NCDRC

NCDRC

RP/3078/2012

BAJAJ ALLAINZ GENERAL INSURANCE CO. LTD. - Complainant(s)

Versus

SUSHIL CHANDRA MISHRA - Opp.Party(s)

MRS. MANJUSHA WADHWA

22 Feb 2013

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 3078 OF 2012
 
(Against the Order dated 22/06/2012 in Appeal No. 185/2012 of the State Commission Chhattisgarh)
1. BAJAJ ALLAINZ GENERAL INSURANCE CO. LTD.
Through,2nd floor,1 DLF Industrial Estate Moti Nagar
New Delhi
Delhi
...........Petitioner(s)
Versus 
1. SUSHIL CHANDRA MISHRA
S/o Sh Murari Mishra R/o Ward No-9 Purana Toli Jashpur Nagar
Jashpur
Chattisgarh
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
 HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner :
Mrs. Manjusha Wadhwa, Advocate
For the Respondent :NEMO

Dated : 22 Feb 2013
ORDER

In this revision petition there is challenge to order dated 22.6.2012, passed by State Consumer Disputes Redressal Commission, Raipur (for short, tate Commission 2. Respondent/complainant filed a consumer complaint under section 12 of the Consumer Protection Act, 1986 (for short, ct against petitioner/o.p. stating that his Maxi truck was insured with the petitioner. During the insurance period, Maxi Truck met with an accident. However, claim submitted by him was rejected by the petitioner. 3. Complaint was contested by the petitioner. 4. District Forum, vide order dated 16.3.2012, allowed the complaint. It directed the petitioner to pay respondent a sum of Rs.2,99,250/- within one month from the date of the judgment and interest @9% p.a. w.e.f. 9.4.2010 till the date of payment. Sum of Rs.1,000/- was awarded as compensation for mental torture and Rs.500/- towards cost. 5. Aggrieved by the order of the District Forum, petitioner filed appeal before the State Commission which dismissed the same. 6. Hence, this revision. 7. It has been contended by learned counsel for the petitioner that appeal was filed within the period of limitation. However, there was some delay in depositing the statutory amount and for that reasonable explanation has been furnished by the officials of the petitioner. The State Commission ought to have condoned the delay in deposit of the statutory amount. In support, learned counsel has relied upon a decision of this Commission reported as ational Insurance Company Limited Vs. M. R. N. Spinner (P) Ltd. IV (2010) CPJ 81(NC). 8. Section 15 of the Act is relevant for deciding the controversy and it read as under; 5 Appeal.--- 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 thirty days from the date of the order, in such form and manner as may be prescribed: Provided that the State Commission may entertain an appeal after expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period: (Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent of that amount or twenty-five thousand rupees, whichever is less) 9. State Commission, in its order observed; ection 15 of the Consumer Protection Act clearly says that no appeal can been entertained unless the deposit under second proviso to section 15 of the Act is made and therefore the appeal becomes entertainable only when such deposit is made. If that deposit has been made after 21 days after expiry of period of limitation, then naturally it has become entertainable after 21 days from the last date of expiry of limitation. In fact the requirement was that the deposit be made first and then the appeal was to be filed after depositing the amount. In view of this, this Commission asked from the appellant Company as to why the delay occurred. Then affidavit of one Mr. Punit Rathore of local office of the company at Raipur was filed in which it was explained that main server of the Head Office, Pune, became defective and so the Head Office, Pune could not instruct the concerning Bank to prepare cheque. As Mr. Punit Rathore does not work at Head Office Pune and works only in the Raipur Branch of the Insurance Company, so whatever has been stated by him in his affidavit merely remains a hear say statement and cannot be accepted as proper explanation as a ground for condonation of delay. That is why this Commission, asked the appellant Company to file affidavit of some competent person of the Pune Office in support of the statement that main sever of the Head Office became defective and so instruction could not be given to the Bank to prepare a cheque. At the same time it was also asked from the Company to tell as to, in case of failure of computer system what the Company usually does, whether it stops all its activities or can also work manually, but this query has not been replied by the Company. It appears that whatever explanation the Company has given for late deposit of amount, is an after thought defence which will not be supported by any reliable evidence, so it cannot be accepted by this commission unless duly supported by affidavit of a competent person, having knowledge of the facts. As the Company has failed in providing