Uttarakhand

StateCommission

A/99/2021

PNB Metlife India Insurance Co. Ltd. - Complainant(s)

Versus

Mukesh Kumar - Opp.Party(s)

Mr. Vijay Pal Tiwari

06 Apr 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND

DEHRADUN

 

FIRST APPEAL NO. 99 / 2021

 

1.         PNB MetLife India Insurance Company Limited

            Registered Office at Brigade Seshamahal

5, Vani Vilas Road, Basavanagudi

Bengaluru – 560 004

 

2.         PNB MetLife India Insurance Company Limited

            Branch Office at 56, Rajpur Road

            Near Madhuban Hotel, Dehradun

            Both through Authorised Signatory Sh. Arijit Basu (aged 29 years’)

            Senior Manager, PNB MetLife India Insurance Company Limited

            Unit Nos. 701, 702 & 703, 7^th Floor, West Wing

            Raheja Towers, 26/27, M.G. Road

            Bengaluru – 560 001

…… Appellants / Opposite Party Nos. 1 & 2

 

Versus

 

1.         Sh. Mukesh Kumar S/o late Karam Chand

            R/o 86, Rajeev Gandhi Colony, Govind Garh

            Dehradun

…… Respondent No. 1 / Complainant

 

2.         Shri Mahant Indiresh Hospital

            Patel Nagar, Dehradun

 

3.         Sh. Abhishek Anand, Agent (Code – 6006623) through

Branch Office, PNB MetLife India Insurance Company Limited

            56, Rajpur Road, Near Madhuban Hotel

Dehradun 

…… Respondent Nos. 2 & 3 / Opposite Party Nos. 3 & 4

 

Sh. Vijay Pal Tiwari and Sh. Rajesh Kumar Devliyal, Learned Counsel for the Appellants

None for Respondents

 

Coram: Hon’ble Mr. Justice D.S. Tripathi, President

               Mr. Udai Singh Tolia,                         Member-II

                                   

Dated: 06/04/2023

ORDER

(Per: Justice D.S. Tripathi, President):

 

This appeal under Section 41 of the Consumer Protection Act, 2019 has been preferred against the impugned judgment and order dated 22.02.2023 passed by the District Consumer Disputes Redressal Commission, Dehradun (in short “The District Commission”) in consumer complaint No. 440 of 2013; Sh. Mukesh Kumar Vs. PNB MetLife India Insurance Company Limited and others, by which the consumer complaint was allowed and the appellants – opposite party Nos. 1 & 2 were directed to pay sum of Rs. 8,73,412/- to respondent No. 1 – complainant towards claim amount together with Rs. 20,000/- towards mental agony and Rs. 5,000/- towards costs, within a period of 30 days’, failing which the respondent No. 1 – complainant was also held entitled to interest @9% p.a. on the above amount from the date of filing of the consumer complaint till payment.  However, the respondent Nos. 2 & 3 – opposite party Nos. 3 & 4 were absolved of the liability to pay any amount to respondent No. 1 – complainant.

 

2.       We have heard learned counsel for the appellants on delay condonation application and perused the record.  None appeared on behalf of respondents, although respondent No. 1 – Sh. Mukesh Kumar (complainant) has earlier appeared in person before the Commission on 23.01.2023 and moved an adjournment application and service of notice upon respondent Nos. 2 & 3 has already been held to be sufficient vide order dated 09.03.2022 and 23.01.2023 respectively.

 

3.       According to office report dated 20.07.2021, the present appeal has been preferred by the appellants after a delay of 01 year 03 months’ and 11 days’.

