अपील सं0-१४१७/२०११
कोटक महिन्द्रा ओल्ड म्यूचुअल लाइफ इंश्योरेंस बनाम सन्तोष भट्टाचार्य
०५-१२-२०१४:-
अपील सुनवाई हेतु ली गयी। पुकार करवाये जाने पर उभय पक्ष की ओर से कोई उपस्थित नहीं है। पत्रावली का परिशीलन किया गया। यह अपील समय सीमा के उपरान्त दाखिल की गयी है।
निर्णय सुरक्षित।
(आलोक कुमार बोस) (जुगुल किशोर)
पीठासीन सदस्य सदस्य
प्रमोद कुमार,
वैय0सहा0 ग्रेड-१,
कोर्ट नं0-५.
RESERVED
State Consumer Disputes Redressal Commission
U.P., Lucknow.
Appeal No.1417 of 2011
Kotak Mahindra Old Mutual Life Insurance Ltd.,
Previously located at Sion East, Mumbai-440022
and 612-618, 6th Floor, Chokani Square, Sector 18,
Noida, U.P. ...Appellant.
Versus
Santosh Bhatacharya s/o Late Mr. Rajkumar Bhattacharya,
R/o Flat No.410 Highland Apartment, Vasundhara
Enclave, Delhi-110096 .…Respondent.
Present:-
1- Hon’ble Sri A.K. Bose, Presiding Member.
2- Hon’ble Sri Jugul Kishor, Member.
None appeared.
Date 18.12.2014
JUDGMENT
Sri A.K. Bose, Member- Aggrieved by the judgment and order dated 11.3.2011, passed by the Ld. DCDRF, Gautam Budh Nagar U.P. in complaint case No.432 of 2010, the appellant Kotak Mahindra Old Mutual Life Insurance Ltd. has preferred the instant appeal on 3.8.2011 under Section 15 of the Consumer Protection Act, 1986 (Act 68 of 1986) on the ground that the impugned judgment and order was passed without considering evidence available on record and is bad in the eye of law. Therefore, it has been prayed that the same be set aside otherwise, the appellant will suffer irreparable loss.
From perusal of the records, it transpires that the impugned judgment was delivered on 11.3.2011 and certified copy of the same was provided to the appellant
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on 10.5.2011. However, the appeal was preferred on 3.8.2011. Thus, it barred by limitation for about 52 days. An application, supported by affidavit has been moved for condonation of the delay has been moved. It has been contended that the impugned judgment was passed on 11.3.2011 without giving any notice to the appellant. Certified copy of the judgment was provided to the appellant on 10.5.2011 but in the meantime, the office was under process of shifting to a new place and, therefore, the matter was taken up after the shifting for preparation of file for the purpose of filing appeal. All these activities caused delay of about 52 days and, therefore, it has been prayed that the delay should be condoned in the light of explanation given hereinabove. We have given due consideration on the facts and circumstances narrated in the affidavit. We are now required to consider whether the explanation given by the appellant can be treated as sufficient cause for condonation of the delay or not. Section 15 of the Consumer Protection Act, 1986 provides that any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of 30 days from the date of the order, in such form an manner as may be prescribed; provided that the State Commission may entertained an appeal after expiry of the said period of 30 days, if it is satisfied that there was sufficient cause for not filing it within that period. In the instant, matter, the delay is of 52 days in filing the appeal and, therefore, we are required to see whether there is any sufficient cause for not filing the
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appeal within the statutory period of 30 days or not. In Mahindra & Mahindra Financial Services Ltd. Vs. Naresh Singh, I(2013) CPJ 407 (NC), where the delay was of 71 days only, it was held by the Hon'ble National Commission that:
"condonation cannot be a matter to routine and the petitioner is required to explain delay for each and every date after expiry of the period of limitation".
Similarly, in U.P. Avas Evam Vikas Parishad Vs. Brij Kishore Pandy, IV (2009) CPJ 217 (NC), the delay of 111 days was not condoned as day-to-day delay was not explained. In Delhi Development Authority Vs. V.P. Narayanan, IV (2011) CPJ 155 (NC), where the delay was of only 84 days, it was held that:
"this is enough to demonstrate that there was no reason for this delay, much less a sufficient cause to warrant its condonation".
In Anshul Agarwal Vs. NOIDA, IV(2011) CPJ 63 (SC), it has been observed by the Hon'ble Apex Court at para 7 that:
"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 petition filed against the orders of the Consumer Fora."
