(Delivered on 29/08/2018)
PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.
1. We have heard Advocate Mr. C.B. Pande for the appellant and Advocate Mrs. Renuka Nalamwar for the respondent No. 1 and Advocate Mr. P.G. Mewar for the respondent No. 2 on the application made by the appellant for condonation of delay of 88 days that occurred in filing of appeal. We have also perused the record and proceedings of the appeal.
2. The appellant’s advocate explained the delay in brief as under:-
a. The appellant received the copy of the impugned order by post on 05/01/2016 from the District Consumer Forum below. On receipt of copy of impugned order, the appellant had taken search of the said matter and called the relevant file in order to know the facts and decision in consequence of the impugned order. The appellant after receiving the relevant information from the dealing office, decided to prefer the appeal. Accordingly, the appellant deposited the statutory amount with the Forum below as required for filing of appeal. The said statutory amount was deposited with the Forum on 30/01/2016 and its receipts was forwarded by the appellant to its counsel in the second week of February 2016.
b. The appeal was entrusted to the said counsel for filing of appeal in the last week of February-2016, along with file. However, the file pertaining to that matter was lying with the dealing office at Indore which was looking after all the matters arising out of Consumer Fora. It was found that file does not contain all the papers required for drafting of appeal. Hence, the counsel instructed appellant to provide file with all the relevant documents, including the copies of complaint , reply filed by the O.P. affidavit and various other documents . After receiving the documents , the counsel found that there are several discrepancies and the claim appears to be fraudulently lodged for taking undue advantage of the policy. There was also 60 days delay in lodging the insurance claim and there was breach of policy condition and breach of basic principle of utmost good faith. The counsel telephonically instructed appellant to provide the documents to support various contentions. The dealing office called the documents from the counsel who had defended the appellant before the District Forum at Wardha and also from the concerned dealing branch and after receipt of few of the same, they were forwarded to the counsel of Nagpur.
c. There are various other cases to be handled throughout India by the appellant and as the matter is very complicated looking to the fact and as documents were insufficient at the relevant time , they were required to be obtained and during that process delay of 88 days has been occurred in filing of appeal. Thus, the delay is caused because of administrative procedure and complex facts and question involved and non availability of the various documents, which were subsequently collected from cities namely Mumbai, Indore and Wardha. The delay was not intentional . Moreover, the appellant has got a very good case on merit. Hence, it may be condoned.
3. The learned advocate of the appellant relied on decisions in the following cases for condonation of delay.
i. Central Bank of India Vs. Jasbir Singh, reported in 2015(2) T.A.C. 673 (S.C.). In that case the matter had to be processed at various level for seeking permission and hence, it was held that the delay was well explained.
ii. Improvement Trust, Ludhiana Vs. Ujagar Singh and others, reported in (2010 (6) SCALE 173. In that case it is held that for condonation of delay no straight jacket formula is prescribed to come to the conclusion that if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances, in which the party acts and behaves. From the conduct, behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. After all justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it of on such technicalities and that too at the threshold.
iii. State of Bihar and others Vs. Horil Sahni, reported in MANU/SC/1649/2009. In that case it is observed that having heard learned counsel for the parties and going through the application for condonation of delay in filing of Letters Patent Appeal (L.P.A.), we are satisfied with the explanation offered for the same. We accordingly set aside the impugned order of the High Court, condone the delay that occurred in filing of L.P.A. and restore the Letters Patent Appeal (L.P.A.) to its original number with the request to the High Court to dispose of the aforesaid L.P.A., by the end of April,2009 without granting unnecessary adjournment to either of the parties.
iv. M/s. Esbee Inds. Corporation Vs. M/s. Bulk Systems Int. Ltd. , reported in MANU/SC/3101/2000. In that case there was delay of 161 days of which condonation was refused on the ground that except for pleading forgetfulness no other ground is made out. It was held that the High Court was not justified in refusing condonation of delay. Thus delay was condoned.
