Karnataka

Kolar

CC/34/2018

Smt.P.A.Jothi - Complainant(s)

Versus

The Manager,United India Insurance Co.Ltd - Opp.Party(s)

18 Dec 2018

ORDER

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

 

Dated: 18^th DAY OF DECEMBER 2018

PRESENT

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

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

 

CONSUMER COMPLAINT NO. 34 OF 2018

Smt. P.A. Jothi,

W/o. late K.M. Subramani,

R.P. Layout, Ward No.09,

Maruthi Extension,

Malur Taluk,

Kolar District, Kolar.

(Rep. by Sri.M.S.Badrinarayana, Advocate)                                   ….  PETITIONER.

 

- V/s –

1) The Manager,

United India Insurance Company

Limited, 1^st Floor, Satyanarayana

Building, Robertsonpet, K.G.F.

 

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

 

2) The Senior Divisional Manager,

M/s. Canara Bank, SME Branch, Malur.

(Rep. by Sri. R.A. Mohan, Advocate)                                           …. DEFENDENTS.

 

-: ORDER ON IA NO.III :-

BY SRI. K.N. LAKSHMINARAYANA, PRESIDENT,

01.   The counsel for the complainant has filed IA-III Under Section 5 of the Limitation Act along with the affidavit of the petitioner in support of the said IA and prays to condone the delay if any in filing the complaint and allow the application in the ends of justice and equity. 

 

02.   The complainant has sworn in her affidavit that, her husband purchased insurance policy with OP No.1 at the time of construction of the house and the same has been deposited with Op No.2, Canara Bank at Malur.  Later herself, her husband and others met with an accident within the jurisdiction of Tumkur Police Limits and her husband was died due to the said accident.  The complainant was seriously injured in the said accident and admitted as in-patient and she was unable to inform the same to claim the benefit of the insurance policy.  As per the terms and conditions of the policy she has approached the Ops claiming the death benefits.  The insurance authorities stated that delay has been caused, to escape from the clutches of the law and prays to condone the delay in filing the complaint.  The documents produced by her prove the ill-health and the death of her husband and prays to allow the application.

 

03.   OP No.1 has filed objection to the said IA and contended that, the said application is not maintainable either in law or on facts and it deserves to be dismissed in limine.  The OP No.1 has denied Para-2 & 3 of the affidavit for condonation of delay in filing the complaint as false and put the complainant to strict proof of the same.  The OP No.1 has contended that, the complainant is held responsible to explain the cause for the delay in filing the complaint.  The application filed Under section 5 of the Limitation Act to condone the delay, is not explaining specific number of days of delay or any specific dates, reasons or any substantial bonafied reasons to condone the delay.  The said application is vague and deserves to be dismissed.  There is a delay of two years from the date of alleged incident.  The complainant has filed the above complaint after lapse of exorbitant delay of more than three years and prays to dismiss the said IA with exemplary costs.

 

04.   OP No.2 has also filed objection to the said IA and contended that, the complainant has aware of filing of the alleged complaint and issuing legal notice.  OP Nos.1 & 2 also aware of filing of the complaint and after 37 months at beleated stage by suppressing the facts without furnishing any documents.  OP No.2 has also taken up the said contention earlier and prays to dismiss the said IA with exemplary costs.

 

05.   Now the points that does arise for consideration are that:-

POINT NO.1:- Whether the complainant has made out sufficient cause and grounds to condone the delay and to allow IA-III as prayed?

 

POINT NO.2:-   What order?

 

06.   The findings on the above points are that:-

POINT NO.1:-  In the Negative

POINT NO.2:-   As per the final order

                                        for the following:-

 

REASONS

POINT NO.1:- 

07.   The complainant has filed this complaint against the opposite parties for claiming assured sum of the policy with 18% interest on Rs.10,00,000/- with costs.       The OPs appeared through their counsel and contested the matter by filing objection to the said complaint.  Both parties were also filed their affidavit evidence by way of examination-in-chief and when the matter was posted for arguments on 16.08.2018 and there was no representation and the case was adjourned to 23.08.2018, on that day the complainant has filed three IAs.  IA No.III is an application to condone the delay in filing the complaint and prays to allow the said application. 

 

08.   On the other hand the OPs were filed objection to the said IA No.III and opposed the said IA No.III.  OP No.1 has contended that, the complainant has not explained the specific number of days of delay or any specific days or reasons to condone the delay and it is a vague application.  The OP No.2 has also contended that, the IA No.III is belated and filed the said IA after 37 months by suppressing the facts without producing documents.  The OPs prays to dismiss the said IA No.III.

 

09.   The complainant has filed affidavit to support the said IA No.III and she has sworn that, her husband has purchased the insurance policy with the respondent at the time of construction of the house and the same was deposited with respondent No.2 at Malur.  Later on the complainant, her husband and others met with an accident at the jurisdiction of Tumkur police limits.  In the said accident her husband was died and she was seriously injured and she was admitted as an inpatient and she could not inform the same to claim the benefit under the insurance policy.  After recovery, she approached the respondents and the respondents authority issued endorsement stating that, there is a delay has been caused and she is not entitled for the benefit to escape from the clutches of the law.  The Bank authorities also neglected to inform the death of the policy holder and she is entitled for the benefit.