 

4.       The delay condonation application has been moved by the appellants for condoning the delay in filing the appeal.  The delay in filing the appeal has been explained by the appellants in the accompanying affidavit to the delay condonation application, wherein it has been averred that on 08.04.2021, the appellant No. 1 received notice issued by the District Commission in execution application  No. 01 of 2021; Sh. Mukesh Kumar Vs. PNB MetLife India Insurance Company Limited.  Upon reading the said notice, the appellant No. 1 got surprised to know that consumer complaint No. 440 of 2013; Sh. Mukesh Kumar Vs. PNB MetLife India Insurance Company Limited and others, has been decided by the District Commission against the appellants vide judgment and order dated 22.02.2020, regarding which the appellants were having no knowledge prior to 08.04.2021.  Thereafter, the appellant No. 1 contacted its previous counsel at Dehradun Sh. Suresh Ji on telephone, who informed that he had sent the copy of the impugned judgment and order to Dehradun Branch of the insurance company, whereupon the appellant No. 1 contacted appellant No. 2 and sought information.  The appellant No. 2 inquired from its officials / employees, whereupon it transpired that on account of Covid-19 Pandemic, lockdown was imposed in the entire country in the month of March, 2020 and during the period of lockdown, all the mails received in the office, were put in some bed file by the official receiving the mails, on account of infection of Covid-19 Pandemic.  Thereafter, the appellant No. 2 tried to get the concerned mail searched from the file of consumer complaint No. 440 of 2013, but to no avail.  On 12.04.2021, the appellant No. 2 contacted Sh. Vijay Pal Tiwari, Advocate at Dehradun. 

 

5.       It is further stated that on account of holiday on 13.04.2021 and 14.04.2021, the said counsel inspected the file of consumer complaint No. 440 of 2013 in the office of District Commission on 15.04.2021 and advised the appellants to file appeal against the impugned judgment and order dated 22.02.2020 rendered in the aforesaid consumer complaint.  The certified copy of the impugned judgment and order was applied on 16.04.2021.  After receipt of certified copy of impugned judgment and order, after receipt of approval from the Head Office for filing appeal and completion of required formalities, the process of filing the appeal was initiated.  However, in the meanwhile, due to second wave of Covid-19 Pandemic, lockdown was also imposed in the country, with the result that the process of filing the appeal could not be completed.  Upon relaxation of restrictions in June, 2021, after collection of requisite documents and preparation of demand draft, the counsel – Sh. Vijay Pal Tiwari was contacted on 07.07.2021, who prepared the appeal and called the deponent in his office for signatures on 20.07.2021, where the deponent signed the documents.  There is no intentional delay in filing the appeal.

 

6.       From above, it is clear that the main ground taken by the appellants for delay in filing the appeal is that of negligence of their official / employee.  The appellants have stated that the knowledge regarding impugned judgment and order dated 22.02.2020, was received by them upon receipt of notice of execution application.  Here, it is pertinent to mention that the consumer complaint was duly contested by the appellants before the District Commission and the appellants were duly represented by their counsel.  In the affidavit filed in support of delay condonation application, the appellants have also admitted that their counsel before the District Commission, had told that he had already sent the copy of impugned judgment and order to Dehradun Branch of the insurance company.  The same appears to be correct, in view of the fact that the certified copy of impugned judgment and order filed by the appellants before the District Commission, is the 2^nd copy.  When the appellants had duly contested the consumer complaint by filing written statement, there was no occasion on the part of the appellants to have waited for receipt of notice of execution application, if they were to file an appeal against the impugned judgment and order.

 

7.       So far as negligence on the part of the official / employee is concerned, it is now well settled that on account of negligence of the counsel, the party can not get any benefit and any laches on the part of the counsel in prosecuting the matter, is to be treated as negligence / laches on the part of the concerned party itself.  The same principle can also be applied to the official / employee of the appellants and the appellants can not be allowed to take benefit of any wrong on the part of their official / employee.  In the case of Swiss International Air Lines Ltd. Vs. Jitender Mohan Bhasin and others reported in III (2012) CPJ 583 (NC), there was delay of 244 days’ in filing the revision petition.  It was held by Hon’ble National Commission that the petitioner has failed to offer convincing rationale of reasons in support of his application.  It was also held that the name of earlier counsel was not mentioned in the application and it was the duty cast on the petitioner itself to find out what has happened to his case and whether appeal has been filed or not.  It was observed that there was gross negligence, deliberate inaction and lack of bonafides are imputable to the petitioner and the delay was not condoned.  In the case of Vinod Kumar Patel Vs. Sambit Kumar Das reported in III (2012) CPJ 703 (NC), it has been held by Hon’ble National Commission that it is well settled that qui facit per alium facit per se.  Negligence of a litigant’s agent is negligence of the litigant himself and is not sufficient cause for condoning delay.