v. State of Haryana Vs. Chandrda Mani and others, reported in MANU/SC/0426/1996. In that case it is held that the expression “ sufficient cause ” should be considered with pragmatism in a justice oriented approach rather than the technical detection of sufficient cause for explaining every day’s delay. While all litigants, whether State or private parties are accorded the same treatment and the law is administered in an even handed manner. Certain amount of latitude is not impermissible in the case of appeal by State considering the bureaucratic methodology and procedural red-tape involved in decision making and also the fact that if a State’s Appeal is lost the public interest suffers. In this perspective the delay of 109 days in filing the appeal in this case was condoned.
vi. Collector, Land Acquisition, Anantnag and others Vs. Katiji and others, reported in MANU/SC/0460/1987. In that case it is held that as inbuilt delays are part of the workings of the State and hence, a liberal approach for condoning delay must be adopted. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice. That being the life purpose of the existence of the institution of Court, a liberal approach is adopted on principle. There was sufficient cause for condoning the delay in institution of the appeal . The fact that it was the ‘State” which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. The inherited bureaucratic methodology imbued with the note making, file pushing, and passing on the buck ethos, delay on its part is less difficult to understand though more difficult to approve - The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression “sufficient cause” - to do even handed justice on merits in preference to the approach which scuttles a decision on merits”.
vii. In the case of ICICI Lombard General Insurance Co. Ltd. Vs. Shameem Banu, in Revision Petition No. 3607/2012, decided on 31/01/2018 by the Hon’ble National Commission. In that case there was a delay of 54 days in filing of revision petition. For the reasons stated in the application for condonation of delay, the delay of 54 days in filing the revision petition was condoned.
viii. In the case of United India Insurance Co. Ltd. Vs. Gaurav Overseas Inc, in appeal No. 815/2013, decided on 11/08/2016 by the Hon’ble National Commission observed that no doubt, date wise explanation has not been given by the appellant, but looking to the explanation given by appellant, we deem it appropriate to condone delay subject to cost in the light of latest judgments of Hon’ble Apex Court in (1) [Civil Appeal No. 10120-10121 of 2014] Jeevanti Devi Vs. Commercial Motors & another , (2) [ Civil Appeal No. 10289 of 2014] A.T.S. Govindarajane Vs. Chief Manager, State Bank of India ; and (3) [Civil Appeal No. 5071 of 2014] Taipen Traders Ltd. & other Vs. M/s. Bhawani Cold Storage & another by which delay of 135 days, 149 days and 218 days , respectively in filing revision petition was condoned and in such circumstances, delay of 84 days is condoned subject to payment of cost of Rs. 5000/- to the complainant.
ix. In the case of Oriental Insurance Company Ltd. and another Vs. Shankar Singh, in revision petition No. 961/2014, decided on 28/04/2016 by the Hon’ble National Commission. It is observed by Hon’ble National Commission that as far application for condonation of delay is concerned, as per office report there is delay of 98 days But as per application for condonation of delay , there is delay of 60 days in filing revision petition on the ground that file was misplaced in the office of Advocate, so revision petition could not be filed in time. File was traced on 10/01/2014 and later on revision petition was prepared and filed on 31/01/2014 so delay in filing revision petition be condoned. As impugned order is non speaking order, delay occurred due to misplacement of file in the office of Advocate , we deem it appropriate to condoned the delay in life of judgments of Hon’ble Supreme Court in (1)[Civil Appeal No. 10120-10121 of 2014] Jeevanti Devi Vs. Commercial Motors & another , (2) [Civil Appeal No. 10289 of 2014] A.T.S. Govindarajane Vs. Chief Manager, State Bank of India ; and (3)[ Civil Appeal No. 5071 of 2014] Taipen Traders Ltd. & other Vs. M/s. Bhawani Cold Storage & another by which delay of 135 days, 149 days and 218 days , respectively in filing revision petition was condoned and delay stands condoned subject to payment of Rs. 5,000/- as cost to respondent within four weeks.
