Tripura

StateCommission

A/59/2017

Life Insurance Corporation of India - Complainant(s)

Versus

Sri Kinkar Chowdhury - Opp.Party(s)

Mr. N. Majundar, Mr. H. Sarkar

05 Feb 2018

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.59.2017

 

 

1. Life Insurance Corporation of India,

Mumbai-400021, India.

Represented by the Chairman.

 

2. The Branch Manager,

Life Insurance Corporation of India,

Agartala Branch No.1,

Paradise Chowmuhani,

Hospital Road Extension,

Agartala, West Tripura.

… … … … Appellant/Opposite Parties.

 

Vs

 

1. Sri Kinkar Chowdhury,

S/o Late Bhupesh Chandra Chowdhury,

East Shibnagar, P.O. Agartala College,

P.S. East Agartala, Agartala, West Tripura,

 

 

… … … … Respondent/Complainant.

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

 

 

 

 

 

For the Appellants:                                              Mr. Nepal Majumdar, Adv.

For the Respondent:                                           Mr. Bidyut Datta, Adv. &

Mr. Sanjoy Saha, Adv.

Date of Hearing & Delivery of Judgment: 05.02.2018.

 

 

J U D G M E N T [O R A L]

 

 

U.B. Saha, J,

The instant appeal is filed by the appellants, Life Insurance Corporation of India, represented by its Chairman and the Branch Manager, Life Insurance Corporation of India, Agartala Branch No.1 against the judgment dated 04.05.2017 passed by the learned District Consumers Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.03 of 2017 along with an application for condoning the delay of 167 days in preferring the appeal against the aforesaid judgment.    

2. Today is fixed for order on condonation petition.
3. Heard Mr. Nepal Majumdar, Ld. Counsel appearing for the appellants Life Insurance Corporation of India (hereinafter referred to as opposite parties/Insurance Company) as well as Mr. Bidyut Datta, Ld. Counsel as assisted by Mr. Sanjoy Saha, Ld. Counsel appearing on behalf of the respondent, Sri Kinkar Chowdhury (hereinafter referred to as complainant).
4. Facts needed to be discussed are as follows:-

The complainant Sri Kinkar Chowdhury filed an application under Section 12 of the Consumer Protection Act, 1986 before the learned District Forum alleging that he purchased one Health Policy, ‘LICI Health Plus Plan’ being Policy No.492503339 on 19.01.2009. The value of the Policy was Rs.1,80,000/- and the premium for the said Policy was Rs.10,500/-. Accordingly, the complainant paid the premium since 2009 to 2016. During the life time of the Policy, he was hospitalized in Apollo Hospital on 25.05.2015 due to coronary artery disease and was discharged on 30.05.2015 after operation. The complainant paid an amount of Rs.2,56,000/- as cost of treatment. He also spent Rs.70,000/- in additional towards air fare and other expenses. After discharge from the hospital, he submitted the claim to the opposite parties-Insurance Company on 16.06.2015 in prescribed format for an amount of Rs.1,80,000/- and in consequent thereto he has received a communication from LICI Silchar on 07.07.2015 wherein he was asked to submit hospital treatment form, prescriptions, letter of condonation of delay. Again he received the communication on 24.08.2015 asking him to submit investigation report which was communicated. Thereafter on 19.11.2015 he was informed that major surgical benefit was not available for him. Rs.3,510/- was offered as hospital cash benefit by opposite parties-Insurance Company. Thus, the claim of the complainant was repudiated by the opposite parties.

Being aggrieved by the action of the opposite parties, the complainant claimed Rs.1,80,000/- as per terms of the Policy and also Rs.5 lacs as compensation.

