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Birla Sun Life Insurance Co. Ltd. & Another v/s Rajesh Chhajjer

Company & Directors' Information:- BIRLA CORPORATION LIMITED [Active] CIN = L01132WB1919PLC003334

Company & Directors' Information:- SUN PVT LTD [Active] CIN = U24246RJ1984PTC003093

Company & Directors' Information:- G SUN INDIA PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC071425

Company & Directors' Information:- SUN INDIA CORPORATION PRIVATE LIMITED [Strike Off] CIN = U65991TN1943PTC000994

    First Appeal No. 1126 of 2017

    Decided On, 22 February 2018

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Appellant: Avanish Kumar, Advocate. For the Respondent: Vinay Mehta, Advocate.

Judgment Text

Dr. B.C. Gupta, Member

This first appeal has been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned interim order dated 07.01.2015, passed by the Rajasthan State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) according to which, the right of the appellant/Opposite Party (OP) Insurance Company to file their written version to the consumer complaint in question, filed by the present respondent, was ordered to be closed on the ground of delay in filing the said written version.

2. The consumer complaint No. 05/2013 has been filed by the present respondent/complainant Rajesh Chhajjer against the appellant/OP Insurance Company, seeking payment of insurance claim in respect of various insurance policies taken by the father of the complainant during his life-time. It is stated that an Advocate Vishal Jain appeared in proceedings before the State Commission on 08.01.2014 and the case was fixed for filing the written version for 09.04.2014. Thereafter, the appellant/OP sought further time to file the written version, but on their failure to do so, the State Commission closed their right to file the same, as per their order dated 07.01.2015.

3. The learned counsel for the appellant/OP stated that they had duly prepared their written version to the complaint and sent the same to their Advocate for filing it before the State Commission. However, due to negligence on the part of their advocate, the said written version could not be filed before the State Commission in time.

4. The learned counsel stated that the appellant could not be allowed to suffer on account of the fault of their counsel. Further, they had filed affidavits on record made by Sh. Suresh B. Patwa, Advocate and Notary in which, it has been stated that the said written version was notarised by the said Advocate on 05.08.2014. Further, there is an affidavit filed by Mr. Vishal Jain Advocate, saying that he was practising at Jaipur and that he had deputed his associate Mr. Anees Ahmed Advocate to handle the case before the State Commission at Jodhpur. The said Advocate has stated that the appellant/OP had sent the notarised written version to him on 13.08.2014. Further, on 07.08.2014 and 10.10.2014, the Bench of the State Commission at Jodhpur had not been formed as indicated in the orders recorded on those days. The case had then been listed for hearing on 07.01.2015. The Advocate deputed to handle the case at Jodhpur could not submit the reply before the State Commission erroneously. The learned counsel for the appellant/OP stated that they were ready to pay the necessary cost etc. to the complainant, if written version was allowed to be filed on record at this stage.

5. On the other hand, the learned counsel for the respondent/complainant stated that there had been inordinate delay on the part of the OP Insurance Company in filing the written version to the complaint. Since their counsel Mr. Vishal Jain, had put in appearance on 08.01.2014, he should have ensured that the written version was filed within a reasonable time. The learned counsel further stated that they were not in agreement with the appellant that written version should be allowed to be placed on record subject to payment of cost.

6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

7. The present appeal has been filed on 29.05.2017, whereas the impugned order of the State Commission was made on 07.01.2015, meaning thereby that there is a delay of 873 days in filing the appeal as reported by the Registry. However, the appellant have contended that they acquired knowledge of the said order on 09.03.2017 and obtained a certified copy of the same just after one week, i.e., on 16.03.2017. Still, there is a delay of 44 days in filing the present appeal. Since a perusal of the order recorded by the State Commission reveals that there was no attendance by any person on behalf of the appellant before the State Commission at Jodhpur on that date, there is, therefore, nothing on record to disbelieve the version of the appellant that they came to know of the impugned order on 09.03.2017. Regarding the delay of 44 days, the appellant have filed application for condonation of delay, in which they have tried to explain that time was spent in checking-up the position with their main counsel Mr. Vishal Jain and also obtaining the required documents and legal opinion. In view of the position explained and considering the overall facts and circumstances of the case, it is felt that it shall be in the interest of justice, if the delay in filing the appeal is condoned and we order accordingly.

8. On merits, it is borne out from record that the main counsel of the appellant Mr. Vishal Jain appeared before the State Commission on 08.01.2014. On the next date of hearing, i.e., on 09.04.2014, his associate Mr. Anees Ahmed was present before the State Commission and sought time to file their reply to the complaint. The State Commission granted them time till 07.08.2014, as a last chance to file the reply. On the next dates, i.e., 07.08.2014 & 10.10.2014, it has been recorded by the Reader of the Commission that the Bench had not been formed and the case was adjourned for 07.01.2015. On that date, the Bench closed the right of the respondent to file the reply. The record of the Commission on subsequent dates also indicates that on many of the hearings, the Bench had not been formed. The case of the appellant is that they had prepared the written version to the complaint and got it notarised as well on 05.08.2014. The affidavit of the Notary Public Mr. Suresh B. Patwa has been placed on record. An affidavit of main counsel of the appellant Mr. Vishal Jain has also been placed on record that he had received the said written version duly notarised. However, the same was in the custody of his Associate Mr. Anees Ahmed at Jodhpur but could not be filed erroneously on 07.01.2015.

9. From the overall facts and circumstances of the case, it is clear that the State Commission had granted time to the appellant to file reply to the complaint by 07.08.2014. Thereafter, on two hearings on 07.08.2014 and 10.10.2014, the Bench could not be formed. On the next hearing, there was omission on the part of the learned counsel for the appellant to file the said reply on 07.01.2015. It is true that in accordance with the section 13(2) of the Consumer Protection Act, 1986, the written version has to be filed before the concerned Fora, within the extended period of 45 days. The matter has been considered by the Hon’ble Supreme Court on a number of occasions already. In an order passed on 04.02.2015 in Civil Appeal No. 10941 – 10942 / 2013 'New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold-storage Private Limited' [as reported in 15(6) RAG 551]' it was ordered that the written version, which was filed beyond the permissible period, shall not be allowed to be taken on record. However, as per order passed by the Hon’ble Supreme Court on 11.02.2016 in Civil Appeal No. 1083-1084/2016, Bhasin Infotech and Infrastructure Pvt. Ltd. vs. Grand Venezia Buyers Association, and allied matters', the matter stands referred to a larger Bench of the Hon’ble Supreme Court, and it is still under their consideration. In the meantime, however, the Hon’ble Supreme Court passed an order 'Reliance General Insurance Co. Ltd. & Anr. vs. M/s Mampee Timbers & Hardwares Pvt. ltd. & Anr. [Civil Appeal D. No. 2365 of 2017 decided 10.02.2017]', in which, it has been stated as follows:

'We consider it appropriate to direct that pending decision of the larger bench, it will be open to the concerned Fora to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs, and to proceed with

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the matter.' 10. Considering the position stated above and the facts and circumstances of the case, it is felt that it shall be in the interest of justice if the appellant Insurance Company is allowed to file their written version before the State Commission subject to payment of suitable cost to the respondent. It is ordered, therefore, that the said written version may be filed before the State Commission within four weeks from the date of this order, subject to payment of a cost of Rs.50,000/- to the respondent/complainant before filing of the said written version. The State Commission shall accept the written version, only after being satisfied that the cost has been duly paid to the respondent/complainant. Thereafter,the State Commission may proceed further for the disposal of the consumer complaint in accordance with law. The appeal stands allowed in above terms.