Tripura

StateCommission

RP/1/2015

Smt. Mousumi Chakraborty & 2 others - Complainant(s)

Versus

The Oriental Insurance Company Limited. - Opp.Party(s)

S.Banik, D.Bhattacharya, S.Saha

07 May 2015

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

 

REVISION PETITION No.RP/1/2015.

 

1. Smt. Mousumi Chakraborty,

Wife of Late Goutam Chakraborty.

 

2. Smt. Sretha Chakraborty,

Daughter of Late Goutam Chakraborty.

 

3. Ssi Pathikrit Chakraborty,

Son of Late Goutam Chakraborty.

All are the resident of Dhaleswar, Agartala,

P.S-East Agartala, Dist. West Tripura.

                                     ….    ….    ….    ….    Appellants.

                   Vs

The Oriental Insurance Company Limited,

44/2, Central Road, Agartala,

Dist. West Tripura, P.S-West Agartala.

Represented by its Divisional Manager.

                                    ….    ….    ….    ….    Respondent.

 

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

               

 

For the Appellants    :      Mr.S.Banik,Adv., Mr.S.Saha,Adv. And            

                                     Mr.D.Bhattacharjee,Adv.

          For the respondent   :      Mr.B.Chakraborty,Adv.

                                         

Date of Hearing         :     07.05.2015.

Date of delivery of Judgment  : 27.05.2015.

             

 

J U D G M E N T

 

S.Baidya,J,

            This Revision Petition filed on 17.03.2015 under Section 17(1)(b) of the C.P.Act, 1986 by the petitioners is directed against the order dated 16.02.2015 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in Misc. case No.08 of 2014 arising out of case No.C.C.77/2014 whereby the Ld. District Forum rejected the application for condonation of delay filed by the complainants, the petitioners herein for condoning the delay of 985 days delay in filing the complaint under Section 12 of the C.P.Act and also for non-admitting the complaint.        

2. The case of the petitioners/revisionists, in brief, is that the petitioners being the complainants filed the complaint under Section 12 of the C.P.Act, 1986 before the Ld. District Forum for deficiency in service as well as unfair trade practice against the respondent along with an application for condoning the delay in filing the said complaint. It is also stated that husband of the petitioner No-1 and the father of the petitioner No-2 and 3 died due to a motor vehicle accident on 17.01.2010 and after the death of the deceased Goutam Chakraborty the petitioner herein on 20.12.2010 filed a claim application under Section 166 of the M.V.Act, 1988 before the Ld. Motor Accident Claims Tribunal, Court No-3, West Tripura, Agartala for compensation, but after completion of hearing the Ld. Tribunal on 31.08.2013 dismissed the claim of the petitioners with an observation that the said claim petition is not maintainable before the M.A.C. Tribunal.                                                 
3. It is also stated that thereafter a demand notice was served upon the respondent on behalf of the petitioners claiming payment of P.A.Coverage amount of Rs.2,00,000/- and at this, the respondent asked for some documents and thereafter on receiving the certified copy of the documents the learned counsel for the petitioners communicated the same in the official address of the respondent and also requested for payment of P.A. Coverage amount, but the respondent did not make any reply and thereafter finding no alternative, the petitioners being the complainants lodged a complaint registered as C.C.77/2014 along with an application for condoning the delay in filing the said complaint before the Ld.District Forum and the condonation application has been registered as Misc. case No-08/2014.
4. It is also stated that on receipt of the notice, the O.P. i.e. Insurance Company appeared in the Misc. case and contested the condonation application by filing the written objection and after hearing the parties the Ld. District Forum vide order dated 16.02.2015 rejected the condonation application filed by the petitioners and thereby also dismissed the complaint being not admissible.            
5.  That being aggrieved by and dissatisfied with the impugned order dated 16.02.2015 passed in Misc. case No-08/2014 arising out of C.C.77/2014 by the Ld. District Forum, the petitioners have preferred the instant revision petition challenging the legality, propriety and justifiability of the said order on the grounds that the Ld. Forum failed to consider that choosing of wrong Forum is a good ground for condoning the delay, that the Ld. Forum is not correct in calculating that after excluding the perod of delay caused for choosing wrong Forum, the complaint could not be filed within the period of limitation, that the Ld. Forum failed to appreciate the aim and object of the C.P.Act, 1986 and that the Ld. Forum has committed serious illegality in law and in fact while determining the point involved and therefore, erroneously rejected the application for condonation of delay by the impugned order which is not sustainable in the eye of law and is liable to be set aside by allowing the revision petition.           

Points for consideration.

6.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in rejecting the application for condonation of delay by the impugned order and (2) whether the order under challenge in this revision is liable to be set aside.      

                         Decision with Reasons.