5. Opposite parties-Insurance Company appeared and filed written statement denying the claim. It is contended by the opposite parties that the complainant was fully satisfied with the terms and conditions of the Policy and to the extent of coverage. The policy holder-complainant was informed about the list of allowed surgery through booklet of ‘The Conditions & Privileges’. The surgery underwent by the complainant does not cover the items list in the ‘Condition & Privileges’. Thus the claim was rightly denied and there was no deficiency of service.
6. In support of his case, complainant produced LIC’s Health Plus Plan, Annual installments premium, discharge summary, money receipt, claim petition, communications, hospital treatment form which were exhibited as Exhibit.1 series. Complainant also examined himself as P.W.1.
7. Opposite parties, on the other hand, produced incomplete form, hospital treatment form, petitioner’s letter, letter under reference and also examined one witness, namely, Mr. M.A. Choudhury, Manager Administration of LICI.
8. The learned District Forum after considering the records available before it and the evidence on record allowed the complaint petition directing the opposite parties to pay an amount of sum assured of Rs.1,80,000/- and also pay Rs.15,000/- for harassment of the complainant as compensation and also to pay Rs.5,000/- as cost of litigation, in total Rs.2 lacs. The amount should be paid within two months, if not paid, it will carry interest @9% per annum.
9. Being aggrieved by the judgment of the learned District Forum, the opposite parties filed the instant appeal along with the condonation petition as stated (supra).
10. In the condonation petition, the reasons for delay have been explained, stating, inter alia, that the judgment was delivered on 04.05.2017 passed by the learned District Forum and the copy of which was forwarded to the opposite parties on 25.05.2017. Thus the learned District Forum took 21 days to supply the copy of the judgment though the period for filing appeal was 30 days. It is further stated that during the period from 26.05.2017 to 27.06.2017, the matter awaited for decision of the authority on scrutinizing the judgment passed by the learned District Forum. On 28.06.2017, the Manager, (Legal & H.P.F.) of the opposite parties Insurance Company, Silchar made a communication to the Branch Office at Agartala for preferring the appeal. Though the entrustment for preferring the appeal was communicated on 04.07.2017, but the essential documents of the case record and the supplied copy of the judgment were not available in the case file for preferring the appeal. Thereafter, the Ld. Counsel Mr. Nepal Majumdar who is appearing in the instant appeal was appointed for preferring appeal. He applied for certified copy of the judgment on 20.07.2017 which was obtained on 04.08.2017. The Ld. appointed Counsel asked for clarification of Insurance Policy of ‘LIC’s Health Plus’ and ‘Conditions & Privileges’ under such Policy as well as the ‘Welcome Kit’ etc. regarding the entitlement of the complainant, if any, to the Life Insurance Corporation of India, Silchar Division. The period from 05.08.2017 to 23.10.2017 was elapsed for taking the clarification and instructions from the competent authority of the appellants. It is further contended that as the Counsel for the Corporation Mr. Majumdar was in pre-occupation during the period from 24.10.2017 to 24.11.2017, he could not prefer the appeal in time. In paragraph-11 of the application while explaining the reasons for delay has stated as follows:-

“11. That, in absence of case record and judgment it is/was not possible to prefer appeal before the State Commission, Tripura. As such the appeal could not filed as early within the stipulated period. Finding no other alternative for the interest of the appellants taken effort for obtaining the certified copies of the case record. Judgment dated 04-05-2017 passed in CC 03 of 2017 forwarded on 25-05-2017 though the Despatch Register/Peon Book. Period from 26-05-2017 to 01-06-2017 spent for collecting the judgment from the Counsel and discussion. Period from 02-06-2017 to 28-06-2017 spent for taking time to scrutinize and for taking decision for preferring appeal. Period from 29-06-2017 to 19-07-2017 spent in collecting the case record from the conducting Lawyer appeared before the Ld. Forum. Period from 20-07-2017 to 04-08-2017 spent in collecting the Certified copy of the Judgment, documents and evidence etc. from the case record of the Ld. Forum. Period from 05-08-2017 to 23-10-2017 spent for collecting the clarification from the Divisional Office, Silchar, LIC of India, in between there was long Puja Vacation from 26-09-2017 to 22-10-2017. Period from 24-10-2017 to 23-11-2017 Ld. Appointed Panel Lawyer of LIC of India was pre-Occupied. Period from 24-11-2017 to 28-11-2017 took time in drafting the Appeal as well as two C.M application, one is for Condonation of delay in preferring the appeal and another one for staying the Operation of impugned Judgment.

Ultimately during the period from 26-05-2017 to 28-11-2017 the entire period appellants are sufficiently prevented for filing of appeal in absence of the details of case record, Certified copy of the Judgment, clarification and instruction on Insurance Policy of “LIC’s Health Plus” and “Conditions & Privileges” under “Health Plus” Policy as well as “Welcome Kit” etc. regarding the entitlement of the Complainant, if any, etc. from the Competent Authority of the Life Insurance Corporation of India, Silchar Division and for various unavoidable circumstances was beyond control and the appellants are sufficiently prevented in filing the appeal in time.”