x. Oriental Insurance Co. Ltd. Vs. Satish Ratanchand Bora, in appeal No. 87/2012, decided on 04/03/2016 by the Hon’ble National Commission. It is observed that as far as condonation of delay is concerned, the learned counsel for the appellant submitted that delay was occurred in getting permission from Head Office and opinion of advocate, so delay may be condoned. Application for condonation of delay does not contain days of delay to be condoned, but as per office report , there is delay of 84 days in filing appeal. Perusal of application reveals that appellant received certified copy of the impugned order on 01/11/2011 and obtained opinion of advocate at Ahmednagar on 23/11/2011 and matter was referred by Divisional office to Regional office and then by Regional office to Head office and matter was referred to advocate on 20/01/2012 But opinion was received on 01/02/2012 and then appeal was filed on 23/02/2012. No doubt, there is delay of 84 days , but looking the explanation given in application for condonation of delay and looking to the amount involved in the case, I deem it appropriate to condone delay subject to cost in the light of judgments of the Hon’ble Apex Court in (1)[Civil Appeal No. 10120-10121 of 2014] Jeevanti Devi Vs. Commercial Motors & another , (2) [Civil Appeal No. 10289 of 2014] A.T.S. Govindarajane Vs. Chief Manager, State Bank of India ; and (3) [Civil Appeal No. 5071 of 2014] Taipen Traders Ltd. & other Vs. M/s. Bhawani Cold Storage & another by which delay of 135 days, 149 days and 218 days , respectively, in filing revision petition was condoned.
xi. National Insurance Co. Ltd. Vs. M/s. Baboo Lal Sood & Sons, in revision petition No. 2509/2014, decided on 14/10/2015 by the Hon’ble National Commission. In that case the opposite party in application for condonation of delay had submitted that copy of order of District Consumer Forum was received on 07/11/2013 on which opinion was sought from the concerned advocate who gave his opinion vide letter dated 14/12/2013 which was received in opposite party’s office on 11/12/2013 which was sent for approval to Divisional office and , in turn, it was sent to Regional Office on 19/12/2013 who granted permission to file appeal and after receiving a cheque of Rs. 25,000/-, appeal was filed on 06/02/2014. No doubt , delay of more than one month was caused by Regional Office in granting permission to file appeal but as there was delay of only 59 days in filing appeal with reasonable explanation and as office of Public Sector Undertaking takes time in processing files, delay in filing appeal should have been condoned subject to cost, by learned State Commission in the light of judgments of Hon’ble Apex Court in (1) [Civil Appeal No. 10120-10121 of 2014] Jeevanti Devi Vs. Commercial Motors & another , (2) [Civil Appeal No. 10289 of 2014] A.T.S. Govindarajane Vs. Chief Manager, State Bank of India ; and (3) [Civil Appeal No. 5071 of 2014] Taipen Traders Ltd. & other Vs. M/s. Bhawani Cold Storage & another by which delay of 135 days, 149 days and 218 days , respectively, in filing revision petition was condoned. Learned State Commission has committed error in dismissing application for condonation of delay as well as appeal.
xii. In the case of Shriram General Insurance Co. Ltd. Vs. Jaspal Singh, in revision petition No. 894/2015, decided on 12/10/2015 by the Hon’ble National Commission it is held that though there has been lack of promptness and efficiency on the part of the petitioner , considering all the facts and circumstances of the case, I feel that the appeal should be adjudicated on merit.