7.  Both the points are taken up together for the sake of convenience and brevity.
8. The learned counsel Mr.S.Saha appearing for the petitioners/revisionists submitted that the petitioners being the complainants lodged a complaint under Section 12 of the Consumer Protection Act, 1986 along with an application praying for condonation of delay in lodging the complaint before the Ld. District Forum, West Tripura, Agartala. He also submitted that the cause of action of the incident involved in the case arose on 17.01.2010, but due to the choosing of a wrong Forum, the petitioners filed a claim application under Section 166 of the M.V.Act, 1988 before the Member, MAC Tribunal, West Tripura, Agartala on 20.12.2010, but the Ld. MAC Tribunal by a judgment dated 31.08.2013 dismissed the said MAC case bearing No-TS(MAC)-446/2010 being not maintainable and thereafter, the petitioners being the complainants lodged the complaint under Section 12 of the Consumer Protection Act, 1986 before the Ld. District Forum on 26.09.2014 along with an application under Section 5 of the Limitation Act read with Section 24A of the C.P.Act, 1986 praying for condonation of delay in lodging the complaint. He also submitted that the petitioners in the said condonation application have prayed for excluding the period consumed for choosing the wrong Forum. He also submitted that there is a specific provision in the Limitation Act, 1963 and that is under Section 14 of the said Act for exclusion of the period consumed for choosing a wrong Forum.   
9. The learned counsel for the petitioners then submitted that under Section 24A of the C.P.Act, 1986 the period of limitation for lodging a complaint before the Ld. District Forum or the State Commission or the National Commission is two years from the date of accrual of the cause of action. He also submitted that if the period consumed for choosing the wrong Furan is excluded from the total period of delay in lodging the complaint before the Ld. District Forum, it would be very much evident that the complaint under Section 12 of the C.P.Act, 1986 has been lodged by the petitioners as complainants within the limitation period of two years from the date of accrual of the cause of action which arose on 17.01.2010. He also submitted that choosing of a wrong Forum on the advice of the advocate is undoubtedly a sufficient cause for condoning the delay as provided under Section 24 A (2) of the C.P.Act, 1986. He further submitted that a claimant for the wrong advice of his learned counsel should not be suffered because choosing of a wrong Forum for lodging a claim application, as in the instant case, was the responsibility of the learned counsel and for that a claimant should not be penalized for a fault not of his own.       
10. The learned counsel for the petitioners also submitted that the Ld. District Forum failed to appreciate this facts and circumstances of the case and arrived at the wrong conclusion and thereby rejected the application for condonation of delay by the impugned order erroneously which cannot be sustained in the eye of law and is liable to be set aside and the instant revision petition is, therefore, liable to be allowed.
11. The learned counsel for the O.P. submitted that the Ld. District Forum elaborately discussed over the matter of condoning the delay in lodging the complaint by the petitioners-complainants. He also submitted that the Ld. Member of the MAC Tribunal dismissed the MAC case by a judgment dated 31.08.2013 and thereafter, the present petitioners being the complainants lodged the complaint under Section 12 of the C.P.Act before the Ld. District Forum on 26.09.2014 i.e. after the lapse of about more than one year. He also submitted that the petitioners could not justify as to why such delay of more than one year has been caused in lodging the complaint after the dismissal of the MAC case by the MAC Tribunal. He also submitted that as the petitioners failed to explain such delay properly, the Ld. District Forum has not been satisfied with the grounds as stated in the condonation application and accordingly, dismissed the application for condonation of delay by the impugned order dated 16.02.2015 passed in C.C.(Misc)-08/2014 arising out of C.C.-77/2014. He also submitted that as the order of rejection of the condonation application by the Ld. District Forum is based on well reasoning and as there is no legal infirmity in the impugned order, the revision petition being devoid of any merit should be dismissed and the impugned order should be upheld.
12. We have gone through the impugned order dated 16.02.2015, the condonation application filed in the District Forum and the copy of the judgment passed by the MAC Tribunal. We have considered the submissions made by the learned counsels of both sides. In the instant revision case, the petitioners have challenged the legality, propriety and justifiability of the impugned order. Admittedly, the Consumer Protection Act, 1986 is a consumer-friendly legislation. It is also settled principle of law that no litigant public should suffer for a fault not of his own, but of his learned counsel. It is also admitted fact that Section 14 of the Limitation Act deals with the exclusion of a limitation-period consumed for choosing of a wrong Forum, but no such provision like Section 14 of the Limitation Act has been incorporated specifically in the C.P.Act, 1986. It is also admitted position that Section 5 of the Limitation Act is not applicable in the Consumer Fora dealing with the cases under the C.P.Act, 1986. But Section 24A(2) of the C.P.Act, 1986 provides for entertaining a complaint lodged under the said Act after condoning the delay, if the complainants had sufficient cause for not filing the complaint within the limitation period of two years from the date of accrual of the cause of action. The expression ‘sufficient cause’ includes various grounds for condoning the delay. The choosing of a wrong Forum on the advice of the learned counsel of the claimants’, according to us, can be considered as sufficient cause for getting the period of delay consumed for choosing the wrong Forum condoned.  
