Tripura

StateCommission

A/41/2017

Smt. Santa Banerjee Chakraborty - Complainant(s)

Versus

The Managing Director, Edelweiss Tokio Life Insurance Company Ltd. - Opp.Party(s)

Mr. Ratan Datta, Mr. Rupak Das

06 Sep 2017

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

 

Case No.A.41.2017

 

 

1. Smt. Santa Banerjee(Chakraborty),
   W/o Sri Dilip Kumar Chakraborty,
   Old Kalibari Lane, Near Skylark Club,
   Krishnanagar, Agartala, P.O. Agartala,
   District - West Tripura.

… … … … … Appellant/Complainant.

 

Vs

 

1. The Managing Director,
   Edelweiss Tokio Life Insurance Company Ltd.

Having the Registered Office at,
Edelweiss House, Off CST Road, Kalina,
Mumbai-400098.

… … … … … Respondent/Opposite Party.

 

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. SobhanaDatta,

Member,

State Commission, Tripura.

 

Mr. Narayan Chandra Sharma,

Member,

State Commission, Tripura.

 

 

 

 

For the Appellant:                                          Mr. Rupak Das, Adv.

For the Respondent:                                      Mr. Sampad Choudhury, Adv.

Date of Hearing & Delivery of Judgment:     06.09.2017.

 

 

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

 

 

U.B. Saha, J,

The instant appeal is directed against the judgment dated 04.04.2017 passed by the Ld. District Consumers Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No. C.C. 85 of 2016 whereby and whereunder the Ld. District Forum partly allowed the complaint petition filed by the appellant (hereinafter referred to as complainant) directing the respondent, the Managing Director, Edelweiss Tokio Life Insurance Company Ltd. (hereinafter referred to as opposite party/Insurance Company)to pay compensation amounting to Rs.5,000/- to the complainant  and also issue new policy certificate matching the signature of the petitioner.Along with the appeal, an application has also filed for condoning the delay of 87 days in preferring the appeal before this Commission against the aforesaid judgment.    

2. Heard Mr. Rupak Das, Ld. Counsel appearing for the appellant-complainant as well as Mr. Sampad Choudhury, Ld. Counsel appearing on behalf of the respondent-opposite party on instruction of the respondent-opposite party. In support of his appearance, he has submitted one letter of the respondent-opposite party wherein the Ld. Counsel Mr. Choudhury was requested to appear in the matter.
3. Facts needed to be discussed are as follows:-

The complainant, Smt. Santa Banerjee (Chakraborty) being attracted by the advertisement in good faith purchased one policy, bearing Policy No.200047429Efrom the opposite party Insurance company in the name of her minor daughter, namely, Miss Sudipta Chakraborty. The premium was fixed ofRs.1,50,000/- for a term of 15 years and the date of maturity was 26.05.2013 and accordingly, the complainant paid the aforesaid amount as premium by way of cheque bearing No.682506& 682507. After payment of the premium as stated (supra) and submission of the policy form, she had received the policy document from the opposite party by post, but after going through the same, she became surprisedto see that the signatures, which were shown in the proposal forms, were not at all matching with her actual signature.Apart from that, she also could recollect that the documents over which she had put her signatures were also not in the policy documents sent by the company-opposite party. Her husband also purchased one policy from the opposite party Edelweiss Tokio Life Insurance Company Ltd. and dispute arose in that case also for the false signature. The husband of the complainant informed their dissatisfaction and also gave legal notice,but the opposite party Insurance company did not take step for refund of the premium amount of Rs.1,50,000/-. Being aggrieved by the non-action of the opposite party, the complainant filed an application before the Ld. District Forum under Section 12 of the Consumer Protection Act, 1986.

