Karnataka

Kolar

CC/5/2019

Smt.Shanthamma - Complainant(s)

Versus

The Branch Manager, Canara Bank - Opp.Party(s)

Sri.K.V.Srinivas

22 May 2019

ORDER

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 22^nd DAY OF MAY 2019

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., PRESIDENT

SMT. A.C. LALITHA, BAL, LLB.,  ……  LADY MEMBER

 

CONSUMER COMPLAINT NO. 05 OF 2019

Smt. Shanthamma,

W/o. N. Muniraju,

Aged About 45 Years,

R/at: Anche Muscoor Village,

Lakkur Hobli, Malur Taluk.

(Rep. by Sri. K.v. Srinivas, Advocate)                                             …. COMPLAINANT.

 

- V/s -

1) The Branch Manager,

Canara Bank, Chikka Tirupathi Branch,

Malur Taluk.

(Rep. by Sri. K. Ashoka, Advocate)

 

2) The Branch Manager,

United India Insurance Company

Limited, Malur.

(Rep. by Sri. B.S.Sathyanarayana, Advocate)

 

3) The Branch Manager,

United India Insurance Company

Limited, Divisional Office,

NSC Bose Road, Robertsonpet, KGF.

(Rep. by Sri. B.S.Sathyanarayana, Advocate)                              …. OPPOSITE PARTIES.

-: ORDERS ON IA NO.I :-

BY SRI. K.N. LAKSHMINARAYANA, PRESIDENT,

01.   The counsel for complainant has filed this application Under Section 5 of Limitation Act and prays to condone the delay in filing the case and pass such other order as this Forum deems fit in the circumstances of the case.

 

02.   The complainant has filed affidavit in support of the said IA and she has sworn that, she has taken diary loan of Rs.50,000/- from Canara Bank, Chikkatirupati Branch, Malur, for the purpose of purchase of cow, and purchased the cow, vide tag No.13948 and she insured the said cow vide policy bearing No.071581/47/13/01/00000068 for the period from 23.08.2013 to 22.08.2014.  On 27.09.2013 by illness the said cow was died and the same was brought to the notice of Canara Bank, Chikkatirupati Branch, Malur, for claiming the claim against the said demised cow.  The Branch Manager, United India Insurance Company Limited, Malur, visited and inspected the same and prepared a report at the spot.  The veterinary doctor has given his report on 21.10.2013.  On 03.10.2013 the Branch Manager, Canara Bank, Chikktirupathi Branch, Malur, has given a letter to the Branch Manager, United India Insurance Company Limited, Malur, to consider the claim form.  The veterinary certificate, i.e., form No.2 & 3 and treatment certificate dated: 20.10.2013 was also given by the Veterinary Doctor, Lakkur, Malur Taluk, to the Branch Manager, United India Insurance Company Limited, Malur.  On 23.04.2016 the complainant has also given petition to the Branch Manager, United India Insurance Company Limited, Malur and also to the Branch Manager, United India Insurance Company Limited, Divisional Branch, KGF, for payment of insurance amount for the death of a cow and the claim amount is not settled.  The complainant has visited several times in this regard to OPs office and requested the OPs to pay the claim amount and in spite of request both oral and writing made by the complainant the OPs did not settle the matter.  On 02.11.2018 the complainant issued legal notice to the OPs to settle the claim amount.  The OPs did not reply to the legal notice nor settled the amount.  The complainant is an illiterate and after the death of her cow she personally made several correspondences and submitted grievances on number of times and issued legal notices to the OPs.  The OPs taking her illiteracy as advantage have mislead and cheated her and there is some delay in filing the case and prays to condone the delay and if condoned no prejudice will be caused to OPs and on the other hand she will be put to great injustice and it leads to multiplicity of proceedings. 

 

03.   OP No.1 did not file any objections to the IA No.1.  The counsel for OP Nos.2 & 3 filed objections to the said IA No.1 contending that, the said application filed by the complainant is not maintainable either in law or on facts and the same deserves to be dismissed in limine.  These OPs admitted Para-1 of the affidavit in support of IA No.1 with respect to purchase of cow and the insurance policy of the said cow as contended by the complainant and rest of the averments of the said paras are all denied as false and so also denied the averments made in Para-2 about giving petition before the Branch Manager, United India Insurance Company Limited, Malur and so also the Branch Manager, United India Insurance Company Limited, Divisional Branch, KGF for payment of insurance amount for the death of cow dated: 03.10.2013 by the Branch Manager, Canara Bank, Chikkathirupati Branch, Malur, and admitted the claim petition given by the complainant dated: 23.04.2016 to OP Nos.2 & 3 for payment of the insurance amount for the death of the cow and till today the claim amount is not settled to the Bank for the reason of unreasonable delay in informing the claim and non-production of required documents.  These OPs denied the entire averments of Para-3 to 5 of the affidavit as false and put the complainant to prove the same.  These OPs have specifically contended that, as per Section 24-A(1) & (2) of Consumer Protection act, 1986, IA No.1 is not applicable.  The complainant has not explained fairly about how much delay has been caused in filing the above complaint and only stated that “there is some delay” and she has kept the period of delay under suspense and the present application is deserves to dismissed.  The alleged cow was expired on 21.10.2013 and the complainant has given requisition letter dated: 28.04.2016 to OP Nos.2 & 3 to process the claim of the insured cow which is after lapse of nearly three years and the complainant has approached the Forum after delay of more than five years and which is barred by limitation and the said delay is not based on any documentary evidence and also not explained any specific reason for each day delay caused or any substantial and bonafide reason and the said application deserves to be dismissed with exemplary cost. 

