Delhi

North East

CC/317/2017

Om Kanwar - Complainant(s)

Versus

United India Insurance company Ltd. - Opp.Party(s)

08 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 317/17

 

 

In the matter of:

 

	Om Kanwar S/o Sh. Ram Narain R/o H.No. B-503, Shubham Apartment, Plot No.13, Sector 22, Dwarka New Delhi-110077	Complainant
	Versus
	United India Insurance Co. Ltd. Through its Branch Manager, 10, Raj Block, GT Road, Walraj Mandir, Shahdara, East Delhi-110032	Opposite Party

 

DATE OF INSTITUTION:        JUDGMENT RESERVED ON:                      DATE OF DECISION:

06.11.17 13.03.23 08.05.23

 

 

 

 

 

 

 

 

CORAM:

Surinder Kumar Sharma, President

Adarsh Nain, Member

ORDER

 Ms. Adarsh Nain, Member

The Complainant has filed the present complaint under Section 12 of the Consumer protection Act, 1986.

Case of the Complainant

1. The facts of the case are that the Complainant is the registered owner of truck bearing no. HR-46C 1235, engine no. 30H62283934, chassis no. 426021HWZ121300 and model no. 2003. The Complainant submitted that the said truck was insured with Opposite Party with insurance policy no. 111600/31/07/01/00002550 for the period 03.09.2007 to 02.09.2008 for a sum of Rs. 6,00,000/-. On 11.02.08, the stocks of aluminium rods were loaded in the truck in question from Samba in Jammu Sector and it reached Delhi on 13.02.2008 early morning at about 5 am. The said truck was parked near M/s Swhney Rubber, Jhilmil Industrial Area, Shahdara, Delhi, then suddenly a TATA 407 came from behind, from which a person came out and started quarrelling with the Suresh Kumar, the driver of the truck in question on the ground that same had caused accident some distance behind. The driver of the truck was very surprised and resisted him from arguing without any valid reason. The said person forcefully occupied the truck on the point of gun and drove it on the pretext that same shall be taken to the police station but he fled away with the truck in question. Suddenly other men sitting in TATA 407 started followed the truck in question. On 16.02.08 Complainant lodged an FIR having FIR no. 31/2008 at Police Station, Dilshad Garden and the chargesheet was filed and is pending in the court. After the alleged theft, the Complainant submitted his Insurance claim in 2008. The Complainant submitted that he did not receive any communication from Opposite Party side till end of 2014. The Complainant filed an RTI application through his family friend to Opposite Party in Jammu Division office on 16.01.14 enquiring about claim but Opposite Party denied providing information on ground of confidentiality. The Complainant filed appeal against RTI application and got reply from Opposite Party that Complainant had not pursued his claim in spite of various reminders and the status of claim was that the file was closed as no claim and was time barred. The Complainant stated that it is mentioned in the surveyor report that “the above stated theft has genuinely taken place on the reported date of loss in which vehicle in question has been stolen. The FIR has been genuinely registered with the Police Station, Dilshad Garden Delhi vide FIR No. 31/2008 and charge sheet has been filed. The surveyor observed-“ loss has taken place within the currency of the insurance policy. The documents such as toll receipts, GR, Bill of the consignment etc. were all genuine. The vehicle was parked at the material time of loss. The vehicle was loaded with the consignment of aluminium rods and this consignment has also been stolen with the vehicle No. HR 46C 1235.  Neither there is any clue to the where abouts of consignment as this consignment have moved from one hand to another and has been liquidated by eradicating all the clues to the theft. Thus the claim lodged by the insured is genuine. We recommend to the underwriters to kindly proceed further in the claim purely on merits and findings of the investigating and settle the claim.” It is alleged that the Opposite Party instead of disbursing the insured amount closed the claim of the complainant illegally which amounted to deficiency in service on the part of the Opposite Party. The family friend of Complainant wrote another RTI dated 12.05.14 to Opposite Party and in response, the complainant was supplied with photocopy of Letter no. Motor claim 2009/372 dated 02.02.2009 and photocopy of Letter No. Motor Claims 2009/712 dated 05.03.2009. It is further submitted that with regards to the factum of dispatch register being a mode of proof of service, it was submitted by the Opposite Party that same was not available due to shifting of office premises. Hence, the present complaint. The Complainant has prayed for insurance claim i.e. Rs. 6,00,000/- along with interest @ 18 % p.a. He has also prayed for Rs. 2,00,000/- for mental harassment and Rs. 25,000/-  towards the cost of litigation.
2. It is to be noted that along with the complaint, the complainant has also filed an application for condonation of delay in filing the complaint. The said Application for condonation of delay has been filed on the ground that the complainant engaged an advocate Sh. Rakesh Prabhakar to file the complaint and the advocate kept him in dark. He was told that matter was filed and under consideration. It has been further stated that said advocate died on 14.02.2017 and fact about death came to his notice after 3-4 months and upon inquiry from all the district forums of Delhi, the complainant was shocked to know that case was never filed. Hence, the delay may be condoned as the same is not wilful or intentional.

