Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
We heard Mr.Ganesh Shirke, Advocate for the applicant/complainant and Mr.R.M. Bhandari, Advocate for the non-applicant/opponent.
2. This application for condonation of delay is filed subsequent to filing of complaint in view of judgement of the Apex Court in the case of Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd. , III (2009) CPJ 75 (SC). It is a case of alleged deficiency in service on the part of Insurance Company for arbitrarily repudiating the insurance claim. The insurance claim arose on account of damage caused to the machinery in the flood of 26th July 2005. The insurance claim is repudiated by letter dated 09/08/2006 and thereafter, within two years therefrom the consumer complaint was filed on 06/02/2008. However, in view of above referred decision of the Apex Court, since cause of action could arose on the date of event i.e. 26/07/2005, the complainant preferred to make application for condonation of delay because the law relating to arising of the cause of action, as till then understood, the cause of action would arise on repudiation of the insurance claim; found erroneous. Therefore, they preferred this application for condonation of delay and sought condonation of delay of one year and twelve days accordingly.
3. Learned Counsel appearing for the non-applicant/opponent opposed this application as per his reply and particularly stating that delay is not satisfactorily explained.
4. It is a fact that till decision in the case of Kandimala, supra, arrived, the consumer complaints of the similar clause of action were entertained as on the basis of date of repudiation giving the cause of action. The provisions of Section 24-A of the Consumer Protection Act, 1986 were applied accordingly in the light of similar provision per Article 54 of Limitation Act, 1963, particularly, its second part. However, the scenario was completely changed after the law was explained by the Apex Court in the case of In re Kandimala, supra. Therefore, the reasons mentioned by the applicant/complainant, in the given circumstances, rest upon the erroneous belief of interpretation of the law and therefore, once the picture was made clear by the Apex Court, supra, they preferred to make this application seeking condonation of delay. We find, in this background, the delay is satisfactorily explained.
5. Learned Counsel appearing for the non-applicant/opponent submitted few rulings viz. (1) Oriental Aroma Chemical Industries Ltd. V/s. Gujrat Industrial Development Corporation & Anr., (2010)5 SCC 459. This case is distinguishable since the case before us is not of making any false statement; (2) M.R. Thavare V/s. V.S. Amin & Anr., I(2012) CPJ 300 (NC). It was a case where delay was tried to be explained on the basis of medical report, but it was found that since ailment shown does not cover the period of delay, medical reports submitted were not held sufficient to condone the delay ; (3) Anant Shanker Jadhav V/s. Bhasker Gajanan Kadne, I(2012) CPJ 304 (NC) where the reasons put forth was that the settlement efforts of the parties gave a false hope and which resulted into delay. The case is distinguishable on the facts. Same is the case in respect of decision in Pundlik Jalam Patil (dead) by LRs. V/s. Executive Engineer, Jalgaon Medium Project & Anr., (2008) 17 SCC 448, where mere entering into lengthy correspondence was not treated as ground for condonation of delay and on the basis of National Insurance Co. Ltd. & Anr. V/s. Ajmer Singh Kushwaha, I(2012) CPJ 302 (NC), the proposition tried to be advanced is that each day’s delay has to be properly explained. This proposition is to be considered in the light of provisions of Section 24-A of the Consumer Protection Act, 1986 and particularly, to advance cause of substantial justice. A useful reference on the point can be made to Apex Court decision in the matter of M.K. Prasad V/s. P.Arumugam, (2001) 6 SCC 176 and also Baburao Deorao Wankhede V/s. Sewa Sahakari Sanstha and anr., 1989 Mh.L.R. 1144..
6. For the reasons stated above, we find that the applicant/complainant has shown sufficient reason to condone the delay and condonation of delay in this case in the background referred above is necessary to do substantial justice to the parties and to avoid risk of failure of justice. We hold accordingly and pass the following order :-
-: ORDER :-
1. Application is allowed and delay in filing the complaint stands condoned.
2. Both parties are left to bear their own costs.
Pronounced
Dated 6th March 2012.
