Tripura

StateCommission

A/56/2017

Bajaj Allianz General Insurance Company Ltd. - Complainant(s)

Versus

Sri. Bhulu Datta - Opp.Party(s)

Mr. Karnajjit De

20 Jan 2018

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.56.2017

 

 

1. Bajaj Allianz General Insurance Company Ltd.,

Sreeji Tower, 3^rd Floor,

C/o Guwahati Tea Ware Housing Pvt. Ltd.,

Adjacent to Mahindra Show Room, 

Christian Basti, Guwahati-781005 (Assam),

1.  

… … … … Appellant/Opposite Party.

 

Vs

 

1. Sri Bhulu Datta,

S/o Late Manindra Datta,

 

2. Smt. Prativa Datta,

W/o Sri Bhulu Datta,

 

Both are the resident of Ananganagar,

P.O. Bimanghar, P.S. Airport,

District - West Tripura.

… … … … Respondent/Complainants.

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Chandra Sharma,

Member,

State Commission, Tripura.

 

 

 

 

 

For the Appellant:                                               Mr. Karnajit De, Adv.

For the Respondents:                                          Mr. Kanu Lal Pal, Adv.

Date of Hearing & Delivery of Judgment: 20.01.2018.

 

 

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

 

 

U.B. Saha, J,

The instant appeal is filed by the appellant, Bajaj Allianz General Insurance Company Ltd., represented by its Branch Manager, Branch Office at Sreeji tower, 3^rd Floor, Christian Basti, Guwahati under Section 15 of the Consumer Protection Act, 1986 against the judgment dated 03.07.2017 passed by the learned District Consumers Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No. C.C. 94 of 2016 along with an application for condoning the delay of 108 days in preferring the appeal against the aforesaid judgment.    

2. Today is fixed for order on condonation petition.
3. Heard Mr. Karnajit De, Ld. Counsel appearing for the appellant Bajaj Allianz General Insurance Company Ltd. (hereinafter referred to as opposite party/Insurance Company) as well as Mr. Kanu Lal Pal, Ld. Counsel appearing on behalf of the respondents (hereinafter referred to as complainants).
4. Facts needed to be discussed are as follows:-

The deceased son of the complainants, namely, Late Sahadev Datta purchased one Auto Rickshaw bearing No.TR-01 F 2021 in the year 2014 and he used to carry passengers for self-employment. On 24.06.2015, the son of the complainants while plying the said vehicle at Lichubagan near Army Canteen met with accident. He got serious injuries due to the said accident and he was taken to Agartala Medical College and GBP Hospital. Ultimately he died by the accident. The vehicle was insured with the Bajaj Allianz Insurance Company being Policy No.OG-15-2405-1803-00000436 up to 29^th June, 2015. Complainants being the legal heirs claimed the insured amount, but their claim was denied. So the complainant no.1 claimed for compensation for death of his son deceased Sahadev Datta before the competent authority of the opposite party Insurance Company. As the opposite party Insurance Company did not response to his claim, the complainants approached the District Forum by way of filing a petition under Section 12 of the Consumer Protection Act, 1986 for the insured amount and compensation for deficiency of service.

5. Opposite party Insurance Company represented by its Branch Manager filed written statement on behalf of the Insurance Company denying the claim of the complainants. It is stated that the owner driver of the vehicle drove the vehicle without permit at the time of accident and he had violated the Motor Vehicle Acts and Rules. Thus, the complainants are not entitled to get any compensation as sought for.
6. The learned District Forum after considering the contention raised by the parties in their pleadings framed the following points for deciding the case:

1. Whether the petitioner was entitled to get the policy benefit and the same was denied by O.P.?
2. Whether the petitioner was entitled to get any compensation for deficiency of service of O.P.? 

