This revision petition has been filed by petitioner Oriental Insurance Company Ltd. against the order dated 02.06.2010 passed by the State Consumer Disputes Redressal Commission, Delhi, (in short ‘the State Commission’) in First Appeal No.245 of 2007.

2.      Brief facts of the case are that the respondent owned a building in Shalimar Bagh, New Delhi and had obtained householder’s insurance policy from the petitioner Insurance Company which covered insurance for the building of Class A, construction for a sum of Rs.15,00,000/- covering risk against fire and allied perils to the tune of Rs.3,73,000/-; for burglary/house breaking Rs.3,73,000/-; for other risk Rs.2,11,000/-; for breakdown of domestic appliances for Rs.1,10,000/-; for T.V. set/video Rs.15,000/- and for baggage Rs.10,000/-.  On 21.04.2005  allegedly fire broke out in the aforesaid house of the respondent.  The respondent lodged FIR of the incident at the Police Station, Shalimar Bagh on the same date.  On 22.04.2005, two surveyors namely Sh. Rajesh Saini and V.K. Gulati inspected the site to conduct survey.  On 30.4.2006, the respondent filed the claim with details of entire loss, estimate of repairs and renovation of the said premises for an amount of Rs.10,90,060/-.  On 08.08.2005, the surveyors submitted their survey report and estimated the loss to an amount of Rs.3,81,828/-.  On 28.02.2006, as per the surveyor’s report the petitioner company paid a sum of Rs.3,81,828/-  to the respondent as the claim amount vide cheque No.067357.  On 11.3.2006, the respondent issued receipt for the aforesaid amount paid by the insurance company without any protest as full and final settlement of the claim.  On 07.04.2006 allegedly the respondent herein served a notice upon the petitioner insurance company to pay a balance amount of Rs.7,08,232/- along with compensation of Rs.10,000/- for harassment.  On 01.06.2006, a suitable reply was given by G.L.Chawla & Associates on behalf of the petitioner to the notice sent by the claimant/respondent through their counsel Sh. Venanclo D’Costa. Thereafter respondent filed the complaint before the District Consumer Disputes Redressal Forum, North Tiz Hazari, Delhi (in short the District Forum’) against the petitioner Insurance Company praying that the Insurance Company be directed to pay the respondent Rs.7,08,232/- along with the interest @ 18% including compensation and costs.  On 30.10.2006, learned District Forum passed an award for balance amount i.e. for Rs.7,08,232/- along with Rs.10,000/- for mental agony and Rs.2,000/- as costs.  Aggrieved by the aforesaid order the petitioner company filed an appeal in the State Commission against the order passed by the District Forum.     On 02.06.2010, State Commission passed an award reducing the amount of compensation awarded by the District Forum and held that as per the survey report the loss has been assessed for Rs.6,12,804/-.  The company has already paid Rs.3,81,828/-, therefore, the petitioner Insurance Company was directed to pay a balance amount of Rs.2,31,076/-.

3.      Hence the present revision petition.

4.      Heard the learned counsel for the parties and perused the record.

5.      The learned counsel for the petitioner stated that the State Commission has accepted the report of the surveyor but has modified the same on its own.  The State Commission has not considered the depreciation taken into account by the surveyor and the under insurance.  The surveyor has considered depreciation ranging from 10% to 50%.  The learned counsel stated that the surveyor has rightly considered 50% depreciation for household items like kitchen utensils and clothes and garments.  If these items are sold in the market they will not fetch more than 50% of their value.  On crockery only 20% depreciation has been allowed.  The complainant bought the flat premises in 1981 having the built up area of 1076 square feet and in 2001 the building fittings floor and kitchen areas were renovated as per requirements.  The surveyor has accordingly allowed depreciation for assessing loss to the building due to fire.  The application of depreciation and under insurance is an accepted principle and practice used by surveyors for assessing the loss.  The reports of the surveyors are to be considered for settlement of insurance claims until and unless there are cogent reasons for not accepting the survey report.  The State Commission has not given any cogent reasons for not accepting the deduction of depreciation and under insurance as considered by the surveyor.  The order of the State Commission is arbitrary and without any legal basis.  It was also submitted by the learned counsel for the petitioner that there has been a delay of about 40 days in filing the present revision petition, it was requested to condone the delay on the grounds mentioned in the application for condonation of delay.

6.      On the other hand learned counsel for the respondent/complainant stated that first of all the issue of delay in filing the present revision petition needs to be decided.  It is mentioned in the application for condonation of delay that the learned counsel was unwell for some time and therefore, the revision petition could not be filed in time.  The learned counsel stated that the learned counsel for the petitioner Mr. Manish Pratap Singh was present during this period in other benches of this Commission.  In support of her assertion two orders dated 17^th September, 2010 in revision petition No.3050 of 2010 and dated 23^rd September, 2010 passed in revision petition No.2814 of 2010 have been placed on record where the presence of Mr. Manish Pratap Singh as learned counsel for the petitioner has been shown.  It was stated by the learned counsel for the respondent that wrong facts have been mentioned in the application for condonation of delay and therefore, application for condonation of delay deserves outright dismissal.

7.      Coming to the merits of the case the learned counsel for the respondent stated that the surveyor has considered 50% depreciation on various new items of clothes and kitchen ware which is not justified.  The surveyor has not allowed any amount for the loss of gold and silver jewellery which was kept in a box but was totally burnt in the fire.  The surveyor has not allowed the loss of jewellery stating that no gold or silver was found in any form in the ashes or otherwise.  The learned counsel asserted that in a heap of ash it was not possible to locate any small pieces of burnt jewellery or melted gold or silver.  The State Commission has rightly allowed the total loss assessed by the surveyor as surveyor has applied unreasonable rate of depreciation for different items. It was requested to dismiss the revision petition on account of being barred by limitation as well as on merits.

8.      I have carefully considered the arguments advanced by both the sides and have examined the material on record.  First of all it is seen that the revision petition has been filed with the delay of 40 days.  Application for condonation of delay is signed by Mr. Manish Pratap  Singh, Advocate.  Apart from other things it is stated in the application for condonation of delay that the learned counsel was suffering from dengue from 15.9.2010 till 3^rd October, 2010.  The learned counsel for the respondent has objected to this fact by filing two orders of this Commission where the presence of Mr. Manish Pratap Singh as Advocate is mentioned.  These orders are dated 17^th September, 2010 and 23^rd September, 2010 passed in RP No.3050 of 2010 and RP No.2814 of 2010.  Clearly the facts given in the application for condonation of delay are not correct and application for condonation of delay can be dismissed only on this ground.  However, it is an accepted principle of law that provision of limitation is not to destroy the right of the parties to genuinely prosecute their case. Hon’ble Supreme Court in Manoharan Vs. Sivarajan & Ors, Civil Appeal No.10581 of 2013, decided on 25.11.2013 (SC).  It has been held that:

“9. In the case of State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., it was held that power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing the cases on merit. The relevant paragraphs of the case read as under:

“11. Power to condone the delay in approaching the Court has been conferred upon the Courts to enable    them to do substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987)ILLJ 500 SC held that the expression 'sufficient cause' employed by the legislature in the Limitation Act is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life purpose for the existence of the institution of Courts. It was further observed that a liberal approach is adopted on principle as it is realised that:

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately,  or  on  account  of  culpable  negligence,  or  on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”

9.      Similarly, Hon’ble Supreme Court in the matter of Esha Bhattacharjee vs. Managing Committee of RaghunathpurNafar Academy and Others.,  (2013) 12 SCC 649,  has laid down:-    

21.        “From the aforesaid authorities (case laws referred) the principles that can broadly be culled out are:

21.1. (i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2.  (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4  (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5  (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.6.   (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7.   (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8   (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9  (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

21.11.  (xi)  It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

22.  To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

22.4. (d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.”

10.  The Hon’ble Supreme Court in another case N. Balakrishnan Vs. M.Krishnamurthy, (1998) Supp. 1 SCR 403, has laid down the following:-

“11. Rules of limitation are not meant to destroy the right 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. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right 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 vide Shakuntala Devi Jain V. KuntalKumari, MANU/SC/0335/1968: [AIR 1969 SCR1006 and State of West Bengal Vs. The Administrator, Howrah Municipality, MANU/SC/0534/1971: [1972]2SCR874a.

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 delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.”

11.    It is also an accepted principle that for lapse on the part of the counsel the party should not suffer.  Keeping this in view and relying upon the above mentioned judgements as well as looking at the fact that the delay is only of 40 days I deem it appropriate to condone the delay in the interest of justice at a cost of Rs.1,00,000/- (rupees one lakh) to be paid by the petitioner to the respondent complainant.

12.    Now coming to the merits of the case it is seen that State Commission has disallowed the depreciation considered by the surveyor while assessing the loss without any reasons.  Though the proceedings under the Consumer Protection Act, 1986 are summary in nature but decision of a consumer forum has to be supported by some legal principle or existing practices or some cogent reasoning.  The State Commission has only observed the following:-

“13.   Thus, if we believe the surveyors’ report as is also relied upon by the appellants themselves, the respondent/complainant is entitled to sum of Rs.6,12,804/- minus Rs.3,81,828/- = Rs.2,31,076/- ( i.e. Rs.Two lakhs thirty one thousand seventy six).  To this extent the impugned order dated 03-10-2006 is liable to be modified.

14.    Hence allowing the appeal partly, we direct the appellant/OP to pay to the respondent/complainant a sum of Rs.2,31,076/- as against the Insurance Claim under the policy along with compensation of Rs.10,000/- and Rs.2,000/- as cost of litigation as already awarded by the District Forum.  If the above amounts are not paid within thirty (30) days of the receipt of the order, appellant shall be liable to pay interest @9% per annum on the Insurance amount allowed i.e. Rs.2,31,076/- only vide this order.”

13.    The above observation of the State Commission does not give any reasoning for disregarding the report of the surveyor in respect of the depreciation considered by the surveyor.  In fact, I agree with the argument of the learned counsel for the petitioner that the kitchen items and the clothes and garments could not fetch more than 50% of their price if they are sold in the market because they are seen as used and second hand items.  It is not that surveyor has applied 50% depreciation for all the items.  In fact depreciation ranges from 20% to 50% for different items.  I have gone through the report of the surveyor and I do not find any excessive depreciation applied for any of the items.  The learned counsel for the respondent has also not indicated any specific items where wrong depreciation has been applied.  The learned counsel for the respondent complainant has only mentioned about the non-inclusion of the gold and silver jewellery items by the surveyor in his assessment of the loss.  Even the State Commission has not allowed any amount for the loss of gold and silver jewellery lost in the fire.  The respondent complainant has not challenged the order of the State Commission and hence the point in respect of loss of gold and silver jewellery cannot be raised at this stage.  The surveyors are appointed under the provisions of the Insurance Act, 1938 and their reports are important documents which are taken into consideration for settlement of the Insurance claims.  The reports cannot be brushed aside without any cogent reasons.  Hon’ble Supreme Court in its judgment [“Sri Venkateswara Syndicate vs. Oriental Insurance Company Limited & Anr”, (2009) 8 SCC 507], has observed that:

“31. The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by insured, a loss adjuster, popularly known as loss surveyor, is deputed who assesses the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured.

32. There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. We also add, that, under this Section the insurance company cannot go on appointing surveyors one after another so as to get a tailor-made report to the satisfaction of the officer concerned of the insurance company; if for any reason, the report of the surveyors is not acceptable, the insurer has to give valid reason for not accepting the report.”

14.    The State Commission has not given any reasons for discarding the report of the surveyor so far as it relates to application of depreciation for assessment of loss of different items.  In the light of the above observation of the Hon’ble Supreme Court in Sri Venkateswara Syndicate vs. Oriental Insurance Company Limited & Anr. (supra), the order of the State Commission cannot be sustained.  It is seen that even the District Forum has totally disregarded the report of the surveyor and that is why the State Commission partly accepted the appeal of the petitioner filed against the order of the District Forum but the State Commission also erred in not completely appreciating the report of the surveyor hence the District Forum order as well as State Commission order, both are not sustainable.

15.    Based on the above discussion, the orders of the fora below, i.e. order dated 02.06.2010 of the State Commission and order dated 30.10.2006 of the District Forum are set aside at a cost of Rs.1,00,000/-, (rupees one lakhs only) which is payable to the respondent complainant by the petitioner Insurance Company on account of condonation of delay in filing the present revision petition.  The cost of Rs.1,00,000/- (rupees one lakhs only) be paid to the respondent complainant by the petitioner Insurance Company within a period of 30 days from the date of this order failing which it will attract an interest of 9% per annum from the date of this order till actual payment.  The Revision Petition is accordingly disposed off.