 

8.       Hon’ble National Commission in the case of HUDA Vs. Sunil Gupta reported in IV (2012) CPJ 360 (NC), has declined to condone the delay in filing the revision petition.  In the said case, the delay of 36 days’ in filing the revision petition was not condoned and it was held that the procedural delay is not the sufficient cause for condoning the delay.  Hon’ble National Commission in the case of Rajasthan Housing Board Vs. Vishnu Chand Sharma reported in IV (2012) CPJ 676 (NC), has held that the only explanation that file was moved from table to table to get permission to file petition is not sufficient and the delay of 169 days’ in filing the revision petition was not condoned.

 

9.       Hon’ble National Commission in the case of Jain International Sansthan Vs. Krish City, Bhiwadi and another reported in III (2016) CPJ 2 (NC), has declined to condone the delay of 168 days’ in filing the revision petition and has held that no lucid excuse is forthcoming from the petitioner to justify the delay in filing the revision petition.  It was held that the case is barred by time.  In the said decision, reliance was placed upon the decision of Hon’ble Apex Court given in Special Leave to Appeal (Civil) No. 37183 of 2013; Sanjay Sidgonda Patil Vs. Branch Manager, National Insurance Company Limited and another, decided on 17.12.2013 reported in 2013 (SLT Soft) 6, wherein Hon’ble Apex Court has confirmed the order of Hon’ble National Commission and refused to condone the delay of 13 days’.

 

10.     Learned counsel appearing on behalf of the appellants placed reliance upon the following judgments:

 

1. Budh Singh Vs. Additional Collector, Haridwar and others reported in 2006 (1) UC 134.
2. Judgment dated 02.05.2022 passed by Hon’ble High Court of Gujarat at Ahmedabad in R/Special Civil Application No. 6547 of 2020; Nimesh Dilipbhai Brahmbhatt Vs. Hitesh Jayantilal Patel.
3. Ram Nath Sao alias Ram Nath Sahu and others Vs. Gobardhan Sao and others reported in (2002) 3 SCC 195.
4. Civil Appeal No. 509 of 1978; Ramji Dass and others Vs. Mohan Singh, decided by Hon’ble Apex Court on 24.02.1978.

 

11.     In the case of Budh Singh (supra), it was held by Hon’ble High Court that liberal and justice oriented approach is necessary while hearing revision or appeal.  In the aforesaid judgment, it was also held that once the revision was treated to be bared by time, the merit of the case could not be looked into.  In the case in hand, there is no question of adopting liberal approach, taking into consideration the fact that the appellants slept over the matter for sufficient period of time and also that there was inaction / negligence on the part of appellants’ employee.  In the case of Nimesh Dilipbhai Brahmbhatt (supra), the delay in filing the written statement was condoned, holding that the valuable right of the petitioner should not be defeated by declining to condone the delay, which has occurred for the inaction on the part of their advocate.  In the instant case, the appellants had duly appeared before the District Commission and filed written statement.  The counsel so engaged by the appellants had also sent the certified copy of impugned judgment and order, but no timely action was taken by the appellants.  In the case of Ram Nath Sao alias Ram Nath Sahu and others (supra), Hon’ble Apex Court has held that the courts should not lose sight of the fact that by not taking steps within the time prescribed, a valuable right has accrued to the other party, which should not be lightly defeated by condoning delay in a routine manner.  Thus, the said decision goes against the appellants.  In the case of Ramji Dass and others (supra), the decree passed was        ex-parte one, which is not the position herein.   

 

12.     For the reasons aforesaid, we are of the considered opinion that the appellants have not been able to satisfactorily explain an inordinate delay in filing the appeal and there is no plausible explanation put forward by the appellants for making a case in their favour, so as to allow the delay condonation application and condone the delay in filing the appeal.  Consequently, the application for condonation of delay warrants dismissal.

 

13.     Application for condonation of delay is dismissed.  As a consequence thereof, the appeal is dismissed as not maintainable, being barred by limitation.  No order as to costs.         

 

14.     A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019.  The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.

 

 

(U.S. TOLIA)                            (JUSTICE D.S. TRIPATHI)

               Member-II                                                President

 

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