This first appeal has been filed by the appellant M/s. Deluxe Enterprise against the order dated 15.11.2010 of the State Consumer Disputes Redressal Commission, Himachal Pradesh (in short ‘the State Commission’) passed in Original Complaint no.6/2007.
2. Brief facts of the case are that the appellant/complainant who was engaged in the manufacturing of cotton yarn, purchased a fire policy from the respondent for raw material for a sum of Rs.2,80,00,000/- by paying premium of Rs.84,584/- for the period 4.08.2005 to 3.08.2006. On the intervening night of 29th and 30th September, 2005, the fire took place in the blow room hall of the factory premises. Surveyor J. Lal & Co. visited the premises on 12.10.2005 with respect to the loss suffered. Since opposite party was not finalizing the claim, complainant sent legal notice dated 16.04.2007 and ultimately opposite party settled the claim for a sum of Rs.7,79,514/- against the total claim of Rs.33,64,408.32 and cheque was issued on 22.05.2007. However, since the claim was not finally decided by the respondent Insurance Company, complainant preferred a complaint before the State Commission. The said complaint was dismissed for non-prosecution in the absence of the complainant as under:-
“This case was called on its own turn when learned counsel for the OP was present, but none appeared for the complainant as such it was passed over. Then for the second time it was called along with passed over cases. Again no one appeared on behalf of the complainant, however, counsel for OP was present.”
3. Hence the present appeal.
4. Heard the AR of the appellant and the learned counsel for the respondent. The AR of the appellant stated that the claim of the complainant was for Rs.33,64,408.32, whereas the insurance company wanted to settle the claim for Rs.7,79,514/-. Though the insurance company issued the cheque for settlement of the claim, but the appellant did not accept the same and returned the cheque. The State Commission has dismissed the complaint in default. The AR of the appellant stated that appellant was under bonafide impression that its counsel was taking due care for safeguarding the interest of the complainant. However, the counsel of the appellant before the State Commission kept the appellant in dark and did not inform that the complaint was dismissed in default vide order dated 15.11.2010 of the State Commission. It was argued that a party should not suffer on account of lapse and deficiency on the part of the counsel of the party. It is the settled law that the substantial justice should not be allowed to suffer on the grounds of technical considerations such as non-appearance of the counsel for the complainant. It was further emphasized by the AR of the appellant that the appellant has strong case and the complaint needs to be decided on merits in the facts and circumstances of the case.
5. AR of the appellant states that there is a delay of 1194 days in filing the present first appeal. The delay has occurred due to the fact that the counsel of the appellant before the State Commission gave assurance that he will file the restoration application before the State Commission. As the order of the State Commission dated 15.11.2010 was received by the appellant in the third week of December, 2010, the appellant was in constant touch with the concerned counsel, however, no specific answer was given by the counsel. It was only stated that the restoration application was pending before the State Commission. It was stated that in the last week of March 2014 when the representative of the appellant telephonically contacted the said counsel so as to know the latest status of the said complaint case, the said Advocate kept on avoiding talking on phone and also refused to allow an appointment for a meeting with the representative of the appellant. Then the appellant contacted other Advocates in the State Commission and it was informed to the appellant that the State Commission does not have power to restore the complaint. Then the present first appeal has been filed on 21.04.2014. Thus, the delay in filing the present first appeal is not intentional or deliberated, rather it has been caused by the circumstances which were beyond the control of the appellant.
6. On the other hand, learned counsel for the respondent stated that there is a huge delay in filing the present appeal and from the application for condonation of delay filed by the appellant it is clear that the appellant had not taken any action to file the present appeal after receiving the copy of the order of the State Commission in third week of December, 2010 till March, 2014 when it has been alleged that the Advocate refused to talk to the appellant. When the impugned order was already received by the appellant in December, 2010, it was the duty of the appellant to have filed the appeal in time but no action was taken for about more than three years and then suddenly the appeal has been filed. Even if the appellant genuinely believed its counsel that the restoration application has been filed, the appellant should have deputed its representative on any date of appearance to find out the progress.
7. On merits, learned counsel for the respondent stated that the surveyor has assessed the loss to the tune of Rs.7,80,043/- and the insurance company agreed to settle the claim for the amount assessed by the surveyor. The complainant did not agree with the same and had filed the complaint before the State Commission. There is no merit in the complaint as the insurance claim is to be settled on the basis of the report of the surveyor.
8. I have carefully considered the arguments advanced by both the sides and examined the record. In the present first appeal, there is a huge delay of 1194 days in filing the appeal. The appellant admits in its application for condonation of delay that the certified copy of the order was received in the third week of December, 2010. Though counsel for the appellant before the State Commission has been blamed for the delay, the appellant has not disclosed in its application for condonation of delay anything about the steps taken by the appellant from December, 2010 till March, 2014 i.e. in a period of more than three years. Special periods of limitation have been prescribed in the Consumer Protection Act, 1986, its Rules 1987 and its Regulations 2005 for speedy disposal of consumer disputes so that the consumer disputes are finally settled within a reasonable time as held by the Hon’ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) as under:-
“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.”
9. Decision of Anshul Aggarwal (Supra) has been reiterated in CicilyKallarackalVs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon’ble Supreme Court observed;
“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.”
10. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Hon’ble Supreme Court 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”.
11. Above judgments of the Hon’ble Supreme Court are fully applicable in the present case. As observed above, the complainant did not take any steps to file the appeal till March, 2014 though the appellant had received the certified copy of the order in December, 2010. No proof has been filed to show that any steps were taken by the appellant and the appellant was constrained to file the appeal in time. The only reason for the whole delay has been stated to be the deficiency and lapse on the part of the Advocate appearing before the State Commission. There is no justification for the appellant to continue asking the same information from his counsel without verifying the same atleast after a lapse of one year or two years. In fact, a party has to be vigilant for its case even though authority is given to the counsel to contest the case. Hon’ble Supreme Court of India in Salil Dutta Vs. T.M. and M.C. Private Ltd. 1993 SCR (1) 794 has observed the following:-
“The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. It is true that in certain situations, the Court may, in the interest of justice, set a side a dismissal order or an ex-parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is not such abso lute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq must be understood in the facts and circumstances of that case and cannot be understood as an absolute proposition. As we have mentioned hereinabove, this was an on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, where the Court is located. The defendant is also not a rustic ignorant villager but a private limited company with its head-office at Calcutta itself and managed by educated businessmen who know where their interest lies. It is evident that when their applications were not disposed of before taking up the suit for final hewing they felt piqued and refused to appear before the court. May be, it was part of their delaying tactics as alleged by the plaintiff. May be not. But one thing is clear they 'chose to non-cooperate with the court. Having adopted such a stand towards the Court, the defendant has no right to ask its indulgence. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted.”
12. Similarly, Hon’ble High Court of Delhi at New Delhi, in Moddus Media Pvt. Ltd. Vs. M/s. Scone Exhibition Pvt. Ltd. RFA No.497 of 2017, decided on 18.5.2017, has held that:-
“11. The litigant owes a duty to be vigilant of his rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against him or initiated at his instance. The litigant cannot be permitted to cast the entire blame on the Advocate. It appears that the blame is being attributed on the Advocate with a view to get the delay condoned and avoid the decree. After filing the civil suit or written statement, the litigant cannot go off to sleep and wake up from a deep slumber after passing a long time as if the court is storage of the suits filed by such negligent litigants. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory put forth by the appellant/applicant/defendant company, which cannot be accepted and ought not to have been accepted. The appellant is not a simple or rustic illiterate person but a Private Limited Company managed by educated businessmen, who know very well where their interest lies. The litigant is to be vigilant and pursue his case diligently on all the hearings. If the litigant does not appear in the court and leaves the case at the mercy of his counsel without caring as to what different frivolous pleas/defences being taken by his counsel for adjournments is bound to suffer. If the litigant does not turn up to obtain the copies of judgment and orders of the court so as to find out what orders are passed by the court is liable to bear the consequences.”
13. Thus, from the above considerations, there is no justification for allowing the application for condonation of delay as the negligence, deliberate inaction and lack of bonafide are imputable to the appellant in filing its appeal. Clearly, reasonable diligence has not been shown on the part of the appellant in prosecution of the appeal. Moreover, Hon’ble Supreme Court in Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, has 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
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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.” 14. In the present case, neither the sufficient cause has been shown for the delay nor there seems to be any justification for condoning the delay in the facts and circumstances of the present case. 15. Based on the above discussion, the application for condonation of delay filed along with first appeal no.237 of 2014 is dismissed and consequently the first appeal is also dismissed. However, in the facts and circumstances of the case, it is ordered that if the complainant/appellant has not been paid the amount which was being paid by the Insurance Company for settlement of the claim, the insurance company will send the valid cheque for an amount of settlement (Rs.7,79,514/-) along with interest @ 5% p.a. from the date of the order of the State Commission i.e. from 15.11.2010 till payment.