Haryana

StateCommission

A/348/2020

SHRIRAM GENERAL INSURANCE COMPANY LTD. - Complainant(s)

Versus

UDEY SINGH - Opp.Party(s)

SACHIN OHRI

13 Jun 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                       First Appeal No.348 of 2020

                                                 Date of Institution: 07.09.2020

                                                               Date of Decision: 13.06.2022

 

Shriram General Insurance Company Ltd, SCO No.21-22, 1^st Floor, Mugal Canal, Karnal and E & EPIP, RIICO Industrial Area Sitapur, Jaipur (Rajasthan), through its Mr. Amandeep Sharma, Assistant Manager Legal SCO 178 Ist Floor Sector 38-C, Chandigarh.

…..Appellant

Versus

Udey Singh S/o Sh.Dharampal  Singh R/o Village Phurlak, Distt. Karnal.

…..Respondent

CORAM:    S.P.Sood, Judicial  Member

                    Suresh Chander Kaushik, Member

 

Present:-    Mr.Sachin Ohri, Advocate for the appellant.

                   Mr.Parmod Chauhan, Advocate for the respondent.

 

                                                 ORDER

S P SOOD, JUDICIAL MEMBER:

          The present appeal No.348 of 2020 has been filed against the order dated 10.02.2020 of the District Consumer Disputes Redressal Forum, Karnal (In short “District Commission”) in complaint case No.366 of 2018, which was allowed.

2.      There is a delay of 157 days in filing the appeal.  An appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  157 days wherein,  it is alleged that  copy of impugned order dated 10.02.2020 was prepared on 12.02.2020 and delivered on 17.02.2020. Counsel sent the copy of order at Jaipur Office, which was received after 4-5 days.  The technical team recommended to challenge the order before the higher authority.  On 25.02.2020, the senior officers decided to file an appeal before the State Commission. On 09.03.2020, the present counsel was engaged and documents were sent to him for filing of an appeal before this Commission. The entire country came under lockdown due to Covid-19 and offices of the appellant insurance company were closed.  The said appeal is being filed without any delay. The delay is not intentional but the same was due to the reasons explained above. Thus, delay of 157 days in filing of the present appeal be condoned.

3.         Arguments Heard. File perused.

4.         Learned counsel for the appellant vehemently argued that as per facts mentioned above, it is clear that delay in filing appeal is not intentional.    Further argued that  impugned order dated 10.02.2020 was prepared on 12.02.2020 and delivered on 17.02.2020. Counsel sent the copy of order at Jaipur Office, which was received after some days.  The technical team recommended to challenge the impugned order and on 25.02.2020, the senior officers decided to file an appeal before this Commission. Further argued that on 09.03.2020, the present counsel was engaged for filing of an appeal. Due to Covid-19, offices of the appellant company were closed, so the delay may be condoned. 

5.         While dealing with the application for condonation of delay, it is not disputed that the delay cannot be condoned on the ground of equity and generosity, but at the same time it is to be taken into consideration that in case of any legal infirmity is committed by the District Commission while passing the impugned order which is apparent on record, the same cannot be allowed to continue as it would amount to no order in the eyes of law.

6.         While dealing with the prayer for condonation of delay, reference may be made to the observation made by the Hon’ble Supreme wherein it has been held that when the substantial justice and technical approach are pitted against each other, the former has to be performed. It has further been held that the words “Sufficient Cause” have to be interpreted to advance the cause of justice. The Hon’ble Apex Court in case cited as State of Nagaland Vs. Lipok A.O. and others, 2005(3) SCC 752 has held as under:-

“11.What constitutes sufficient cause cannot be held down by hard and fast rules. In New India Assurance Co. Ltd. Vs. Shanti Misra (1975)(2) SCC (840) this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression “sufficient cause” should receive a liberal construction. In Brij Inder Singh Vs. Kanshi  Ram (ILR) (1918) 45 Cal. 94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari (AIR 1969 SC 575) a Bench of three-Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.”

