Haryana

StateCommission

A/592/2016

RAJ KUMARI - Complainant(s)

Versus

UNITED INDIA INSURANCE CO. - Opp.Party(s)

S.K.LIBERHAN

09 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,          PANCHKULA.

 

                                                First appeal No.592 of 2016

                                                       Date of Institution: 29.06.2016                            Date of Decision:09.09.2016

 

Raj Kumar S/o Sh.Mangat Ram R/o Gali No.8, Amargarh Gamri, Kaithal, Tehsil & District Kaithal.

…..Complainant

 

Versus

 

United India Insurance Company Limited, Branch Office, Karnal Road, Opposite I.G. College, Kaithal-136027 through its Branch Manager at Kaithal, Haryana.

…..Opposite Party

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mr.Diwan Singh Chauhan, Member.                                      

For the parties:  Mr.S.K.Liberhan, Advocate counsel for the complainant.

                            

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

          It was alleged by the complainant that on  19.10.2013 he was carrying illicit liquor of contractor under the permit from liquor vend at Jind Road, Kaithal to village Kharkan. Vehicle bearing registration No.HR 64-5175 met with an accident and was badly damaged and he spent Rs.75,000/- on the repairs.  O.P. repudiated his claim on  29.04.2014 without any reasonable ground. 

2.      It was alleged by OP that complainant was carrying country made liquor unauthorisedly and not in a legal manner for which a penalty of Rs.1,20,000/- was imposed on the accused. The vehicle in question was being used in violation of terms and conditions of insurance policy and that is why the claim was rightly repudiated. Surveyor assessed loss to the tune of Rs.31,717/-.

 3.     After hearing both the parties, learned District Consumer Disputes Redressal Forum, Kaithal (in short “District Forum”) dismissed the complaint vide impugned order dated 14.09.2015 on the ground that complainant was carrying liquor without permission of excise and taxation department and in this way violated the terms and conditions of insurance policy and was not entitled for compensation.

4. Feeling aggrieved therefrom complainant preferred this appeal. Alongwith appeal complainant has filed an application for condonation of delay of 256 days on the ground that certified copy was prepared on 17.09.2015 and same was received on 30.09.2015 through ordinary post. He consulted an advocate and thereafter it was decided to file an appeal. In this way the delay had occurred which was not intentional and be condoned.

5.      Arguments heard. File perused.

6.      The reasons of delay mentioned in the application are not sufficient to condone the delay. As per averments he received the copy on 30.09.2015 and took 256 days in filling appeal.  It cannot be presumed that for such a long period advocate was going through the matter.

7.      A period of 30 days has been provided for filing an appeal against the order of the District Forum. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days delay.”

The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

          In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been observed:

         “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

      In Ram Lal and Ors.  Vs.  Rewa Coalfields  Ltd., AIR  1962 Supreme Court 361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

         

    Hon’ble Supreme Court in  Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 held as under;

“We have considered   the respective    submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same   time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”       

 

8.         Even otherwise the case of the complainant is not good on merits.  The complainant has miserably failed to show that there was any permit to carry liquor from Kaithal to village Kharkan. As there was no permit that is why penalty of Rs.1,20,000/- was imposed upon the accused.  As per insurance policy he was not supposed to use the vehicle for illegal purposes. When he violated terms and conditions of insurance policy his claim was rightly repudiated.  Findings of learned District Forum qua this fact are well reasoned based on law and facts.

9.         It is well settled proposition of law that if case is not good on merits the delay should not be condoned.  As a sequel to above discussion delay cannot be condoned and the application for condonation of delay is dismissed.  Resultantly appeal is also dismissed.

 

September, 09th, 2016

Mr.Diwan Singh Chauhan, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.