proper explanation of the delay of 21 days by filing affidavit of a competent person and has also failed to reply the query made by this Commission, so we find that delay has not been properly explained by the Company and thus the appeal, which was barred by limitation as has become entertainable after 21 days from the last date of period of limitation and the delay has not been properly explained, is liable to be dismissed as barred by limitation, so the same is hereby dismissed 10. The decision of M.R.N. Spinner (P) Ltd. (supra) relied upon by the learned counsel for the petitioner does not support her case. In this case, this Commission held ; . It is not disputed that the petitioner did not make the deposit in terms of the requirement of second proviso of Section 15. The question, which falls for consideration iss to what is the effect of non-compliance of the aforesaid provision? Second proviso to Section 15 provides that no Appeal, filed by a person, who is required to pay the amount in terms of the Order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited, in the prescribed manner, fifty percent of the amount awarded by the District Forum or twenty-five thousand rupees, whichever is less. The word ntertainedwas interpreted by Honle Supreme Court of India in Shyam Kishore and Others v. Municipal Corporation of Delhi and Another, reported in 48(1992) DLT 277(SC)= AIR 1992 (SC), to mean: o deal with or attempt to consideration 9. Meaning thereby that deposit was a pre-condition for entertaining or admitting the Appeal. In Shyam Kishore case (supra), it was observed as under : n M/s Lakashmiratan Engineering Works Ltd. v. Assistant Commissioner (Judicial) 1,Sale Tax, Kanpur Range, Kanpur, AIR 1968 SC 488, the Supreme Court had occasion to construe the meaning of the word ntertainedin proviso to Section 9 of the UP Sales Tax Act,1948 and the Court took the view that the word ntertainmeans dmit to consideration The Supreme Court while interpreting the word ntertainedcontinued in Section 9 of the U.P. Sales Tax Act, 1948 and the proviso thereto made a distinction between the expressions ppealand memorandum of ppeal Section 9 contemplated that the appeal could not be entertained without the proof being given along with memorandum of appeal that the tax had been paid. While dealing with the meaning of the word ntertainedHidayatullah, J. in paragraphs 7 and 10 of the judgment at pages 491 and 493 observed as under 7) To being with it must be noticed that the proviso merely requires that the appeal shall not be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due. A question, thus, arises what is the meaning of the word ntertainedin this context? Does it mean that no appeal shall be received or filed or does it mean that no appeal shall be admitted or heard and disposed of unless satisfactory proof is available. The dictionary meaning of the word ntertainwas brought to our notice by the parties and both sides agreed that it means either o deal with or admit to consideration We are also of the same opinion. The question, therefore, is at what stage can the appeal be said to be entertained for the purpose of the application of the proviso? Is it ntertainedwhen it is filed or is it ntertainedwhen it is admitted and the date is fixed for hearing or is it finally ntertainedwhen it is heard and disposed of?. Numerous cases exist in the law reports in which the word ntertainedor similar cognate expressions have been interpreted by the Courts. Some of them from the Allahabad High Court itself have been brought to our notice and we shall deal with them in due course. For the present, we must say that if the Legislature intended that the word ile or receivewas to be used, there was no difficulty in using those words. In some of the statutes which were brought to our notice such expressions have in fact been used.. 10).When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax 10. In the present case, the Appeal had been filed after the coming into force of the second proviso of Section 15 of the Act and the same could not be entertained or admitted to hearing without deposit of either the fifty per cent of the amount awarded by the District Forum or twenty-five thousand rupees, whichever is less 11. Thus, compliance of second proviso to Section 15 of the Act is mandatory. Admittedly, petitioner did not deposit the statutory amount within the specified period. Under these circumstances, State Commission rightly dismissed the appeal of the petitioner. We find no ground to disagree with the reasoning given by the State Commission. There is no infirmity or illegality in the impugned order passed by the State Commission. Present revision petition, under these circumstances, stands dismissed. 12. No order as to cost.

 
......................J
V.B. GUPTA
PRESIDING MEMBER
......................
REKHA GUPTA
MEMBER

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