In the instant case the District Commission has passed the impugned order by ignoring the law and therefore, we think it a fit case to condone the delay. Hence, the delay of 157 days in filing of the present appeal is condoned.

7.       The brief facts of the case are that complainant was registered owner of the tractor bearing registration No.HR05AD-8367.  The vehicle in question was insured with the Opposite party (OP) vide policy bearing No.10003/31/18/511752 for the period w.e.f. 12.01.2018 to 11.01.2019.    The IDV of the vehicle was Rs.3,27,358/-. On 05.09.2018, the vehicle met with an accident when the vehicle was driven by Gian Chand.  The vehicle was totally damaged.  DDR No.10 dated 18.09.2018 was registered. The tractor was still lying in the said gorge at the place of accident. He informed the OPs about the said incident. Surveyor was appointed, who conducted the surveyor of the damaged tractor.  The complainant submitted all the relevant document with the OP but,  the OPs neither settled the claim nor repudiated it. Thus there was deficiency in service on the part of the OPs.

8.      Notice being issued, OP filed reply. The written version filed by the learned counsel for OP No.1 has not been signed by the  party, thus the same cannot be considered.

9.      After hearing both the parties, the learned District Commission, Karnal has allowed the complaint vide order dated 10.02.2020, which is as under:-

“Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to pay Rs.3,27,358/- to the complainant with interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OPs to pay Rs.15,000/- to the complainant on account of mental agony and harassment suffer4ed by him and Rs.5500/- for the litigation expenses.”

10.    Feeling aggrieved therefrom, OP-appellant has preferred this appeal.

11.    This argument have been advanced by Sh.Sachin Ohri, the learned counsel for the appellant as well as Sh. Parmod Chauhan, the learned counsel for the respondent. With their kind assistance the entire records as well as the original record of the District Commission including whatever the evidence has been led on behalf of  both the parties had also been properly perused and examined.

12.    Learned counsel for the OP-appellant argued that  the complainant has no insurable interest in the alleged vehicle in question as the said vehicle was sold by the complainant to one Shama Nand.  As per version given by said Shama Nand to the police on the basis of which the DDR was jotted down. He has purchased the vehicle in question on the basis of installments from complainant. The vehicle in question has been transferred without endorsement of OP on the cover note.  The claim of the complainant is not payable as per terms and conditions of the policy.   Learned District Forum has failed to appreciate that there was inordinate delay in lodging the DDR/FIR of 12 days and delay of eight days to the OP.  After the incident, surveyor was appointed, who assessed the loss of Rs.47,736/-, however, the complainant did not produce his vehicle to commence repairs. The appellant has issued vakalatnama to the counsel who filed the same on record of the Ld. DCF to appear, plead, argue on behalf of appellant.  The counsel of the appellant had right to file written version with his signatures and there was no requirement of signature of the signatory of the appellant insurance company on the written statement.  The finding of District commission that reply was not signed by the party is wrong and arbitrary.

13.      Having considered the submissions made on behalf of the appellant, since admittedly the evidence on behalf of the respondent had not been properly led due to any of the reasons and  if the matter is remanded back to the learned District Commission, Karnal with the directions to afford the opportunity to the present appellant to file written statement of defence and lead evidence and then to decide afresh accordingly.

14.    In view of the above submissions and careful perusal of the entire record, it is golden principle of law that proper opportunity should be afforded to the concerned party before deciding the case on merits. The complainant is not going to suffer any irreparable loss if the O.P is afforded an opportunity to defend itself before the learned District Commission, so in these circumstances, impugned order dated  10.02.2020 is set aside subject to the payment of Rs.5,000/- as costs and case is remanded back to the learned District Commission to decide the matter afresh after submitting reply by the OP as well as leading both parties evidence.   The appeal is allowed. 

15.    Parties are directed to appear before the District Commission, Karnal on 15.07.2022 for further proceedings. 

16.    The statutory amount of Rs.1,99,395/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.

13th  June, 2022     Suresh Chander Kaushik                        S. P. Sood                                                    Member                                                         Judicial Member                            

 

S.K

(Pvt. Secy.)