4. Opposite party Edelweiss TokioLife Insurance Company Ltd. appeared and filed its written statement denying the claim. It is stated that the complainant after completely understanding the terms and conditions of the policy filled up the proposal form and signed it. Complainant had given a declaration stating that the contents of the proposal were read over and explained to her. Sheclaimed for refund of the amount without any cause. Therefore, the complaint is liable to be dismissed. 
5. Complainant submitted the Proposal Form, original Policy Documents and also submitted herstatement on affidavit.
6. Opposite party produced no oral or documentary evidence.
7. The Ld. District Forum after considering the evidence on record as well as the documents as available before it passed the impugned judgment.
8. Being aggrieved by the judgment of Ld. District Forum, the instant appeal is filed by the complainant along with a condonation petition for condoning the delay of 87 days as stated (supra).
9. In the condonation petition particularly in Paragraph-3, it is stated that “firstly, the Appellant was ignorant about the matter of appeal which can be done against the judgment passed by the Ld. District Forum, Secondly, your humble Petitioner is a retired person and now a days she is suffering from some illness and thus at the time of passing the Judgment she left the State of Tripura for her treatment purpose and thus she failed to take information about the Judgment. However, after returning to state she got the information about the judgment, obtain the copy and after going to same she met with her engaged counsel. She after going through the same advised her to prefer appeal. Thirdly; though the judgment was passed on 04-04-2017 but the copy of the same was handed over to the appellant after some days which may be excluded from the total period.”
10. Heard Mr. Rupak Das, Ld. Counsel for the appellant-complainant as well as Mr. Sampad Choudhury, Ld. Counsel appearing on behalf of the respondent-opposite party who objected to the prayer for condonation.
11. Mr. Das, Ld. Counsel while urging for condoning the delay of 87 days in preferring the appeal submits that the appellant-complainant had no knowledge about the impugned judgment passed by the Ld. District Forum till she returned to the State after her treatment and then she came to know about the judgment. He further submits that the judgment was handed over to the complainant after some days, which may be excluded from the total period. He has finally contended that while considering an application for condonation of delay, the Court has to take liberal approach and in support of his aforesaid contention, he has placed one judgment of the Hon’ble Supreme Court in EshaBhattacharjee Vs Mg.Commit. Of RaghunathpurNafar (Civil Appeal Nos.8183-8184 of 2013) [Arising out of S.L.P. (C) Nos.24868-24869 of 2011].
12. Per contra, Mr. Choudhury, Ld. Counsel while urging for dismissal of the condonation petition would contend that the Ld. Counsel for the appellant-complainant Mr. Rupak Das who himself received the copy of the judgment of the Ld. District Forum on 24.04.2017 though the copy of the judgment was ready on 05.04.2017. Therefore, it cannot be said that the complainant was not aware about the impugned judgment, as knowledge of the counsel is the knowledge of the party. He further submits that in the condonation petition, the complainant did not mention when she left the State of Tripura for her treatment and when she came to know about the impugned judgment. He also submits that in support of her contention that she was out of station for her treatment, no medical certificate and the prescription is submitted along with the condonation petition. He has finally contended that the statement of the appellant-complainant in her condonation petition is totally vague. He has relied upon a judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Secretary, State Council of Technical Education and Vocational Training Vs. Naresh Kumar Mohakud(Revision Petition No.3593 of 2014).In that case, the Hon’ble National Commission affirmed the order of the StateConsumer Disputes Redressal Commission, Odisha wherein the State Commission while dealing with a prayer for condonation stated, inter alia, “That the order was passed on 10-12-2013 and the appeal could have been filed but the petitioner, after approval of higher authorities and after consultation with the lawyer at Cuttack decided to challenge the order of the learned District Forum, the copy of the order on 10-12-2013 was obtained and after consultation with the advocate as well as higher authority, appeal was prepared and filed on 26-03-2014 after it being made ready. Hence, the delay of 60 days was caused due to official process and above reasons.” and ultimately, dismissed the Revision Petition.He has also relied upon the judgment of the Hon’ble Apex Court inAnshul Aggarwal Vs New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC), wherein the Hon’ble Apex Court observed as under:

“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.”

In CicilyKallarackalVs Vehicle Factory, IV (2012) CPJ 1(SC) 1, the Hon'ble Supreme Court observed as under:

“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.

13. 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 lexsedlex’ 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.”
14. ‘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".In the instant case, admittedly, the Ld. Counsel for the complainant Mr. Rupak Das received the copy of the impugned judgment on 24.04.2017 though the same was ready on 05.04.2017. Therefore, it can be said that it is the complainant’s lawyer who did not collect the copy of the judgment in time and not only that, according to the complainant, she was also not informed regarding the impugned judgment in time. In the condonation petition, she did not mention any date as to when she came to know about the judgment and when she met with her counsel who suggested her for preferring appeal.
15. On perusal of the condonation application, it would be seen that no attempt was made by the complainant to explain each and every daysdelay after the period prescribed for filing appeal against the impugned order had expired and not only that, she vaguely alleged that after return to the State, she got the information about the judgment and after obtaining the copy and going through the same, she met with her engaged counsel.
16. We have gone through the decision in EshaBhattacharjee(supra) wherein the Hon’ble Apex Court relying upon its earlier judgment set aside the order of the Division Bench of High Court of Calcutta wherein the Division Bench condoned the delay of 2449 days and thus, the said judgment in no way helps the complainant.
17. In view of the above, we are of the opinion that the appellant-complainant failed to explain the delay properly, rather suppressed some facts before us, particularly, regarding the receipt of the certified copy of the impugned judgment by the Ld. Counsel of her, namely, Rupak Das who is also the Counsel herein and received the impugned judgment on 24.04.2017. The reasons stated in the condonation petition elicit nothing satisfactorily to condone the delay in filing the appeal.

We have also gone through the impugned judgment as well as grounds stated in the memo of appeal, but we restrain us from expressing any opinion regarding the impugned judgment as we decline to condone the delay as prayed for.

          In the result, 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.

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura