advocate proxy for Sh. Ranjeesh Malhotra, Advocate for the appellants.

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

             Chandigarh

“The policy has obviously lapsed due to non-payment of the 2nd premium. The Complainants have averred that E.C.S has been stopped and they do not wish to continue with the policy. In the given situation, payment be made to the Complainants by the Opposite Parties No.1 to 3 in terms of the above guidelines, which to our mind should be Rs.99,000/- minus Rs.6000 = Rs.93,000/-. The complaint is allowed accordingly.

Opposite Parties No.1 to 3 shall also pay Rs.5,000/- to the Complainants as costs of litigation.

This order be complied with by the Opposite Parties No.1 to 3 within 45 days from the date of receipt of its certified copy, failing which the Opposite Parties No.1 to 3 would be liable to pay additional interest @ 9% p.a. on the decreed amount from the date of this order, till actual payment, besides the costs of litigation.”

2.           3.            

4.            shefurther statedthat since complainant no.1 had paid only one premium, in respect of the Policy, in question, the same did not acquire any surrender value/paid up value. It wasthat the Policy could have acquired surrender value/paid up value, only if complainant no.1, had paid three consecutive annual premiums.It was further stated that, as such, on the basis of letter dated 16.01.2012, the same (Policy) could not be cancelled.It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 to 3, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

5.            for purchase of an Insurance Policy, which was offered by Opposite Parties No.1 to 3. It was further stated that Opposite Party No.4 had acted as an Agent, between complainant No.1 and Opposite Parties No.1 to 3, and its role was limited to that extent only. It was denied, that an assurance was given to the complainants, regarding the benefits of Insurance Policy. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.4, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

6.           

7.            

8.           

9.           

10.         

11.        submitted “Life Gain Plus 20 Participating Plan”, which was issued, in favour of complainant no.1. She further submitted that, the date of delivery of the Policy documents was 29.01.2011. She further submitted that, alongwith the Policy documents, welcome letter was also sent to complainant no.1, wherein, it was, in clear-cut terms, stated that, in case, she was not satisfied with the terms and conditions of the Policy, she could return the same, during the free-look-period of 15 days, from the date of receipt of the same, and ask for cancellation thereof, but she did not do so, during the said period. She further submitted that the request of complainant no.1, was received after about one year, for cancellation/discontinuation of the Policy. She further submitted that, as per the terms and conditions of the Policy, no cancellation of the same could be made, after the expiry of free-look period. She further submitted that since complainant no.1 had paid only one premium, in respect of the Policy, in question, the same did not acquire any surrender value/paid up value. She further submitted that the Policy could have acquired surrender value/paid up value, only if complainant No.1, had paid three consecutive annual premiums.on 01.07.2010. She further submitted that the District Forum passed an illegal order, asking for the refund of premium paid to the tune of Rs.99,000/- minus (-) deductions of Rs.6,000/-, to the complainants, by relying upon the aforesaid Regulations. She further submitted that the order of the District Forum, being illegal, is liable to be set aside.

12.        

13.        in case, complainant No.1 was not satisfied with the terms and conditions of the Policy, she could return the same, during the free-look-period of 15 days, from the date of receipt of the same, and ask for cancellation thereof.

14.        the IRDA Regulations 2010, were not applicable to the same. The IRDA Regulations 2010, which came into force on 01.07.2010, were only applicable to the unit linked Policies. Reliance placed by the District Forum, on the aforesaid Regulations-2010, was completely and wholly misconceived. Had the District Forum, gone through the contents of the Policy, it would have certainly understood the nature thereof, and had not fallen into a grave error, in applying the provisions of the IRDA Regulations 2010, notified on 01.07.2010, to the present case. The District Forum, was, thus, wrong, in coming to the conclusion, that the complainants were entitled to, on the basis of Regulation 7 of the IRDA Regulations 2010. The findings of the District Forum, in this regard, being perverse, are reversed. 

15.         The surrender value payable was subject to the condition that the Policy was in full force, and there were no statutory or other restrictions to the contrary. From this Clause, it is evident, that the Policy could acquire cash/surrender value, only if it (Policy) had remained in full force for a period of three years, and the due premiums for the same (three years) had been paid. In the instant case, admittedly, only one premium, to the tune of Rs.99,000/-, was paid, in respect of the Policy, in question. Thereafter, no further premium was paid by complainant no.1, in respect of the Policy, in question. The Policy, therefore, did not remain, in force, for atleast three years. Under these circumstances, it did not acquire any cash/surrender value. Under these circumstances, the complainants were not entitled to any amount of cash/surrender value, as per the terms and conditions of the Policy.

16.            Opposite Parties No.1 to 3, were neither deficient, in rendering service, nor indulged into unfair trade practice. The findings of the District Forum, to the contrary, being perverse, are reversed.

17.        

18.        

19.        

20.        

21.        

Pronounced.

November 13, 2013.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

(DEV RAJ)

MEMBER

Rg

STATE COMMISSION

(First Appeal No.424 of 2013)

Argued by:Ms. Jaimini Tiwari, Advocate proxy for Sh. Ranjeesh Malhotra, Advocate for the applicants/appellants.

Dated the 13^th

ORDER

2.           

3.           

                  (i).    The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act.

                (ii).    Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.

               (iii).    Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that.

                (iv).        Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law”.

4.           N.Balakrishnan v. M.Krishnamurthy, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-

“It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.

10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."

The Court further observed in paragraphs 11, 12 and 13 which run thus:-

"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice videShakuntala Devi Jain v. Kuntal KumariState of W.B. v. Administrator, Howrah Municipality

13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "

5.           Delhi High Court, while condoning 52 days delay, in filing the appeal, observed as under:-

“No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day`s delay in filing the appeal. The later judgments of theApex CourtApex Court

6.                   The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. It is evident, from the record that delay, in this case, occurred due to the cumbersome procedure, which was required to be followed, to obtain approval for filing the appeal. Certified copy of the order impugned, after having been received on 12.07.2013, by the Counsel was, in the first instance, sent to the Local Office of the applicants/appellants, and, thereafter, to their Regional Office, at Gurgaon, for seeking approval of the Competent Authority, as to whether, it was a fit case, for filing an appeal or not. For taking decision by the Company, as to whether, an appeal against the order was to be filed or not, the file had to pass through many channels. No single person, could take the decision, at his own level independently, for filing an appeal. Under these circumstances, it could be held that the delay in filing the appeal, was neither intentional nor willful, but, on account of the reasons, explained in the application. There is, thus, sufficient cause, for condoning the delay. The application thus, deserves to be accepted.

7.           

8.   

9.   

10.        

11.        

12.       Certified copies of this order, be sent to the parties, free of cost.

Sd/-                                          

(DEV RAJ)

MEMBER

(JUSTICE SHAM SUNDER (RETD.))

PRESIDENT