7. Complainant-petitioners produced photocopy of FIR, Death Certificate, Postmortem Report, Survival Certificate, Certificate of Registration, Insured Certificate, Driving License, Road Permit, Tax token, School Certificate of the deceased, letter. Complainant no.2 also examined herself as a witness.
8. Opposite party, on the other hand, produced Certificate of Insurance Policy, Survey Report, verified copy of Permit, Repudiation letter, certified copy of letter to the insured, Original Permit which were exhibited as Exhibit-A series. Opposite party also examined one witness, namely, Odyssey Bordoloi.
9. The learned District Forum after considering the evidence on record as well as the documents exhibited, allowed the complaint petition directed the Bajaj Allianz General Insurance Company Ltd. to pay Rs.10,000/- for deficiency of service and settle the claim on non-standard basis i.e. 75% of sum assured. The learned District Forum also directed the Opposite parties to pay the amount within one month, if not paid, it will carry interest @ 9% per annum.
10. In the condonation petition, the opposite party Insurance Company stated, inter alia, that the engaged Counsel of it received the copy of the judgment on 04.07.2017 and thereafter the Ld. Counsel forwarded the same to the Branch Office of the opposite party-Insurance Company at Guwahati in the second week of July as there was no office of the opposite party at Agartala. The Branch Office of the opposite party-Insurance Company at Guwahati sent the copy of the judgment to its Regional Office at Kolkata in the third week of July. Thereafter, the Regional Office of Kolkata after receiving the copy of the judgment sent the same to its Head Office at Pune in the first week of August for getting approval for filing the appeal. The Head Office of the opposite party after consulting the retainer of the Company has given approval for filing the appeal and sent the entire case file to the Kolkata Regional Office in the third week of August. The Regional Office of Kolkata sent the same to its Guwahati Branch Office in the last part of the third week of August with the approval of the Head Office and in consequent thereto, the Branch Office of Guwahati sent the entire case record to the Ld. Advocate at Agartala for drafting the appeal memo and the Ld. Advocate after preparing the memo of appeal along with condonation petition sent it to the Guwahati Branch Office for approval in the last part of the first week of September. Thereafter, the Branch Office after approving the memo of appeal forwarded the same to the Ld. Advocate at Agartala in the second week of September, but when the case was brought to be filed, at that time it came to the light that the opposite party Insurance Company had sent the statutory amount by cheque instead of Demand Draft. Thus the Ld. Advocate of the opposite party Insurance Company intimated the same to the opposite party Insurance Company. The opposite party Insurance Company after getting the intimation of this inadvertent mistake informed the Ld. Advocate at Agartala to send back the cheque of statutory amount to its Regional Office at Guwahati. After receipt of the cheque, the Branch Office of Guwahati sent it back to the Mumbai Head Office and thereafter the opposite party Insurance Company had again issued a Demand Draft of statutory amount in the last part of second week of November. After being received the Demand Draft, the case was filed along with condonation petition on 18^th November, 2017 for condoning the delay of 108 days.
11. The complainants filed an objection to the prayer for condonation of delay wherein it is stated that the opposite party Insurance Company ought to have sent the demand draft of statutory amount at the first instance in place of bank draft. The Insurance Company is aware regarding the provisions of Consumer Protection Act as it has filed so many appeals against so many judgments.
12. Mr. K. De, Ld. Counsel would contend that the delay took place due to the following the official procedure. Thus such delay cannot be considered as an intentional one. He further submits that there cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. In support of his aforesaid contention he has relied upon a judgment of the Hon’ble Apex Court in Ram Nath Sao @ Ram Nath Sahu & Others Vs Gobardhan Sao & Others 2002 (2) Supreme 143 particularly in Paragraph-11 which is as follows:-

“11. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.”   