 

04.   The counsel for OP Nos.2 & 3 filed Memo and produced two citations.  The counsel for the complainant has also filed Memo with one citation.  Heard arguments on both sides. 

 

05.   Therefore the Points that do arise for our consideration are that:-

(1) Whether the complainant has made out sufficient cause and ground to allow IA No.1 as prayed?

 

(2)  What order?

 

06.   Our findings to the above stated points are:-

 

POINT No.1:    In the Negative

 

POINT No.2:    As per final order for the

following:-

 

REASONS

POINT NO.1 :-

07.   The complainant has filed Consumer Complaint on 24.01.2019 and prays to direct the OPs to pay the claim of the demised cow forthwith in the interest of law and justice.  The counsel for the complainant has filed the above said IA No.1 to condone the delay in filing the above complaint.  The complainant has filed affidavit in support of the said IA No.1 and she has sworn that, she has taken diary loan of Rs.50,000/- from Canara Bank, Chikkatirupati Branch, Malur, and purchased the cow, vide tag No.13948 and she insured the said cow vide policy bearing No.071581/47/13/01/00000068 for the period from 23.08.2013 to 22.08.2014 and the said cow was died on 27.09.2013 due to illness and the same was brought to the notice of Canara Bank, Chikkatirupati Branch, Malur, for claim against the said demised cow.  The Branch Manager, United India Insurance Company Limited, Malur, visited and inspected the same and prepared a report at the spot and the veterinary doctor has given his report on 21.10.2013.  On 03.10.2013 the Branch Manager, Canara Bank, Chikktirupathi Branch, Malur, has given a letter to the Branch Manager, United India Insurance Company Limited, Malur, to consider the claim form.  The veterinary certificate, i.e., form No.2 & 3 and treatment certificate dated: 20.10.2013 was also given by the Veterinary Doctor, Lakkur, Malur Taluk, to the Branch Manager, United India Insurance Company Limited, Malur.  On 23.04.2016 the complainant has also given petition to the Branch Manager, United India Insurance Company Limited, Malur and also to the Branch Manager, United India Insurance Company Limited, Divisional Branch, KGF, for payment of insurance amount for the death of a cow and the claim amount is not settled.  The complainant has visited several times to OPs office and requested the OPs to pay the claim amount and in spite of request both oral and writing made by the complainant the OPs did not settle the matter and on 02.11.2018 the complainant issued legal notice to the OPs to settle the claim amount, the OPs did not reply to the legal notice nor settled the amount.

 

08.   Per contra, the counsel for OP Nos.2 & 3 filed objection to the said IA No.1 and resisted the averments of the affidavit in support of IA No.1 and admitted about the diary loan of Rs.50,000/- and purchase of cow vide tag No.13948 and the same was insured vide policy No.071581/47/13/01/00000068 for the period from 22.08.2013 to 22.08.2014 and so also admitted about the petition given by the complainant dated: 23.04.2016 to the Branch Manager, United India Insurance Company Limited, Malur and also to the Branch Manager, United India Insurance Company Limited, Divisional Branch, KGF, for payment of insurance amount for the death of cow and the claim amount is not settled to the complainant for the reason that, unreasonable delay in informing the claim and non-production of required documents.

 