It may be observed here that even after a party cites
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sufficient cause for filing the appeal beyond the period of limitation, it cannot claim condonation as a matter of right. The proof of sufficient cause is a discretionary jurisdiction, vested in the Fora under Section 15 of the Act. If "sufficient cause" is not shown, nothing further is required to be done; and the application for condonation has to be dismissed on that ground alone. If, however, a sufficient cause is shown, then Forum has to enquire whether, in its discretion, it should condone the delay or not? This aspect of the matter naturally introduces the consideration of all relevant and trust-worthy facts, and it is at this stage that diligence of the party or its bona-fide may fall for consideration but the scope of enquiry, while exercising the discretionary power, after sufficient cause is shown, would naturally be limited only to such facts as the Forum may record as relevant and trust-worthy. In the instant matter, the delay is of 52 days in filing the appeal and it has been contended that the appeal could not be filed in time as in the meantime, the office was in the process of shifting. It has not given day-to-day explanation for the delay. There is nothing on record to indicate that the entire activities of the Company came to a stand still due to shifting. Besides this, the affidavit only indicates that shifting was done from 15.5.2011 to 22.5.2011. Even if this period is deducted from the period of delay then also the appeal is barred by limitation. The law assists only those who are honest in their dealings and are vigilant regarding their duties and responsibilities and not those who initially commit misfeasance in public office and then
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sleep over their rights and later on, claim mercy on one ground or the other. There is nothing on record to indicate that the appeal could not be filed in time in spite of best of efforts made by the appellant. In view of the aforesaid circumstances, we are of the considered view that the appellant Insurance Company has miserably failed to show any trust-worthy and cogent reason or submit sufficient cause for the inordinate delay of 52 days in filing the appeal. The object of expeditious adjudication of the consumer disputes will certainly get frustrated if such belated appeals are entertained.
Apart from this, from perusal of the judgment dated 11.3.2011, it transpires that that the appellant did not appear before the Forum concerned in spite of service of notice and, therefore, the case was ordered to proceed exparte on 3.12.2010 and after exparte hearing, the impugned judgment was delivered on 11.3.2011. Thus, it is clear that the appellant Company had opted for delaying tactics right from very initiation of the complaint case. Besides this, in the instant matter, the judgment was delivered on 11.3.2011 and the appellant obtained certified copy of the judgment on 10.5.2012 i.e. after two months and thereafter, filed the appeal. In the backdrop of the aforesaid conduct of the Company, it can not be considered that the delay was unintentional.
Apart from this, we have gone through the impugned judgment and order dated 11.3.2011. From perusal of the records, it transpires that the respondent/complaint had applied for insurance from the appellant Insurance
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Company on 8.4.2010 and had deposited a sum of Rs.17,500.00 towards the part payment of the annual premium of Rs.35,000.00. He was medically examined and thereafter, nothing was heard from the appellant Company. Accordingly, the respondent applied for refund of the money deposited by him. However, no action was taken by the appellant. Consequently, the respondent was forced to file complaint case no.432 of 2010 before the Forum below in which the appellant did not appear in spite of service of notice and accordingly, exparte proceedings were initiated against it and the Company was directed to refund the amount of Rs.17,500.00 alongwith 9% simple interest and Rs.1,000.00 as compensation apart from cost of litigation. Aggrieved by this judgment, the instant appeal has been filed.
There is no denial of the factum that a sum of Rs.17,500.00 was deposited by the respondent in favour of the appellant Company for life insurance proposal no.1978254.
It has been contended by the appellant that the aforesaid amount was refunded by the Company on 31.7.2010 and in support of its contention, a copy of letter dated 2.8.2010 has been annexed. We have given due consideration on this fact. There is nothing on record to indicate that the aforesaid amount was actually refunded to the respondent directly through Bank. The Company did not take this plea before the Forum below either. However, at the appellate stage, it has disclosed that the
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said amount was credited in the account of the respondent's account no.10569737805 of State Bank of India on 30.7.2011. We have given due consideration on this factum. If it is taken to be true, then the respondent is not entitled to receive the same again. The Executing Forum is directed to consider this factum, if and when execution is moved. With this observation the appeal is disposed of accordingly.
(A.K. Bose) (Jugul Kishor)
Presiding Member Member
Jafri PA-II
Court No.5
