Nagaland

StateCommission

A/7/2018

Tata AIG General Insurance Co. Ltd. - Complainant(s)

Versus

Shri Shikato Chishi - Opp.Party(s)

Vikramjeet

28 Jan 2023

ORDER

NAGALAND STATE CONSUMER DISPUTES REDRESSAL COMMISSION

KOHIMA, NAGALAND

 

 

 

 

 

Interlocutory Petition 09/2018

connected to

First Appeal No 07/2018

 

Tata AIG General Insurance Co. Ltd.

Represented by its Deputy Vice-President

Zone claims Head-Kolkata

Petitioner/Appellant

 

-vs-

 

Shri Shikato Chishi

Resident of House No. 70,

Thahekhu Village, Rangapahar Road,

Dimapur, Nagaland, Pin-797112

Respondent/Claimant

 

 

 

 

 

 

 

Present:

For the Revisionist        : Mr. Vikramjit Debnath (Adv)

For the Respondent       : Mr. C. D. Rungsung (Adv)

 

 

Date of Hearing             : 28.01.2023

Date of Judgement        : 01.03.2023  

 

 

          The instant I.A petition has been filed by the appellant for condonation of 75 days delay in preferring the appeal against the order dated 05.07.2018 passed by the learned District Consumer Disputes Redressal Commission, Dimapur, Nagaland in CFD case no. 8 of 2016.

        Learned counsel for the appellant praying for the condonation submits as follows:

That the impugned order was passed on 05.07.2018 by the District Consumer Disputes Redressal Forum and the certified true copy of the judgment and order was available to their counsel at Dimapur only on 06.07.18 and forwarded the impugned judgment and order through registered post dated 09.07.18 which has been received by the petitioner on 11.07.18. Upon receipt of the certified true copy of the impugned judgment and Order the petitioner office placed the matter before their head office at Mumbai on 18.07.18 for necessary advised and received approval from head office on 01.08.18 to assail the impugned judgment and Order before the Hon’ble State Commission at Kohima and accordingly the dealing advocate on 0208.18 was requested to file the appeal at State Commission Kohima. However, due to some personal inconvenience the counsel unwilling to file appeal. On 06.08.18 the petitioner/appellant requested another advocate at Dimapur and forwarded the relevant records and copy of the impugned judgement and order to prefer appeal the said counsel also unwilling to file appeal. On 20.08.18 the petitioner/appellant re approached the dealing counsel to prefer appeal and forwarded the relevant documents along with the impugned judgement and order to prefer appeal with miscellaneous petition for condonation of delay and petition for suspension of impugned judgment and order. Within the course of seeking legal opinion to take decision for preferring appeal against the impugned judgment and order and in the course of transmission of record due to long distance between controlling office and the petitioner's counsel at Dimapur also for reasons of postal delay, the period of limitation already expired. Their counsel at Dimapur also for preparation of Memorandum of appeal along with miscellaneous petition for condonation of delay and miscellaneous petition for suspension of the impugned judgment and order took few days. As such, for the reasons shown above, the petitioner could not prefer the appeal within the period of limitation and as such, the petitioner craves leave to justify the delay which respectfully constitutes sufficient cause for condonation of delay

4. That the petitioner respectfully submits that the impugned judgment and order passed on 05.07.18 and to prefer the appeal the limitation of 30 days was expired on 06.08.18 and the appeal is filed today, i.e. on 19th September, 2018 and there has been a total delay of altogether 75 and as such, the said delay is required to be condoned in as much as the petitioner was not at all at fault in not filing the appeal within the period of limitation.

 

        Appearing for the Respondent/Complainant Mr. C. D. Rungsung submits that the law on limitation is settled. It is the duty of the petitioners to give sufficient explanation of each and every days delay. He points out that 30 days period of limitation must first be explained to give a right for the petitioner to explain the remaining delayed days. If this is not satisfied the petition for condonation cannot be considered even if later incidents eventualities debarred the petitioner from genuinely filing the petition. No explanation between 05.07.2018 and 05.08.2018 has been given by the petitioner. Therefore, the 30 days time for filing the appeal has not been explained and the petition cannot be entertained. He has placed reliance upon the judgement of the Apex Court in the case of

 

Ajit Singh Thakur Singh and Anr

-vs-

State of Gujurat

(1981) 1 SCC 495

Para 6 of the above referred judgement reads as:  

6. At the outset, it is urged by learned counsel for the appellants that the High Court erred in condoning the delay in filing the appeal, and the appeal should have been dismissed as barred by limitation. We have examined the facts carefully. It appears that initially the State Government took a decision not to file an appeal and it allowed the period of limitation to lapse. Subsequently, on certain observations made by the High Court while considering a revision petition by Bhulabhai that it was a fit case where the State Government should file an appeal and on notice being issued by the High Court to the State Government in the matter, the appeal was filed. It was filed three months after limitation had expired. A faint attempt was made to show that when the initial decision was taken not to file an appeal all the papers had not been considered by the department concerned, but we are not impressed by that allegation. The truth appears to be that the appeal was not filed at first because the State Government saw no case on the merits for an appeal, and it was filed only because the High Court had observed - and that was long after limitation had expired - that the case was fit for appeal by the State Government. Now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within tune. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the present case, there was no such cause, and the High Court erred in condoning the delay.