09.   The OPs were specifically denied the other allegations made in Para-2 to 5 of the affidavit in support of IA No.1 as false and put the complainant to prove the same i.e., due to the illness the said cow was died and the same was brought to the notice of Canara Bank, Chikkatirupati Branch, Malur, for claiming the claim against the demise of the said cow under the above said insurance policy, the Branch Manager, United India Insurance Company Limited, Malur, visited and inspected the same and prepared a report at the spot, the veterinary doctor has given his report on 21.10.2013 regarding demise of the said cow, that, the Branch Manager, Canara Bank, Chikktirupathi Branch, Malur, has given a letter dated: 03.102013 to the Branch Manager, United India Insurance Company Limited, Malur, to consider claim form for Dairy loan granted to the petitioner, the veterinary certificate, i.e., form No.2 & 3 and treatment certificate dated: 20.10.2013 was also given by the Doctor veterinary Hospital.  Lakkur Malur Taluk to the Branch Manager, United India Insurance Company Limited, Malur, that the complainant had visited several times in this regard to OPs office and requested the OPs to pay the claim amount of the demised cow and in spite of request both oral and writing made by complainant to OPs neither given information nor paid the claim amount to the complainant”, that the complainant is an illiterate, after the death of the cow, complainant personally met the OPs and submitted her grievances number of times, even at last complainant issued a legal notice to the OPs on 02.11.2018, the OPs taking complainant’s illiteracy as advantage mis-leaded and cheated the complainant and there is some delay in filing this case before this Hon’ble Forum, condone the delay in filing this case and no prejudice will be caused to the OPs, otherwise complainant will be put to great injustice and it leads to multiplicity of proceedings are all denied as false and put the complainant to strict proof of the same.  But the complainant has not produced any reliable documents to support IA No.1.

 

10.   The OPs have specifically contended that, the provision invoked in the present application is not applicable in view of Section 24-A(1) & (2) of the Consumer Protection Act, 1986.  However the said IA No.1, Under Section 5 of Limitation Act is maintainable and the said contention of the OPs is not sustainable and it is goes in vain.   On perusal of the documents produced by the complainant i.e., form-1 & 2 and treatment certificate it reveals about the over-writing with respect to the month and so also with respect to the treatment certificate and the said document i.e., form-1 & 2 does not bare the date and the treatment certificate was issued on 21.10.2013 though the said alleged cow was died on 27.09.2013.  The complainant has not produced the documents as required by these OPs.  Further it is relevant to state here that, the complainant has not at all produced any document to show that, the letter issued by OP No.1 Branch was served on OP No.2 & 3 to take steps as per the letter of OP No.1 dated: 03.10.2013.  The complainant has not produced the copy of the earlier letter and the said earlier letter as stated in document No.1 and prima facie the said defects are found in the said documents.  On perusal of document No.5 dated: 23.04.2016 i.e., the claim applicant and it was rejected by OP No.2 for the reason that, unreasonable delay in informing the claim and non-production of required documents.  The complainant has also stated in her affidavit in support of IA No.1 that, OP No.1 Bank has submitted claim form dated: 03.10.2013 for the death of her cow dated: 27.09.2013 before the Branch Manager, United India Insurance Company Limited, Malur and in spite of that the complainant neglected the matter in approaching OP No.2 & 3 at appropriate time and thereafter the complainant herself has filed complaint before OP Nos.2 & 3 only on 23.04.2016 and approached the Forum only on 24.01.2019.  Hence there is an inordinate delay in filing the complaint and the long delay cannot be acceptable without giving day to day explanation and the contention of the illiteracy of the complainant is not helpful to condone the inordinate delay.

 

11.   Now it is relevant to state here that, the said alleged cow was died on 27.09.2013 and the claim was made on 23.04.2016 as per document No.5 and the claim was made after lapse of three years of the death of the cow and the present complaint was filed on 24.01.2019 after inordinate delay of five years, but the complainant has not shown any reasons for making a claim and not satisfactorily explained and sufficient cause is not shown to condone the delay.  The delay application has to be filed with utmost care and caution and no cogent and reasonable grounds are made out delay will not be condoned as reported in 2018(4) Page 116 of Hon’ble National Commission.  The complainant has failed to give sufficient cause by giving cogent reasons to justify to condone the inordinate delay of five years.  The Hon’ble National Commission has also held that, day to day delay is to be explained as reported in 2018 CPR 3 page 209.  But here in this case the complainant has failed to explain the delay of five years to condone the delay.  Further the Hon’ble National Commission has also held that, the applicant fails to made out any cause much less sufficient cause for condonation of inordinate delay in filing the application, the same is liable to be dismissed as reported in 2018(4) CPR page 314 (NC).

 

12.   On perusal of the affidavit of the complainant in support of IA No.1, the complainant has not at all stated how many days of delay in filing the complaint and so also she has not at all stated any sufficient cause and reasons to condone the inordinate delay.  The complainant has sworn in her affidavit in support of the IA No.1 that, there is some delay in filing this case.  But on perusal of the said affidavit it reveals that, the said cow was died on 27.09.2013 and the complainant approached this OPs only on 23.04.2016, after lapse of nearly three years and filed the present Consumer Complaint on 24.01.2019 i.e., after delay of more than five years and there is no sufficient cause and reasons are made out by the complainant to condone the delay of five years and mere issuing the notice on 02.11.2018 does not give raise fresh cause of action, and mere submission of legal notice to the OPs, it does not arrest the time, in this regard we relay the judgment of Hon’ble Chhattisgarh State Commission reported in 2017(4) CPJ page 19B.  Further as per the Section 24A(1) of the Consumer Protection Act, 1986 the complaint is to be filed within two years from the date on which cause of action arisen and as per Section 24A(2) the complaint may be entertained after the said period specified, if the complainant satisfies that he had sufficient cause for not filing the complaint within such period and provided that, no such complaint shall be entertained unless as the case may be records its reason for condoning the delay, but here in this case no such cause has been shown by the complainant to condone the inordinate delay of five years. 