xiii. In the case of Bharti AXA General Insurance Company Ltd. Vs. Sarvjit Dhanda, in appeal No. 405/2014, decided on 26/05/2015 by the Hon’ble National Commission it is held that the appellant has given proper explanation for condonation of delay and as there is delay of only 61 days in filing appeal, I deem it appropriate to condone delay in the light of latest judgment of Hon’ble Apex Court in (1)[Civil Appeal No. 10120-10121 of 2014] Jeevanti Devi Vs. Commercial Motors & another , (2) [Civil Appeal No. 10289 of 2014] A.T.S. Govindarajane Vs. Chief Manager, State Bank of India ; and (3) [Civil Appeal No. 5071 of 2014] Taipen Traders Ltd. & other Vs. M/s. Bhawani Cold Storage & another by which delay of 135 days, 149 days and 218 days , respectively, in filing revision petition was condoned, subject to payment of Rs. 5000/- as cost to respondent.
ivx. In the case of HDFC Ergo General Insurance Co. Ltd. Vs. Govind Prasad Gupta, in revision petition No. 187/2013, decided on 23/04/2015 by the Hon’ble National Commission it is observed that the petitioner had filed application for condonation of delay of 121 days and submitted that there are number of competent authorities in the hierarchy to come to a conclusion to file an appeal which took time in filing revision petition; hence, delay may be condoned . In the application for condonation of delay, no date wise explanation has been given by petitioner for condonation of delay , but as order of State Commission is not speaking order and O.P.No. 1 against whom District Consumer Forum passed order and proceeded ex-parte on the basis of presumption. I deem it appropriate to condone delay of 121 days in filing revision petition on payment of Rs. 5000/- as cost in the light of latest judgments of Hon’ble Apex Court in (1)[Civil Appeal No. 10120-10121 of 2014] Jeevanti Devi Vs. Commercial Motors & another , (2) [Civil Appeal No. 10289 of 2014] A.T.S. Govindarajane Vs. Chief Manager, State Bank of India ; and (3) [Civil Appeal No. 5071 of 2014] Taipen Traders Ltd. & other Vs. M/s. Bhawani Cold Storage & another by which delay of 135 days, 149 days and 218 days , respectively, in initiating revision petition was condoned.
xv. In the case of Oriental Insurance Co. Ltd. Vs. Milind , in revision petition No. 3570/2013, decided on 27/01/2015 by the Hon’ble National Commission it is observed that in the light of aforesaid latest judgment of Hon’ble Apex Court, it would be appropriate to condone delay of 160 days in filing First Appeal and remand the matter back for deciding it on merits.
xvi. In the case of M/s. Oriental Insurance Co. Ltd. Vs. Shri Pradeep Singh, in First Appeal No. 639/2015, decided on 01/02/2018 by the State Consumer Commission, Delhi it is observed that the law regarding condonation of delay is that same should be construed liberally and Court should endeavour to decide the matter on merits instead of dismissing the same on technical plea of being barred by limitation. In Civil Appeal No. 10279/2014 titled as ATS Govinda Rajne Vs. Chief Manager, SBI decided on 14/11/2014 Hon’ble Supreme Court condoned the delay liberally. In this background we feel that inspite of diluting the matter further and going into medical ailment of counsel for appellant, it will be better to condone the delay. Accordingly, application for condonation of delay is allowed.
xvii. In the case of Mahindra & Mahindra Ltd. Vs. Shri Prashant Changdev Saste & another , in Misc Application No. MA/16/574 in appeal No. A/16/2978, decided on 03/04/2017 by the Hon’ble State Commission , Mumbai observed that during the course of arguments the learned Counsel Mrs. Marathe for the appellant placed reliance on ruling passed by Hon’ble Apex Court in case of Jeevanti Devi Vs. Commercial Motors & Anr. In Civil Appeal Nos. 10120-10121 of 2014. Hon’ble Apex Court observed that:
“Delay in filing the revision should have been condoned and the controversy should have been addressed on merits”
Honouring the views expressed by the Hon’ble Apex Court I am of the view that delay in filing appeal deserves to be condoned. Delay can be compensated in terms of money.
xviii. In the case of ICICI Bank Vs. Shri Kailash Nimba Devere, in appeal No. 361/2007, decided on 26/02/2009 by the Hon’ble State Commission, Mumbai. In that case under these circumstances , we find delay in filing the appeal being non-intentional and as matter deserves to be decided on merits, we hold the delay is satisfactorily explained. M.A. No. 503/2007 for condonation of delay is accordingly allowed.
xix. In the case of Cholamandalam General Insurance Vs. Kashmir Singh, in appeal No. FA/11/1192, decided on 16/07/2012 by the Haryana State Commission. In that case it is observed that in the instant case the District Consumer Forum has passed the impugned order without appreciating the facts of the case and therefore, we think it a fit case to condone the delay. Hence, the delay of 94 days in filing of the present appeal is condoned.
4. On the other hand, the learned advocate of the respondent No. 1 opposed the said application by filing reply. Her submission in brief is as under.
The appellant was negligent in collecting the certified copy of the impugned order from the Forum below though it was aware of the same. Hence, the Forum below was required to send the same by post to the appellant. The appellant failed to explain the huge delay of 88 days that occurred in filing of the appeal. Usually there cannot be delay of 10 to 15 days for filing of appeal as most of the documents and instructions are sent via e-mail nowadays. The Hon’ble Supreme Court in number of decisions has given guide lines in the matter of condonation of delay and said decisions are cited in the reply, filed to the delay condonation application. The appellant has many offices across India where its several employees are working and no such long delay can occur simply for obtaining approval for filing of appeal. The appellant wants hide its negligence in filing of appeal within limitation under the blanket of administrative procedural delay. Therefore, the application deserves to be rejected.
5. The learned advocate of the respondent No. 1 also relied on the decision of the following cases.
i. Shriram General Insurance Co. Ltd. Vs. Gurlochansingh Ghoitra, in First Appeal No. A/17/72, decided by the Hon’ble State Commission, Circuit Bench at Natgpur on 24/01/2018. It is observed that the delay of 110 days is thus inordinate. In our view it is occurred only because of inaction and gross negligence on the part of the appellant in taking immediate steps required for filing of appeal. It the such a long delay is condoned without sufficient explanation, then it would defeat the very object of expeditious disposal of the proceeding under the Consumer Protection Act, 1986. Therefore, we hold that as delay is not properly explained and as it is inordinate, the application for condonation of delay deserves to be rejected.
ii. In the case of Bharti AXA General Insurance Company Ltd. Vs. Preeti Upendra Mahadule and other, in First Appeal No. A/15/136, decided on 03/08/2016 by the Hon’ble State Commission, Circuit Bench at Nagpur. It is observed that actually there is a delay of 167 days that is occurred in preferring the appeal which is sought to be condoned by this application. It is a very long delay and it is not satisfactorily explained by appellant. No such delay of 167 days can occur for completing all such formalities. Hence, the said delay cannot be condoned.
iii. Jet Airways (India) Ltd. Vs. Varaderajan Muruga, reported in III (2016) CPJ 22 (NC). In that case while considering the question of condoning the delay , the observation made by Hon’ble Supreme Court of India in Anshul Aggarwal Vs. New Okhla Industrial Development Authority , IV(2011) CPJ 63 (SC) were followed which are reproduced below:
“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay , the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras”.
iv. M/s. Rutuja Construction Vs. Prakash Ramchandra Kale, reported in I (2016) CPJ 272 (NC). In that case decision of Anshul Aggarwal (Supra) has been reiterated in Cicily Kallarackal Vs. Vehicle Factory, IV(2012) CPJ 1(SC) wherein Hon’ble Supreme Court observed :
“ This Court in Anshul Aggarwal Vs. 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)”
“ 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”.
v. Anshul Aggarwal Vs. New Okhla Development Authority, reported in 2011(14) SCC 578. In that case the Hon’ble Supreme Court observed that while deciding an application filed in such cases for condonation of delay , the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras.