 

10.   On perusal of the said affidavit it does not discloses when the accident was caused and so also about the policy details and how many days she was admitted to the hospital as an inpatient and when she was recovered and so also it does not disclose about how many days of delay in filing the complaint.  The complainant has also not produced the alleged policy also.  On perusal of the case file, the complainant has produced Xerox copy of the FIR which reveals about the accident that took place on 04.11.2014 at about 03.00 PM in the early house near NH-75 road, Amruthur police station, Kunigal taluk, Tumkur District and the husband of the complainant by name Sri. K.M.Subramani was died at the spot.

 

11.   The complainant has produced cover note issued by OP No.1 vide reference No.071500/FIRE CLM/2017-2018, dated: 19.09.2016 wherein the said cover note reveals that, the OP No.1 has received the claim intimation of the policy No.07150046119000000067 of Sri. K.M. Subramani, officially on 26.07.2017, about the death of the insured Sri. K.M. Subramani who died on 04.11.2014 in road accident and there is an inordinate delay of 32 months in reporting the claim and as per the policy condition the claim has to be reported immediately on the date of accident and the claim was not entertained and closed the claim file.  The complainant has also issued notice to OP No.2 dated: 24.07.2017 and so also issued another notice to OPs on 13.11.2017. 

 

12.   The complainant/petitioner has also produced her medical certificate issued by Dr. Shibu V Pillai, HOD and Senior consultant Neurosurgeon dated: 28.11.2015 wherein it reveals that, the complainant Mrs. Jyothi has taken treatment at Narayana Hrudayalaya Multi Specialty Hospital vide patient ID : 10020000731218 and she was admitted on 30.11.2014 and diagnosed to have Traumatic L1 fracture with cord compression.  She underwent surgery – L1, L2 laminectomy and D11-L3 fusion using titanium pedicle screws, rods and bone graft on 09.12.2014 and she was discharged on 12.12.2014.  On 12.12.2018 the complainant has filed application at the office with one document of the said Narayana Hrudayalaya Limited. The said document has been perused in the ends of justice and equity, but the document does not disclose the dates for taking further treatment after 12.12.2014 and it reveals that, she was reviewed as an out-patient on 11.12.2018 after directing the complainant to produce documents and hence the said document also does not help for the complainant to condone the inordinate delay. 

 

13.   On perusal of the copy of the FIR it establishes that the alleged accident was occurred on 04.11.2014, on that day itself the husband of the complainant was died and she has discharged on 12.12.2014 and immediately shoe would have been approached the OP, but she has approached OP No.1 only on 26.07.2017 and thereafter she has issued notices to OPs on 24.07.2017 and 13.11.2017 and she has approached the forum only on 02.04.2018.  The said fact reveals that, the complainant has slept over the matter and she has opened her eyes only on 26.07.2017, after delay of 32 months and issued notices to OPs on 16.10.2017 and on 13.11.2017.  But to condone the delay of 32 months except the medical certificate for taking treatment by the complainant from 30.11.2014 to 12.12.2014 she has not produced any other supporting documents and she has also not produced any cogent evidence to substantiate her defense to condone the each days delay from 12.12.2014 to till the date of issuance of notices to OPs on 26.07.2017.  On perusal of the affidavit evidence also it does not disclose sufficient cause and reasons to condone the inordinate delay. 

 

14.   It is no doubt true that such condonation of delay application is to be liberally viewed, but here in this case the complainant has not shown sufficient cause to condone the inordinate delay of 02 years 10 months and 04 days in filing the complaint as on the date of cause of action i.e., on 04.11.2014 when the accident was occurred till approaching OP on 26.07.2017.  Under Section 24A of the Consumer Protection Act, the Forum, dismissed the complaint filed beyond the period of 2 years from cause of action, if the sufficient cause is not shown for the delay.  Hence the complaint is time barred and it is to be dismissed as the complainant has failed to show sufficient cause and reasons to condone the delay.  Further IA No.III is a bald application and it does not disclose how many days of delay in filing the complaint and there is no bonafide reason to condone the delay and it is to be dismissed in limine as there is a gross negligence is imputable to the petitioner/complainant and mere sending notices does not give rise to fresh cause of action.  The complainant approached OP No.1 for the death benefit of her husband after 32 months delay and approached the Forum on 02.04.2018 without producing relevant documents for continuous cause of action. 

 

15.   In this regard I relay judgment reported in 2017 (IV) CPJ 442 (NC) wherein his lordship has held that, “sufficient cause” cannot be construed liberally if negligence, inaction, or lack of bonofides are attributable to party, praying for exercise of such discretion in its favour.  Further I relay another citation reported in 2018 (III) CPR Page 209 (NC), wherein his lordship has held that, day to day delay in filing a case should be explained and unexplained delay does not deserve to be condoned and his lordship has also relied Hon’ble Apex Court judgment in dismissing the Revision Petition.  The principles of the said citations are applicable to the facts and circumstances of the case on hand.

 

16.   Hence under these circumstances as discussed above, the complainant has failed to explain the day to day delay by producing documents nor by examining any cogent evidence for inordinate delay in filing the complaint to the satisfaction of the Forum.  Hence as discussed above, IA No.III filed by the complainant is to be dismissed and accordingly I answer Point No.1 is in the Negative.

 

POINT No.2:-

17.   In view of the finding on Point No.1 and the discussions made thereon, I proceed to pass the following:-

ORDER

01.   IA No.III filed by the petitioner/complainant, Under Section 5 of the Limitation Act is dismissed.  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 18^th DAY OF DECEMBER 2018)

 

 

 

 

LADY MEMBER                                PRESIDENT