 

 

Case of the Opposite Party

3. The Opposite Party contested the case and filed written statement and also reply to the application by complainant for condonation of delay. It is submitted that the Complainant had insured his truck, TATA Tralla Truck vehicle bearing Reg. No. HR-46C 1235, vide policy No.111600/31/07/01/00002550 for a period from 03.09.07 to 02.09.08 from the Opposite Party company. It is alleged that the insured Om Kanwar has given an instruction in writing to RTO Rohtak, for not to divulge any information regarding the insured vehicle to anyone other than himself. Hence R.C. Fitness & Rout Permit of the said vehicle, could not be verified by the Opposite Party insurance Company. The Opposite Party insurance company sent many reminders to the Complainant regarding RC, Fitness & Rout Permit of the said insured vehicle, but the Complainant did not reply of the same. It is also averred that the cause of action arose on 13.02.2008 and the complaint was filed in the year 2018, hence, beyond limitation period. It is also submitted that as per the complainant, the truck was looted in the broad day light, on the point blank range of the gun and the FIR was registered after 3 days of such loot, which does not support the concocted story of the occurrence, made by Complainant. The complainant also did not intimate the Opposite Party about the loot within time. The Opposite Party has submitted that there was no deficiency on the part of the Opposite Party and complaint is liable to be dismissed. On the point of delay, it has been submitted that complainant was not illiterate or poor as he was the owner of truck and that he never engaged any advocate as there was no documentary proof filed before this commission. Since the delay is intentional, hence, should not be condoned. 

Rejoinder to the written statement of Opposite Party

4. The Complainant filed rejoinder to the written statement of Opposite Party wherein the Complainant has denied the pleas raised by the Opposite Party and has reiterated the assertion made in the complaint. It is denied that the insured Complainant had given an instruction in writing to RTO Rohtak for not to divulge any information regarding the insured vehicle to anyone other than himself. The complainant submits that the Opposite Party must be put to strict proof of the statement made in the reply as no such instruction had been given to the RTO. It is alleged that the insurance company has negligently carried out the investigation just to refuse to pay the claim of the Complainant. It is also denied that FIR was lodged with delay. The complainant replied that on 11.02.2008, the stocks were loaded comprising of aluminium roads in the truck in question of the Complainant from Samba in Jammu Sector and it reached Delhi on 13.02.2008 early morning at about 5 am on 13.02.2008. the complainant also rebutted the reply of the Opposite Party to the application for condoning the delay.

 

 

Evidence of the Complainant

5. The Complainant in support of his complaint filed his affidavit wherein the complainant reiterated the contents of the complaint and in support of his contentions, inter alia relied upon the copies of Insurance cover note, FIR, order of Ld. MM, Investigator Report, Valuation report of the vehicle etc.

Evidence of the Opposite Party

6. In order to prove its case Opposite Party has filed affidavit of Ms. Gitanjali Chauhan, AM with Opposite Party, wherein the averments made in the written statement of Opposite Party have been supported.

Arguments & Conclusion

7. We have perused the material on record carefully. The complainant has filed the present complaint alongwith the application for condonation of delay in filing the complaint. The Opposite Party had also filed reply to that application and objected to the condonation of delay. The Opposite Party also vehemently argued on the issue of limitation. The perusal of the court proceedings shows that the arguments on the application were heard by the previous bench and vide order dated 24.08.2018, it was observed that the ground of inaction by the advocate is not the sufficient ground for condonation of delay. The Opposite Party was directed to file proof of dispatch in support of their case that they had informed the complainant regarding approval of claim in the year 2009 itself not in the year 2014 as is contended by the complainant. However, the Opposite Party failed place on record the proof of dispatch of letters pertaining to 2009 and the complainant’s contention is to be believed that he was intimated about the closure of claim in 2014.
8. While perusing the file, we noted that the said application is still pending adjudication. Since, the question relating to limitation goes to the root of the matter and may render the order illegal, we would have to first see whether the Complaint was filed within the requisite time period i.e., within two years of accrual of cause of action. If it has been filed beyond prescribed limitation, the sufficient cause must be shown and delay must be condoned for the reasons recorded in writing, only then, the complaint can be dealt with on merits.
9. Section 24A of the Act, 1986 clearly shows that any complaint should be filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint, if sufficient cause is shown.
10.  In the present set of facts, as the record in hand shows that the date of loss occurred on 13.02.2008 and the complainant admittedly received the information regarding the closing/status of the claim in 13.10.2014. According to the Complaint filed by the Complainant, the cause of action arose when the complainant got the intimation of rejection of claim i.e. 13.10.2014 and as per record, the present complaint has been filed on 06.11.2017 i.e. after a delay of one year and 24 days. In order to condone the delay, the complainant has to satisfy this Commission that there was sufficient cause for filing the complaint after the stipulated period.
11.  The term ‘sufficient cause’ has been explained by the Apex Court in Basawaraj and Ors. vs. The Spl. Land Acquisition Officer reported in AIR 2014 SC 746. The relevant paras of the aforesaid judgment are reproduced as under:-

“9. Sufficient cause is the cause for which Defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "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". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose.”

 

12. From the aforesaid dicta of the Hon’ble Apex Court, it is clear 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 and the applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay.
13.  It is pertinent to mention here that Hon’ble supreme court in Cicily Kallarackal Vs. Vehicle Factory reported at IV (2012) CPJ 1(SC) 1 observed as follows:-

"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".

 

14. Coming to the application in the present matter, we observed that the complainant has sought condonation of delay on the ground that the advocate engaged by him did not pursue the matter and kept him in dark. It was submitted that said advocate died on 14.02.2017 and fact about death came to his notice after 3-4 months and upon inquiry from all the district forums of Delhi, the complainant/applicant came to know that no such matter was pending.
15.  The perusal of the case file shows that that the complainant had not filed any documentary proof in support of any of his contentions. The complainant has neither specified in the application the specific date, time and year when the matter was assigned by him to the said advocate nor has he furnished any documentary proof showing those details in support of his contention. The complainant has failed to explain the day-to-day delay caused after the receiving of the information about closure of his claim and the reasons for delay given in the application are also very vague, hence, unworthy of reliance. Therefore, in absence of any document, no presumption can be raised in this regard.
16.  Thus, we are of the considered view that the Complainant has not acted with reasonable diligence in prosecution of his case which has resulted in filing the complaint beyond the period of two years as prescribed in the Consumer Protection Act, 1986. It is clear that the negligence, deliberate inaction and lack of bonafides are imputable to the Complainant, therefore, the Complainant is not entitled for any Condonation of Delay.
17. Accordingly, the application for Condonation of Delay is dismissed. Consequently, the Complaint shall also stand dismissed, being barred by limitation. However, in the facts of the case, there shall be no order as to costs.
18. Order announced on 08.05.2023.

Copy of this order be given to the parties free of cost.

File be consigned to Record Room.

 

(Adarsh Nain)     Member

(Surinder Kumar Sharma) President