11. On the other hand, the respondent-complainant filed objection to the prayer for condonation of delay wherein it is stated that more than two months with effect from 05.08.2017 to 23.10.2017 was elapsed for taking the clarification and instruction from the competent authority regarding the Policy and no sufficient cause has been shown for condoning the delay.
12. Mr. Majumdar, Ld. Counsel while urging for allowing the prayer for condonation of delay would contend that delay took place due to following the official procedure as well as the instructions of the lawyer from the appellant Insurance Company. He further submits that as the copy of the judgment which was supplied by the learned District Forum was not available with the opposite parties-Insurance Company, it had to apply for certified copy of the judgment and other documents for which there was a delay of 167 days in preferring the appeal. He has finally contended that while taking an application for condonation of delay in preferring the appeal, the Court has to see as to whether any grave injustice would be caused to any of the parties if the application for condonation of delay is allowed and whether there is any merit in the appeal for which condonation of delay is prayed for and if it is found that really there is a merit in the appeal, then the Court should condone the delay as the duty of the Court is to see whether the impugned judgment is a reasoned one or not and if it is seen that the impugned judgment is an unreasonable one then the Court should condone the delay to do justice and not oust a justice seeker merely on technical ground. In support of his contention he has relied upon a judgment of Hon’ble Apex Court in State of Nagaland Vs Lipok Ao & Ors., AIR 2005 SC 2191 wherein the Hon’ble Apex Court allowed the prayer for condonation of delay.
13. Per contra, Mr. Datta, Ld. Counsel submits that the cause for delay in preferring appeal as explained by the opposite parties is not a genuine one, rather the opposite parties Insurance Company was totally careless in preferring appeal which cannot be considered as just cause of action. He further submits that even if on the argument sake this Commission considered that the learned District Forum took 21 days for supplying the copy of the judgment, then also, 146 days delay are there which was taken either for following the official procedure or on the ground of pre-occupation of the Ld. Lawyer. He has again contended that the opposite parties Authority took time from 26.05.2017 to 27.06.2017 for taking decision as to whether they would prefer the appeal or not that is almost the period of limitation as prescribed by a special statute like Consumer Protection Act. He has finally contended that what should be the sufficient cause was discussed by the Hon’ble Apex Court in Basawaraj & Anr. Vs The Spl. Land Acquisition Officer, (Civil Appeal No.6974 of 2013) particularly, in Paragraph-9 of the said Report which is as follows:-

“9. Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonaiton of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose.”

He has also relied upon a judgment of the Hon’ble Apex Court in Anshul Aggarwal Vs New Okhla Industrial Development Authority IV (2011) CPJ 63 (SC), wherein the Hon’ble Apex Court while dealing with the issue pertaining to condonation of delay observed as follows:-

“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.”

14. In Cicily Kallarackal Vs Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein the Hon'ble Supreme Court observed:-

“4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC), has explained the scope of condonation of delay in a matter where the special Courts /Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute(s).

5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.

6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay”.

In the aforesaid judgment Hon’ble Supreme Court has highlighted that while dealing with an application for condonation of delay the Court must bear in mind the object of expeditious disposal of consumer dispute which would get defeated if the Court was to entertain highly belated petitions.”

15. We have considered the cause for delay as explained by the opposite parties Insurance Company in their condonation petition as well as the objection filed by the respondent-complainant and also the submission of Ld. Counsel appearing for the parties. There is no doubt that 'sufficient cause' though deserves to receive a liberal construction, yet, a just and equitable balance has to be maintained between the right secured by the complainant as a result of the expiry of the prescribed period of limitation and the injustice of depriving the appellants of adjudication of their grievances on the merits of their appeal for causes beyond their reasonable control, which means the cause is bona fide and beyond the control of the appellants. There is no hard and fast rules, what should be the 'sufficient cause' in a given case. What should be the ‘sufficient cause’ has already been decided by the Hon’ble Apex Court as stated in the decision of the Hon’ble Supreme Court as referred above. Insurance Company is not a rustic litigant or ignorant about the period of limitation as the Insurance Company approached various Consumer Foras as well this Commission in various matters.

In the instant case we are of the considered opinion that the Insurance Company acted in such a manner for preferring appeal which is nothing but a mere negligence and not beyond their control, rather the appellant Insurance Company sat over the matter for 146 days only for following the official procedure. In the condonation petition, it is also stated by the opposite party-Insurance Company that the appointed Panel Lawyer for the Corporation was in pre-occupation during the period from 24.10.2017 to 24.11.2017 for which it could not prefer appeal within time. We are of the further considered opinion that when the lawyer was pre-occupied either for his personal reasons or any other reason, then the Insurance Company should have engaged any other lawyer for preferring the appeal in time. Thus, according to us, that cannot be also a good sufficient ground for condoning the delay.

In view of the above, the prayer for condonation as sought for is rejected and in consequent thereto, the appeal also stands dismissed.

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

 

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura