Date of Decision: 06.08.2014

First Appeal No. FA-118/2011

(Arising out of the order dated 21.02.2011 passed by the Distt. Consumer Disputes Redressal Forum, (Central Maharana Partap Bus Terminal: Mezzanine Floor, Kashmere Gate, Delhi in Complaint Case No. 737/2008).

M.K. Bali

A2/240, Janakpuri

New Delhi-110058.

                                                                      ……Appellant

VERSUS

1. M/s National Insurance Co., Ltd.

    2/3, Central Market, Punjabi Bagh (W)

    New Delhi.

    Through its Branch Manager 

2. ICICI Bank Ltd.

    Block E-1, Videocon Tower

    Jhandewalan Extn. New Delhi-110055

    Through its Branch Manager.

3. M/s Gautam Motors Pvt. Ldt.

    B-25, Okhala Industrial Area, Phase-I,

    New Delhi-110020.

CORAM

S.A.Siddiqui, Member (Judicial)

S.C.Jain, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

S.A. Siddiqui, Member (Judicial)

1.       This is an appeal under section 15 of the Consumer Protection Act, 1986 against order dated 21.02.2011 passed by DCDRF (Central Kashmere Gate, Delhi) in Complaint Case No. 737/2008 whereby the complaint was dismissed. Relevant facts of the case are that complainant Sh. M.K. Bali approached the American Express Bank, New Delhi for sanction of loan of Rs. 3,00,000/- for purchase of new car Fiat Palio. Since the colour of the car was not of liking of the complainant, the order was cancelled. Thereafter, the complainant approached the ICICI Bank (OP-2) for the sanction of the loan for purchase of the car Maruti Zen LX. The loan was sanctioned and the car was purchased on 30.06.2002, vide invoice No. 60950. After purchase the vehicle was hypothecated to the bank. The bank fixed the EMI’s for Rs. 3.06,000/- whereas the complainant had approach the bank for sanction of loan of Rs. 3,00,000/- only. Due to voluntary increase in the loan amount the EMI was also increased. After some time the complainant decided to fore-close the account and paid full payment of loan on 11.12.2002 under protest. The bank was required to pay to the dealer M/s Gautam Motors Pvt. Ltd. only a sum of Rs. 2,99,000/- whereas the bank debited the account of the complainant with Rs. 3,06,000/- therefore the bank was liable to refund a sum of Rs. 7000/- along with interest.

2.            OP-1 M/s National Insurance Co. Ltd. has charged Rs. 13,940/- for Insurance for Fiat Palio car which was never purchased by the complainant. OP-1 retained the amount, after receiving the premium. This amount was not refunded despite repeated calls by the complainant. The dealer had paid Rs. 12,265 to get Maruti Zen LX insured. Thus, the Insurance Company has committed deficiency in service as it failed to refund a sum of Rs. 13,940/-. The Insurance Company was liable to refund this amount along with interest @ 18% per annum w.e.f. 02.05.2002.

3.            The complainant filed Consumer complaint and notice was issued to OPs. The Insurance Company (OP-2) filed reply. The Insurance Company maintained that complainant wrote letter dated 12.09.2002 whereby he informed the company that he was to purchase in Palio car but his loan application was rejected. He was unable to purchase the car. Hence, the cover note No. 24420 dated 26.04.2002 should be treated as cancelled and deposited the amount of Rs. 13,940/- should be refunded. The company however did not receive the letter dated 12.09.2002 and subsequently dated 08.03.2004. The complainant did not file cover note dated 26.04.2002 which was allegedly issued in favour of the complainant. The cover note and the receipts both were dated 26.04.2002. It was further maintained that if the complainant had any grievance, he should have filed the complaint within 2 years up to 26.04.2004. As per the case of the complaint, complainant first wrote letter to the company on 12.09.2002 for refund of the premium amount, paid on 26.04.2002. As per standard practice of Insurance Company and as per condition No. 6of the standard Insurance policy, the refund of the premium can be considered subject to rules. The complainant can ask only for 60% of the premium amount of Rs. 13,940/-. The Complainant be asked to deposit original cover note for cancellation; letter from the concerned banker that they have not financed any vehicle of the complainant; letter from the concerned dealer stating that no delivery of the vehicle was given to the complainant; original receipt of Rs. 13,940 and declaration cum undertaking cum indemnity bond on non-judicial paper of Rs. 10/- that the complainant has not purchased any vehicle for which the subject cover note was got issued.

4.       The OP-2 ICICI Bank in its reply denied any deficiency on its part. It was stated that a loan of Rs. 3,06,000/- was sanctioned to the complainant for purchase of the car which was repayable along with interest @ 11.53 p.a. in 36 EMIs of Rs. 9,999/- each from the  period of 07.08.2006 to 07.07.2005. The loan was disbursed on 18.07.2002 as per terms and conditions. The complainant signed the documents. OP-2 further denied that loan was foreclosed on 11.12.2002 under protest. As a matter of fact the loan was foreclosed as per request of the complainant. It was maintained that the complaint was filed after a laps of seven years of foreclosure of the loan and as such it was hopelessly time barred.

5.         The parties led evidence in support of their cases.

6.         The Ld. DCDRF considered the evidence on record and came to the conclusion that the complaint was time barred and relief claimed could not be granted. The complainant felt aggrieved and preferred this appeal, interalia, on the ground that the impugned order dated 21.02.2011 was erroneous and illigal having been based on surmises and conjectures. Appellant/Complainant paid insurance amount to National Insurance Company (OP-1) in anticipation of purchase of the car. The car was not purchased by the appellant. Hence, question of limitation does not arise at all and the Insurance Company (OP-1) was bound to refund the amount. Likewise ICICI Bank (OP-2) charged excess amount on 11.12.2002 in foreclosure and therefore was liable to reimburse. By not refunding the excess amount the bank has indulged into an unfair trade practice.

7.        OP-1/Respondent-1 and OP-2/Respondent-2 filed their reply. It was maintained that there was no deficiency of service committed on their part and the impugned order dated 21.02.2011 passed by Ld. District Forum was legally sound and was passed on available evidence on record. It does not suffer from any infirmity or illegality. The complaint was hopelessly time barred and it was righty dismissed.

8.         We have heard Sh. M.K. Bali, Appellant in person. Sh. A.K. Soni, Counsel for the Respondent-1 and Sh. Hemant Gupta, Counsel for the Respondent-2 were also heard. It was argued on behalf of Counsel for the Respondents that the complaint was highly time barred under section 24A of the Act and the Complainant/Appellant could not show sufficient cause for not filing the complaint within a period of 2 years, as provided under section 24A (1) of the Act. There was no ground for interference from this Commission and the impugned order 21.02.2011 was just and appropriated.

9.          On perusal of the record we find that Complainant/Appellant had filed a complaint before District Forum which was dismissed on 01.11.2007 with liberty to file appropriate proceedings before a competent Forum. Therefore, present complaint bearing No. 737/2008 was filed on 06.12.2008. The sanctioned loan was foreclosed on 11.02.2002. Insurance cover- note No. 24420 was issued by the Insurance Company on 26.04.2002. Refund of the Insurance amount/premium of Rs. 13,940/- was demanded with interest w.e.f. from 02.05.2002 and the cause of action arose when the OP-1/Respondent-1, National Insurance Company refused to refund the amount. Cause of action also arose on 11.12.2002 when the loan account was foreclosed. Thus, the cause of action in all the situations arose in the year 2002 section 24A (1). Clearly provides that a Consumer complaint can be filed within 2 years from the date cause of action arose. The cause of action against both the OPs/Respondents arose in the year 2002 and the complaint could have been filed in the year 2004 but it was actually filed in the year 2008 i.e. after laps of more than 4 years which is well beyond the period of limitation.

10.         Along with complaint, the complainant had moved an application for condonation of delay under section 24A (2) of the Act. The main ground for condonation of delay in the application was two fold. Firstly, that he was senior citizen of 70 years and secondly that he was suffering from cancer and was admitted in Rajiv Gandhi Cancer Institute, New Delhi on 06.05.2008 and was discharged on 08.05.2008. He was also admitted in Khanna Nursing Home, Janak Puri, New Delhi on 09.04.2008. But prior to this date, there was no document/evidence of his ailment. Section 24A sub section (2) provides that in case the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period, the complaint may be entertained after period specified in sub section (1). This means that for condoning the delay the Court/Forum must be satisfied that there was sufficient cause for not filing the complaint within time. The delay must be satisfactorily explained. However, in the present case there was an inordinate delay of more than 4 years in filing the complaint. The complainant remained hospitalized in Rajiv Gandhi Cancer Institute, New Delhi for a brief period from 06.05.2008 to 08.05.2008. In any case there was no evidence for complainant’s ailment prior to 09.04.2008. Therefore, complainant miserably failed to satisfy the Forum that there was sufficient cause for not filing the complaint within time. The delay in filing the complaint could not be satisfactorily explained. Therefore, the Ld. District Forum did not commit any error when it dismissed the complaint. The impugned order dated 21.02.2011 is well reasoned order, based on evidence on record and we are of the firm view that no interference is required from our side. The appeal is thus found without merit and deserves to be dismissed with costs. It is accordingly dismissed. The impugned order dated 21.02.2011 passed in complaint case No. 737/2008 Sh. M.K. Bali Vs M/s National Insurance Company Ltd & others is hereby confirm.

11.     Let a copy of the judgment be placed on the record of the complaint file. Copies of the judgment be provided to the parties free of costs as per rule. Thereafter, appeal file be consigned to record room.