13. Per contra, Mr. Pal, Ld. Counsel while opposing the prayer for condonation of delay would contend that admittedly the judgment dated 03.07.2017 was received by the opposite party Insurance Company on 04.07.2017 and thereafter they took almost 108 days excluding the prescribed period of limitation for preferring appeal by way of following the official procedure i.e. departmental involvement and according to him, such departmental involvement cannot be a sufficient ground to condone the delay. He has further submitted that in the condonation petition, the opposite party mentioned that Ld. Counsel of the opposite party sent the judgment in the second week of July, but no date is mentioned. It is stated not only in sending of judgment by the Ld. Counsel to its Branch Office at Guwahati, but for the Branch Office at Guwahati and Regional Office in Kolkata also it is not specifically mentioned on which date the copy of the judgment was sent to its Regional Office and Head Office at Pune, rather stated in every case that either in 3^rd week of July or first week of August, 3^rd week of August or first week of September. He has finally contended that now a days, copy of the judgment can be sent even by e-mail within an hour and more so, the Branch Office, Guwahati of the Insurance Company could have sent the copy of the judgment to its Head Office directly being Head Office is the approval authority. Thus, the delay has not been properly explained and there is no sufficient cause for such delay. In support of his contention he has relied upon a judgment of Delhi State Consumer Disputes Redressal Commission in (Mahanagar Telephone Nigam Ltd. Vs. Ghanshyam Bansal) 2000 3 CPJ 315 particularly in Paragraph-6 and 7 of the said Report wherein Delhi State Commission considered almost a similar points which are as follows:-

“6. The present appeal has been filed beyond the statutory period of 30 days prescribed in terms of Section 15 of the Act. The impugned order was passed on 27.7.1999 and duly received by the appellant on 29.7.1999, whereas, the present appeal has been filed only on 18.10.1999. The reasons assigned by the appellant for the delay in filing the present appeal are stated in the application for condonation of delay filed by the appellant. On perusing the same, it comes to fore, that the certified copy of the impugned order after being received on 29.7.1999, was put up before the AGM (Legal) after 20 days on 19.8.1999, who after over a week forwarded the same to AGM, Legal (HQ) on 27.8.1999. Thereafter, the said file with the impugned order was put up before the Joint General Manager (Legal) after a lapse of over a month on 4.10.1999. Further, though the file reached the concerned Counsel for the appellant on 8.10.1999, the appeal was actually filed on 18.10.1999, i.e. after a delay of further 10 days. The above narration itself reveals the total apathy and laches on the part of the officials of the appellant MTNL which in no way can be termed as ‘sufficient cause’ so as to call for our indulgence in condoning the delay of about 47 days.

7. We are fortified in our above view by a decision of the Hon’ble Supreme Court in the case P.K. Ramchandran v. State of Kerala & Anr., reported as AIR 1998 SC 2276. In the abovesaid decision the Hon’ble Supreme Court has held :

“The High Court does not appear to have examined the reply filed by the appellant as reference to the same is conspicuous by its absence from the order. We are not satisfied that in the facts and circumstances of this case, any explanation, much less a reasonable or satisfactory one, had been offered by the respondent-State for condonation of the inordinate delay of 565 days.

Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained.”

And the Hon’ble High Court of Jammu and Kashmir in the case of Jammu and Kashmir v. Smt. Ram Kali, reported as AIR 1987 Jammu and Kashmir 71, while considering the question whether the norms for condonation of delay should be different for Government or a Statutory Body as compared to an individual, has held :

“The delay in this case has accrued as the matter was referred to the Law Department and the office of the Executive Engineer, Chenani Hydel Project who is dealing with the case and the Government Office such as, Law Department, etc. were also at Srinagar and the matter being in rotation through proper channels took time.

In our opinion, the abovesaid explanation without mentioning the specific days and the reason for delay explaining each day of delay is no cause at all much less as sufficient cause for condonation of delay in filing the revision or an appeal within the meaning of Section 5 of the Limitation Act. We are, therefore, in full agreement with the ratio of the authority of the Andhra Pradesh High Court, AIR 1973 AP 43 (supra), and hold that no exception is made for the Government in the matter of condonation of delay which is not satisfactorily explained in terms of the Act.”