        Learned Counsel for the Respondent/Complainant also submits that the procedural delays cannot be a good for moving a condonation petition, unless it can be explained that there were sufficient reasons that caused the delay. Concessions cannot be given to government instrumentalities for reasons of delay due to bureaucratic methodology in view of modern technologies which are being used and available now. He has relied upon the Apex Court decisions in the case of

Post Master General & Others

-vs-

Living Media India Limited & another

(2012) 3 Supreme Court Cases 563

        The Apex Court has observed at para 27 to 30:

27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.

29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay.

        The above judgement of the Apex Court sufficiently exhibits that the limitation law is equally applicable to government agencies and any other institutions where bureaucratic processes are involved, unless good reasons are established for the courts to consider the condonation.

        He further argues that “sufficient cause” as contained in the Limitation Act would largely depend upon the bona fide nature of the explanation. The mere explanation and reason that the counsel for the appellant was not willing to file or take up the matter cannot constitute a “sufficient cause”. To substantiate his argument, he has placed reliance upon the case of:

Maniben Devraj Shah

-vr-

Municipal Corporation of Birhan Mumbai

(2012) 5 Supreme Court Cases 157

        Para 24 and 25 of the above referred judgement reads:

24. What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and cause shown for the delay does not lack bona fides, then it may condone the delay. If on the other hand, explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of direction not to condone the delay.

25. In cases involving the states and its agencies/instrumentalities, the court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the state and/or its agencies/instrumentalities and the applications filed by then for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest.

We have keenly heard the arguments forwarded by the learned counsels of the contesting parties. It is the settled position of law that the limitation law should be interpreted keeping in mind forwarding the cause of substantial justice. This principle is subject to bona fide, and sufficient cause being shown by the petitioner for condonation of the delay. On examination of the affidavit filed by the petitioner/appellant we find that the crucial 30 days of the period granted for the appeal has not been explained from day to day with bona fide circumstances which prevented the appellant from preferring the appeal. The petitioner must exhibit that he had no negligence for the delay so caused and that the circumstances were beyond his control. He must show that there was no negligence on his part, and he was prevented from filing by facts which were beyond his control. The explanation offered before us is:

“Upon receipt of the certified true copy of the impugned judgement and order the petitioner office placed the matter before their head office on 01.08.2018 to assail the impugned judgement and order before the Hon’ble State Commission at Kohima and accordingly the dealing advocate on 02.08.2018 was requested to file the case at the State Commission, Kohima. However, due to some personal inconvenience the counsel unwilling to file the appeal. On 06.08.2018, the petitioner/appellant requested another advocate at Dimapur and forwarded the relevant records and copy of the impugned judgement and order to prefer appeal, the said counsel also unwilling to file appeal. On 20.80.2018 the petitioner/appellant re-approached the dealing counsel to prefer appeal and forwarded the relevant documents along with the impugned judgement and order to prefer appeal with miscellaneous petition for condonation of delay and petition for suspension of impugned judgement and order.”

What can be gathered from the above explanation is that the delay was caused due to the engaged counsel of the petitioner who was unwilling to file appeal, so they approached another lawyer who was also not willing to take up the matter. The petitioner has to go back to the earlier counsel by re-approaching him to file the appeal. This rotation and revolution between his engaged counsel caused the delay. We are in much doubt as to whether this explanation can be treated as sufficient cause under the Limitation Act and as interpreted by the Apex Court. We are of the strong view that this is merely a failure to set one’s own house in order. The petitioner’s failure to engage the appropriate lawyer cannot be considered as a sufficient cause for the delay. Petitioner’s inefficiency in establishing a convenient and efficient system cannot be treated as circumstances beyond his control. If this argument is accepted, we are heading for a system where Limitation Act will have no value and serve no purpose.

For reasons recorded above we are of the agreed view that the condonation petition must be dismissed. The F.A. No. 7/2018 also stands dismissed along with CMC 10/2018.

Registry is directed to refund the amount of ₹ 25,000/- which is deposited to the appellant within 2 weeks’ time from the passing of this order.

Copy of the order be furnished to the necessary parties without delay.