13. Under Section 24A of the C.P.Act, the period of limitation for lodging the complaint before the District Forum, the State Commission or the National Commission is two years from the date on which the cause of action has arisen. If the period consumed for choosing the wrong Forum is excluded and if it is found that after exclusion of the said period, the complaint is lodged within the period of two years from the date of accrual of the cause of action, the complaint is liable to be considered very well legally maintainable under Section 24A of the C.P.Act. It has already been mentioned that the cause of action arose on 17.01.2010 and the petitioners as claimants filed a claim petition under Section 166 of the M.V. Act before the MAC Tribunal on 20.12.2010 and that MAC case has been disposed of by a judgment of dismissal dated 31.08.2013 being not maintainable in the MAC Tribunal. It is evident that the Ld. MAC Tribunal arrived at the conclusion regarding non-maintainability of the said claim case only on 31.08.2013. So, it is found that the period from 20.12.2010 to 31.08.2013 has been consumed due to the choosing of a wrong Forum for which the petitioners cannot be held liable at all because they had to depend on the advice of their the then learned advocate. So, it is found that the petitioners had a valid ground as sufficient cause for getting the period of delay commencing from 20.12.2010 to 31.08.2013 condoned. In that case, we have to see whether if the above mentioned period of delay is excluded due to the choosing of the wrong Forum, the complainants, the petitioners herein have lodged the complaint under Section 12 of the C.P.Act before the Ld. District Forum within the period of two years as contemplated in Section 24A of the said Act. The period of two years by calculation comes to 730 (365 X 2). If we calculate the period from 17.01.2010 to 19.12.2010 and from 01.09.2013 to 26.09.2014 (date of lodging the complaint), it comes within the period of 730 days, meaning thereby it is within two years and therefore, it can be held that the complaint under Section 12 of the C.P.Act has been filed by the complainants-petitioners within the total period of two years from the date of accrual of the cause of action after the exclusion of the period consumed for choosing the wrong Forum. That being the position, it can be held that the lodging of the complaint under Section 12 of the C.P.Act by the petitioners is not barred by law of limitation as provided under Section 24A(1) of the said Act.       
14. We have gone through the impugned order passed by the Ld. District Forum. It transpires that the Ld. District Forum in the impugned order has referred to a decision of the Hon’ble Supreme Court in Oriental Aroma Chemical Industries Ltd. Vs. Gujrat Industrial Development Corporation reported in (2010) 5 SCC 459 wherein it is held that the expression ‘sufficient cause’ employed in Section 5 of the limitation Act and similar other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice. It has also been held that no hard and fast rule can be laid down in dealing with the application for condonation of delay. It further appears from the impugned order that the Ld. District Forum usually adopts a liberal view in favour of condonation of delay for short duration and stricter approach where the delay is inordinate and from that standpoint, the Ld. District Forum opined that the petitioners would not explain properly the reason of delay of about one year twenty-five days in lodging the complaint even after the disposal of the claim petition by the MAC Tribunal and accordingly, finding no acceptable and cogent reason sufficient to condone such huge delay, rejected the application of condoning the delay in lodging the complaint by the impugned order.
15. Going through the impugned order, we find that the Ld. District Forum was also inclined to condone the period of delay consumed for choosing the wrong Forum. Considering the facts and circumstances and in view of the discussion made above, we are also of the view that the petitioners have been able to establish a ground of sufficient cause for getting the period of delay condoned which has been consumed due to the choosing of wrong Forum for the period from 20.12.2010 to 31.08.2013. The C.P.Act, 1986 is a consumer-friendly legislation. We have already opined that the period from 20.12.2010 to 31.08.2013 having sufficient cause should be excluded from the total period of delay and after excluding this period from the total period of delay, we find that the complainants have lodged the complaint within the total period of two years. That being the position, we are of the view that as the complaint has been lodged within the said period of two years, the Ld. District Forum is found not proper, legal and justified in rejecting the condonation application by the impugned order. In view of the above, we are also of the view that the impugned order passed by the Ld. District Forum is not sustainable in the eye of law and it should be set aside and the revision petition is also liable to be allowed.         
16. In the result, the Revision Petition is allowed. The impugned order dated 16.02.2015 passed by the Ld. District Forum, West Tripura, Agartala in case No.C.C(Misc)-08/2014 arising out of case No.C.C.77/2014 is hereby set aside and accordingly, the delay in lodging the complaint is condoned and the complaint lodged under Section 12 of the C.P.Act, 1986 be restored. There is no order as to costs.
17. The Ld. District Forum shall proceed with the complaint case taking into consideration the point of admissibility of the complaint according to law as provided under the C.P.Act, 1986.
18. Let a copy of the judgment along with the record of C.C.(Misc)-08/2014 arising out of C.C.-77/2014 and the record of C.C.-77/2014 be sent to the Ld. District Forum forthwith.

 

     

                      MEMBER                                             PRESIDENT

                            State Commission                                    State Commission

                                    Tripura                                                      Tripura