Haryana

StateCommission

A/1173/2016

SUDHIR MISHRA - Complainant(s)

Versus

NEW INDIA ASSURANCE CO. - Opp.Party(s)

VIRENDRA RANA

08 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                  

           

First Appeal    No  :      1173 of 2016

Date of Institution  :      06.12.2016  

                                                Date of Decision    :    08.02.2017 

  

Sudhir Mishra son of late Sh. Sharat Chander Mishra, resident of J-1275, Palam Vihar, Gurgaon, Tehsil and District Gurgaon.

                                      Appellant-Complainant

Versus

 

The New India Assurance Company Limited, Opposite Kamla Nehru Park, Gurudwara Road, Gurgaon through its Divisional Manager.

Respondent-Opposite Party

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. B.M. Bedi, Judicial Member.

                             Mr. Diwan Singh Chauhan, Member.                                                                                          

Present      :         Mr. Abhimanyu Singh, Advocate for the appellant.

 

                                                   O R D E R

 

NAWAB SINGH J.

 

          Sudhir Mishra-complainant (appellant) is in appeal against the order dated April 15^th, 2014 passed by District Consumer Disputes Redressal Forum, Gurgaon (for short, ‘District Forum’) whereby complaint was dismissed.

2.      The appellant filed an application under Section 5 of the Limitation Act seeking condonation of 928 days delay in filing the appeal. The ground taken in the application is as under:-

“2.     That wife of appellant Mrs. Chitra Mishra suffered with breast cancer and she was hospitalized at Artemis Hospital, Gurgaon and on the treatment of the wife of appellant about Rs.10,95,372/- had been spent but the wife of appellant not survived and died on 03.09.2008 due to which the appellant is in state of shock.

3.      That appellant is suffering from financial crises at the time of treatment of her wife (since deceased) and he does not aware about the limitation for filing the appellant before this Hon’ble Commission.  After consultation with the counsel, it came to the knowledge of the appellant that delay of 928 days have been occurred in filing the present appeal…...”

3.      Learned counsel for the complainant has contended that the delay caused in filing of the appeal is unintentional and it has occurred due to circumstances mentioned above.

4.      This Commission has considered the submission made on behalf of the complainant. The explanation for the delay caused in filing of the appeal is vague and far from being satisfactory.

5.      A 30 days period has been prescribed in Section 15 of the Consumer Protection Act, 1986 (for short ‘Act’), for filing appeal against the order of the District Forum. However, the proviso contained therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is ‘sufficient cause’ for not filing the appeal within the period prescribed. The expression ‘sufficient cause’ has not been defined in the Act, rightly so, because it would vary per facts and circumstances of each particular case.

6.      By now it is well settled that the delay cannot be condoned on the ground of equity and generosity. While proceeding with the prayer made it has to be kept in mind that expiration of the period of limitation prescribed gives a right to the adversary to treat the order as binding between the parties and this legal right provided by lapse of time should not be disturbed light heartedly. Similar view dovetails from the following authoritative pronouncements:-

7.      Hon’ble Supreme Court in Bikram Dass Versus Financial Commissioner and others, AIR 1977 Supreme Court 1221 has held as under:-

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his right must explain every day’s delay.”

8.      In State of Nagaland versus Lipokao and others 2005(2) RCR (Criminal) 414 Hon’ble Supreme Court has observed that to get any appeal admitted or to get the delay condoned, it is condition precedent to first prove the “sufficient cause” for exercise of discretion by the Court in condoning the delay. Unless and until the sufficient cause is not proved, the delay cannot be condoned.

9.      In Govt. of Rajasthan & Ors versus Janak Singh & anr, IV(2014) CPJ 36 (NC), Hon’ble National Commission relied upon the judgments of Hon’ble Apex Court as under:-

“8.      In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been 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.”

10.        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.”

11.    Hon’ble Supreme Court after exhaustively considering the case law on the aspect  of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as under;

“We have considered   the respective    submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same   time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”       

 12.   Hon’ble Apex Court in 2012(2) CPC 3 (SC)–Anshul Aggarwal  Vs. New Okhla Industrial Development Authority  observed as under:-

“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”.

Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 140 days. In such circumstances, application for condonation of delay is dismissed”. 

13.    In view of the above, this Commission has to bear in mind that the object of expeditious disposal of consumer dispute would get defeated if such like applications filed on frivolous grounds are allowed. The law comes to the assistance of the vigilant and not of the sleepy.

14.    The ground taken in the application as sufficient cause for condonation of delay would tantamount to putting premium on the parties own acts of negligence and non challance.  So, this Commission does not find it a fit case to condone the delay of 928 days.  Hence, the application for condonation of delay is dismissed.

15.    Even on merits, there is no force in the instant appeal. It is not in dispute that the complainant obtained Mediclaim Policy “Raksha” for himself as well as for his family members. Smt. Chitra Mishra, wife of complainant was a patient of breast cancer and was taking treatment at Artemis Hospital, Gurgaon.  She died on September 03^rd, 2008.  The complainant spent Rs.10,95,372/- on her treatment.  The New India Assurance Company Limited-opposite party paid Rs.2,34,802/- to the complainant and withheld the remaining amount of Rs.2,65,198/- on account of non production of original documents by the complainant.  The New India Assurance Company Limited sent several letters dated August 30^th, October 07^th & 30^th, and November 25^th, 2008 to the complainant to produce original documents but he never submitted.  Without any documentary evidence in support of the claim made by the complainant, it was not possible to pay the amount to the complainant by the Insurance Company.     

16.    In view of the above, the appeal fails and is hereby dismissed on both the grounds, that is, limitation as well as on merits.

 

Announced 08.02.2017

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President