1.Bharti AXA Life Insurance Company Limited, SCO No.234, Sector 34-A, Chandigarh.

2.Managing Director, Bharti AXA Life Insurance Co. Limited, Regd. Office at Unit 601 & 602, 6^th

……Appellants/Opposite Parties

V e r s u s

Shashi Khanna, r/o H.No.435, 2^nd

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  

Argued by:

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

“ To our mind, the policies stand discontinued as the Complainant has not paid any further premium. In terms of Clause 4 and 5 as well as 6(1) the fund value of the policies on the date of discontinuance has to be communicated to the Complainant by the Opposite Parties as per the above guidelines to grant her the liberty to exercise her option accordingly. The Opposite Parties have not done this, which in our opinion tantamounts to deficiency in service.

 We accordingly, allow this complaint and direct the Opposite Parties to inform the Complainant about the above guidelines, so that the Complainant can exercise her option for the two policies in terms of the same. Opposite Parties are directed to pay a consolidated amount of Rs.20,000/- to the Complainant towards compensation and costs of litigation. 

This order be complied with by the Opposite Parties within 30 days from the date of receipt of its certified copy.”

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5.           The Policy was issued on 31.07.2012, whereas, inception date thereof was 28.07.2012. Another Policy, on the basis of the proposal form, submitted by the complainant, bearing No. 500-9155390, annual premium whereof was Rs.81,000/-, was issued, in favour of the complainant. The premium payment term was 15 years, whereas, the Policy benefit period/term was 30 years. The death benefit was to the tune of Rs.12,99,355/-. It was further stated that alongwith the Policy documents, welcome letters were also sent, wherein, an option was given to the complainant, that,in case, she was not satisfied with the terms and conditions of the Policy, she could return the same, during the free-look-period of 15 days, from the date of receipt of the same, and ask for cancellation thereof. It was further stated that the complainant failed to make a request for cancelling the aforesaid Policies, within free-look period of 15 days, from the date of receipt of the same, and, as such, the request made by her, at a later stage, for cancellation, could not be accepted. It was further stated that the terms and conditions of the Policies were duly explained to the complainant. It was further stated that since the complainant herself filled in and signed the proposal forms, as a result whereof, the Policies aforesaid, were issued, she could not turn round and say, at a later stage, that the terms and conditions of the same were not acceptable to her, as the same were not according to the representations made to her, by the agent of the Opposite Parties, and the information supplied by her, to him (agent). It was further stated that the complainant only paid one annual premium each, at the time of inception of the Policies, and, thereafter, failed to pay any further premium. It was further stated that the Policies, therefore, did not acquire any surrender value.It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

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10.         from the date of receipt of the same. However, the complainant did not apply for cancellation of the Policies, within a period of 15 days, from the date of receipt of the same. First request, which was made by the complainant is dated 10.10.2012, vide letter, copy whereof is Annexure C-2. This was in respect of the Policy bearing Nowhich was received by her, on 17.08.2012. Certainly, this request was not within the free-look period of 15 days, from the date of receipt of the Policy documents. The second request is also dated 10.10.2012, copy whereof is Annexure C-3, wherein, request for cancelling both the Policies was made. It appears that, in this letter, the Policy bearing No., was entered, later on. The second Policy, as per the admission of the complainant, in paragraph number 9 of the complaint, was received on 06.11.2012. Since, this Policy was received by the complainant, on 06.11.2012, the question of making a request for cancellation of the same, on 10.10.2012, vide Annexure C-3, did not at all arise. 

11.        

Guranteed Surrender Value:

The total Guaranteed Monthly Income paid during the year of surrender shall be deducted from this Surrender Value and is inclusive of the vested bonuses, if any.

The Company may allow surrender values at such other rates not less than the Guaranteed Surrender Values specified above. These rates will be declared by the company from time to time.

Surrender of the Policy shall extinguish all rights and benefits of the Policyholder under the Policy”

12.        It is evident from the afore-extracted Clause that the Policy(s) could acquire the surrender value, only after the premiums had been paid for at-least three Policy years. Since, in the instant case, as stated above, only one annual premium, in respect of each of the Policies, was paid by the complainant, the same did not acquire any surrender value. The parties were bound by the terms and conditions of the Policies, and could not go beyond the same. Since, the Policies had not acquired the surrender value, the complainant was not entitled to any amount, under the same. The Opposite Parties, therefore, by not paying anything, to the complainant, on the ground that the Policies had not acquired any surrender value, were not at all deficient, in rendering service.

13.         the Insurance Regulatory and Development Authority (Treatment of Discontinued Linked Insurance Policies), Regulations 2010 (hereinafter to be referred as the IRDA Regulations 2010 only), which were notified on 01.07.2010, in coming to the conclusion, that the complainant was entitled to a certain amount. It may be stated here, that the aforesaidIRDA Regulations 2010, were only applicable to the unit linked Policies, and not to the traditional Policies. In the instant case, the Policies, in question, were traditional Policies. Both the Policies were Bharti AXA Life Monthly Income Plan. It is evident, from the General and Definitions of the Policy Bond, at page 59 of the District Forum file that”.the IRDA Regulations 2010. Had the District Forum, gone through the Policy Bond, at page 59 of its file, it would have certainly come to know that the Policies, in question, were not unit linked Policies, but were only traditional Policies. The directions of the District Forum, to the Opposite Parties, that the complainant be informed about the Guidelines, contained in the IRDA Regulations 2010, so that she may be able to exercise her option, in terms of the same, is not in accordance with the provisions of law. The reliance of the District Forum, on the IRDA Regulations 2010, was, thus, misconceived.

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Pronounced.

February 3, 2014

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

(DEV RAJ)

MEMBER

Sd/-

(PADMA PANDEY)

Rg

STATE COMMISSION

(First Appeal No.)

Argued by:

Dated the 

ORDER

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                  (i).    The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act.

                (ii).    Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.

               (iii).    Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that.

                (iv).        Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law”.

4.           N.Balakrishnan v. M.Krishnamurthy, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-

“It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.

10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."

The Court further observed in paragraphs 11, 12 and 13 which run thus:-

"11. Rules of limitation are not meant to destroy the rights 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. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights 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 videShakuntala Devi Jain v. Kuntal KumariState of W.B. v. Administrator, Howrah Municipality

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 the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "

5.           Mumbai (Maharashtra) High Court, while condoning 52 days delay, in filing the appeal, observed as under:-

“No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day`s delay in filing the appeal. The later judgments of theApex Court

6.                   The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. It is evident, from the record that delay, in this case, occurred due to the cumbersome official procedure, which was required to be followed, to obtain approval for filing the appeal. Certified copy of the order impugned, after having been received, by the Counsel, and the necessary documents, were, in the first instance, sent to the Head Office of the applicants/appellants, at Mumbai (Maharashtra), for consideration, and seeking approval of the Legal Department/Competent Authority, as to whether, it was a fit case, for filing an appeal or not. For taking decision by the Company, as to whether, an appeal against the order was to be filed or not, the file had to pass through many channels. No single person, could take the decision, at his own level independently, for filing an appeal. When the appeal was prepared, and about to be filed, on 11.11.2013, in this Commission, it transpired that the demand draft was inadvertently prepared, in the name of the State Consumer Disputes Redressal Commission, Punjab, at Chandigarh, instead of State Consumer Disputes Redressal Commission, U.T., Chandigarh. The delay of 48 days, in filing the appeal, cannot be said to be so huge, as to deny the substantial justice. Even otherwise, it is settled principle of law, that normally every lis should be decided on merits. When substantial justice and the procedural wrangles are pitted against each other, then the former shall prevail over the latter. Under these circumstances, it could be held that delay in filing the appeal, was neither intentional nor willful, but, on account of the reasons, explained in the application. There is, thus, sufficient cause, for condoning the delay. The application. thus, deserves to be accepted.

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heard.

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Sd/-            

(DEV RAJ)

MEMBER

(JUSTICE SHAM SUNDER (RETD.))

PRESIDENT

(PADMA PANDEY)

MEMBER