 

13.   In this regard, we also relay the Hon’ble Apex Court judgment reported in 2010(4) CPJ Page 7.  Wherein, their lordship has discussed the matter with respect to limitation and held that, no sufficient cause shown for condoning the delay and no satisfactory explanation given rejection of the application by the Hon’ble State Commission up held by the Hon’ble National Commission and the Hon’ble Apex Court has held that, no fault found in the orders passed by the Hon’ble National Commission and so also we relay judgment of the Hon’ble National Commission reported in 2019(1) CPR Page 1 (NC).  Wherein their lordship had held that, it is a settled principle of law that the court, while dealing with the applications for condonation of delay has to adopt liberal attitude and it is also a settled principle of law that it is for the Applicant to explain each and every day’s delay and give reasonable grounds for such delay and where the delay remains unexplained, or the grounds given are unconvincing, the Courts are justified in refusing to condone the delay and rejecting the Applications and Revision Petitions on the ground being filed beyond the period of limitation and their lordship has also relayed the Hon’ble Supreme Court judgment reported in AIR 1962 Page 361, their lordship has held that, the condonation of delay is not a matter of right of applicants and they required to give proof of sufficient cause and if sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone and so also relayed judgment of Hon’ble Apex Court reported in I (2009) CLT 188 and their lordship held that, “in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained and this is the basic test which needs to be applied”.  We relay another citation of the Hon’ble National Commission reported in 2019(1) CPR Page 789, wherein their lordship has held that, “though liberal interpretation should be given in delay condonation matters and it cannot be condoned for want of details of specific dates”.  In this case the complainant has not at all stated sufficient cause and reasons and so also not at all stated details of specific days to condone the delay and the complainant herself did not know how many days of delay in filing their Consumer Complaint.  Further the Hon’ble National Commission has held that, once the period of limitation starts it cannot be enlarged or extended for prolonged correspondences between the parties as reported in 2011 (4) CPJ 114 (NC) and lastly the Hon’ble National Commission has held that, when there is no reasonable, justified ground is mentioned in the delay condonation application, the same is liable to be dismissed as reported in 2018(4) CPR Page 594 (NC).  The principles of the above said citations are attracted to the facts and circumstances of the case on hand to dismiss IA No.1, as the reasons for making a claim is not satisfactorily explained and sufficient cause is not shown by the complainant to condone the delay of five years and day to day delay is not explained. 

 

14.   The learned counsel for the OP Nos.2 & 3 have also relayed two judgments reported in First Appeal No.189/2008 and First Appeal No.117/2014.  The said citations are also supported to the arguments addressed by the counsel for OP Nos.2 & 3 to reject IA No.1.  The principles of the above said citations are attracted to the facts and circumstances of the case on hand to reject the said application filed by the complainant to condone the inordinate delay of about five years as the complainant has failed to give sufficient cause and cogent reasons to justify the inordinate delay and the said application is a bald application and such application is to be dismissed in limine. 

 

15.   The counsel for complainant has also relayed judgment of Hon’ble Supreme Court of India in Civil Appeal No.4767 of 2019.  Wherein the Hon’ble Apex Court has observed that, “marginal delays are not being condoned by the NCDRC on the ground that the Consumer Protection Act 1986 stipulates a period within which a consumer complaint has to be disposed of, though the Act stipulates a period for disposing of a consumer complaint, it is also a sobering reflection that complaints cannot be disposed of due to non-availability of resources and infrastructure and in this background, it is harsh to penalize a bonafide litigant for marginal delays that may occur in the judicial process.  The Consumer Fora should bear this in mind so that, the ends of justice are not defeated”.  But here in this case the delay is not a marginal and it is about five years and hence the above said judgment is not attracted to the facts and circumstances of the case on hand with respect to IA No.1 and the said judgment relayed by the counsel for the complainant is goes in vain.  Hence under these circumstances as discussed above we answer point No.1 is in the Negative.

 

POINT No.2:-

16.   In view of our findings on Point No.1 and the discussion made thereon, we proceed to pass the following:-

ORDER

01.   The I.A. No. I filed by the complainant Under Section 5 of Limitation Act dated: 24.01.2019 is hereby dismissed and consequently the complaint filed by the complainant is also dismissed.  No order as to costs.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 22^nd DAY OF MAY 2019)

 

 

 

   LADY MEMBER                         PRESIDENT