14. We have gone through the condonation petition as well as the objection. Contention of the appellant that the delay caused due to departmental involvement and decision making process cannot be a sufficient ground to condone the delay. Delay in filing appeal cannot be condoned as a matter of generosity, rather there is proff of sufficient cause, discretion for condonation of delay cannot be exercised. In the application, nothing has been stated as to why the Branch Office of the opposite party-Insurance Company at Guwahati sent the copy of the judgment to the Regional Office at Kolkata instead of Head Office at Pune, when the complainant filed the case against the Head Office of the Insurance Company at Pune and the Branch Office at Guwahati. Regional Office Kolkata has no function so far the impugned judgment in question. More so, there is nothing in the condonation petition that on which date the Branch Office sent the copy of the judgment to the Regional Office at Kolkata and the Regional Office sent the judgment to the Head Office at Pune, only mentioned 2^nd week of July, 3^rd week of July, 1^st week of August, 3^rd week of August, 1^st week of September. According to us, all these explanations are only to eye wash the mind of this Commission.  
15. In Basawaraj & Anr. Vs The Spl. Land Acquisition Officer (Civil Appeal No.6974 of 2013), the Hon’ble Apex Court observed that “It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. ‘A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.’ The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim ‘dura lex sed lex’ which means ‘the law is hard but it is the law’, stands attracted in such a situation. It has consistently been held that, ‘inconvenience is not’ a decisive factor to be considered while interpreting a statute.”
16. ‘Sufficient cause’ is the cause for which the opposite parties could not be blamed for their filing of appeal in time. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. In other way, it can be said that "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".
17. As per settled law, culled out from various judicial decisions, the above expression, '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 respondent 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.
18. In Anshul Aggarwal Vs New Okhla Industrial Development Authority IV (2011) CPJ 63 (SC), 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.”

Again 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.”

19. The case of Ram Nath Sao @ Ram Nath Sahu & Others (supra), as referred by Mr. De, Ld. Counsel for the appellant-opposite party, is not related to a case of Consumer Protection Act, rather a case regarding Civil disputes and in that case, it was detected that when First Appeal No. 307 of 1989 (R) was listed for hearing, appellants' counsel wrote a letter intimating the client about listing of the matter whereupon one of the appellants in the appeal came on 18^th September, 1998, met his counsel and during the course of discussion, it transpired that appellant Nos. 2,3,22 and 41 had already expired whereupon the counsel instructed the client to go to the village and bring the Vakalatnama from the heirs and legal representatives of the deceased persons for filing substitution application. After obtaining the Vakalatnama, the client came back on 20^th September, 1998, and thereafter on 24^th September, 1998, substitution application was filed making a prayer therein for expunging the name of appellant No.2 and making a note that he died on 10^th April, 1997 leaving behind appellant Nos. 5, 9 and 10 as his heirs and legal representatives who were already on the record, besides a daughter Sheela Devi for whom prayer was made for bringing her on the record in place of the deceased appellant as it is well settled that in such an eventuality, left out heirs can be brought on the record at any time irrespective of the period of limitation and more so, so far the appellant No.3 is concerned, there was delay of 130 days in filing the application for substitution. However, in relation to appellant No. 22, the delay was about five years and in relation to appellant No. 41, the delay was about three years, both of whom were transferees and belonged to villages different than the village and police station in which members of joint family of the plaintiffs and contesting defendants resided.
20. The case in hand is totally different. The instant case, the Ld. Counsel of the opposite party as well as the Branch Office of the opposite party at Guwahati were very much aware that the decision making authority is the Head Office at Pune. Therefore, they could have sent the copy of the judgment directly to the Head Office at Pune and not only that, the authority ought to have sent the Demand Draft instead of cheque at the first instance as they are very much aware about the provisions of preferring an appeal under the Consumer Protection Act.

 

21. The appellant-opposite parties have failed to explain the delay properly in filing the appeal connected. The only reasons stated for causing delay is the departmental involvement, which cannot be a ground for condoning the delay as stated (supra).

          In view of the above, we are of the opinion that the delay in filing the instant appeal has not been explained properly as required and the same is also not bona fide. Accordingly, the condonation petition is dismissed and in consequent thereto, the appeal also stands dismissed.

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