- Charu Vs. Kisanji Mirpuri , in revision petition No. 3201/2014, decided on
19/09/2014 by the Hon’ble National Commission. It is observed by the Hon’ble National Commission that the Apex Court in a case under the C.P. Act itself , in Anshul Aggarwal Vs. New Okhla Industrial Development Authority , IV(2011) CPJ 63 it was held that “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay , the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras.
6. Advocate Mr. Mewar appearing for the respondent No. 2 submitted that respondent No. 2 is a formal party and it has nothing to say on delay condonation application.
7. It is seen that there is inordinate delay at every stage. The appellant though received the copy of the impugned order on 05/01/2016, the statutory amount required for entertaining the appeal was deposited with the Forum below after delay of 25 days i.e. on 30/01/2016. Thereafter, there was again delay from 30/01/2016 till second week of February 2016 that occurred simply for forwarding said receipt by appellant to this counsel. There was delay from last week of February-2016 till filing of appeal by the concerned advocate on 03/05/2016 before this Commission.
8. No cogent and satisfactorily explanation is given for the delay that caused at every stepz as above. In our view when the complaint was contested by the appellant before the Forum below, it can be presumed that the appellant was already having all the relevant documents with it and therefore, there was no question of again searching of some others documents for the purpose of filing of appeal.
9. It is also pertinent to note that though in the application it is statedrepeatedly that some material documents were required for purpose of filing of appeal still the nature and discrepancy of the said documents is not specified in the application. The documents filed along with appeal are the same which were filed before the Forum below. Hence, the submission of the appellant cannot be relied that the some other documents besides the documents which were already filed before the Forum by both the parties were required for purpose of filing of appeal and that they were not available with the appellant and therefore delay was occurred in collection and forwarding of the same to the concerned counsel/advocate.
10. Moreover, there is no documents to show that the appellant collected various documents from the various sources after the impugned order was passed. Therefore, we hold that the submission of the appellant that many documents were required to be collected is after thought and hence, it cannot be believed.
11. It is not the case of the appellant that prior approval was obtained from higher authority for filing of appeal and for that reason the delay was occurred. It is stated in this application itself that the appellant decided to prefer the appeal . Moreover, statutory amount required for entertaining the appeal was also deposited on 30/01/2016 by the appellant. Therefore, there was no reason for causing delay from 30/01/2016 till 03/05/2016 for filing of appeal.
12. It is also not good ground for condonation of delay that dealing office of the appellant is at Indore and it has to look after all the matters arising out of Consumer Forum. There are various offices of the appellant at various places and hence it cannot be said that only office of Indore has to take all steps for filing of appeal. There is no document showing that the dealing office, Indore was entrusted with the work of filing of appeal.
13. It is also pertinent to note that no documents is filed by appellant to substantiate the grounds raised in the application filed for condonation of such long delay of 88 days. Thus we find that had the appellant diligent , active and careful, it could have avoided such long delay of 88 days. Thus, in our view the said delay has been occurred only cause of total inaction and gross negligence on the part of the appellant and hence said delay cannot be condoned.
14. Thus, we find that all the aforesaid decisions relied on by the learned advocate of the appellant are not applicable to the facts and circumstances of the present case as they are totally different from those of said cases as discussed above. We also hold that the aforesaid decisions relied by the learned advocate of the respondent No. 1 are applicable to the facts and circumstance of the present case.
15. Thus , we find that no satisfactorily explanation is given by the appellant for condonation of delay of 88 days, if such a long delay of 88 days that occurred in filing of appeal is condoned, without satisfactorily explanation, then it would defeat the very object of expeditious disposal of appeal filed under the Consumer Protection Act,1986. In the result the application made for condonation of delay by the appellant deserves to be rejected.
ORDER
i. The application made for condonation of delay is rejected.
ii. The appeal is dismissed as time barred.
iii. No order as to cost in appeal.
iv. Copy of order be furnished to both parties, free of cost.
