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Oriental Insurance Co. Ltd. v/s Balchand Cotton Industries

    First Appeal No. 2399 of 2017 in Complaint No. 10 of 2017

    Decided On, 28 May 2018

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Appellant: Abhishek Kumar, Advocate. For the Respondent: Abhishek Kukkar, Advocate.

Judgment Text

1. Learned Counsel for the respondent has tendered his Vakalatnama, which is taken on record.

This appeal has been filed after the expiry of period of limitation with a delay of 30 days. The appellant has, therefore, moved an application for condonation of delay. Heard. In view of the reason given in the application delay is condoned.

2. This appeal is directed against the order of the State Commission, Rajasthan dated 9.10.2017 closing the right of the opposite party to file written statement. Relevant order is reproduced as under:

“Advocate for the complainant Sh. Aditya Mridula and Advocate for opposite party Sh. Prasant Mantri present.

Advocate for opposite party could not file reply despite of extension of time upto 45 days.

Therefore, the opportunity of filing the reply by the opposite party is closed.

The complainant is directed to file their evidence and documents on 5.1.2018.”

3. Facts relevant for the disposal of the appeal are that the complainant filed the consumer complaint against the appellant Insurance Company alleging deficiency in service. Notice of the complaint issued under Section13 of the Consumer Protection Act, 1986 was served on the opposite party/appellant on 18.7.2017. The opposite party put in appearance before the State Commission through Counsel and a request for extension of time to file the written statement was made vide an application moved on 20.9.2017. The State Commission after hearing the parties allowed the application and granted time upto 9.10.2018 to the opposite party to file written statement. The opposite party, however, failed to meet the deadline. Therefore, on 9.10.2017 right of the opposite party to file written statement was closed by the impugned order.

4. Learned Counsel for the appellant has contended that the State Commission has failed to appreciate that the appellant/opposite was prevented from filing the written statement within the stipulated period because of genuine reason. It is submitted that the reply could not be filed within the stipulated period because due to inadvertence a wrong file was handed over to the dealing Advocate as a result of which the written statement could not be prepared in time. Learned Counsel has contended that the State Commission has failed to appreciate that the appellant has a good case in defence and if he is not allowed to contest the complaint by filing the written statement the appellant would suffer gross injustice.

5. Learned Counsel for the respondent has defended the impugned order and submitted that the State Commission showed indulgence by granting extension of time upto 9.10.2017 to file written statement but the opposite party was grossly negligent. Therefore, in view of the judgment of Hon’ble Supreme Court in the matter of New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd., I (2016) CPJ 1 (SC)=IX (2015) SLT 692=SLP (C) No. 2833 of 2014 & SLP (C) Nos.11257-11258 of 2014 decided on 4.12.2015 the order closing the right of the opposite party to file written statement is justified.

6. I have considered the rival contentions. Looking into the facts and circumstances of the case I find the explanation given by the opposite party/appellant to be reasonable. Hon’ble Supreme Court in the matter of Reliance General Insurance Co. Ltd. and Another v. M/s. Mampee Timbers and Hardwares Pvt. Ltd. & Anr., in Civil Appeal Diary No. 2365 of 2017 has observed as under:

“The question involved in this appeal is whether the time stipulated under Section 13 of the Consumer Protection Act, 1986 for filing written statement is mandatory and whether no flexibility is available with the Court in the interest of justice.

This question has been answered in the affirmative in New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Private Limited in Civil Appeal No. D.35086 of 2013, etc., (2015) 16 SCC 20, reiterating the view in J.J. Merchant and Ors. v. Shrinath Chaturvedi (2002) 6 SCC 635.

Thereafter, the matter has been referred to a Larger Bench in view of contra views in the judgments of this Court in Topline Shoes Limited v. Corporation Bank, (2002) (6) SCC 33, Kailash v. Nankhu (2005) 4 SCC 480 and Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.

It has been brought to our notice that in view of uncertainty in law, proceedings in number of cases is held up before the Consumer Fora.

This Court has passed interim order dated 11.2.2016 in M/s. Bhasin Infotech and Infrastructure Pvt. Ltd. v. M/s. Venezia Buyers Association (Regd.) in C.A. Nos. 1083-1084/2016, to the following effect:

“The proper course in our opinion is to permit the appellant-company to file its response, which was delayed by just about one day. We accordingly permit the appellant to file its reply before the National Commission within two weeks from today subject to payment of Rs. 50,000 as costs to be paid to the opposite party. The Commission can upon deposit of costs proceed with the trial of the complainants on merits after receiving the reply filed by the respondent. The pendency of present proceedings shall not be an impediment for the Commission to do so. This however is subject to the condition that complainant-respondent is ready and willing to take the proceedings forward on the conditions aforementioned. In case the complainant-respondents have any objection to the continuance of the proceedings before the Commission they shall be free to seek stay of such proceedings pending disposal of these appeals in which event the proceedings shall remain stayed till disposal of the present appeals.”

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 the matter.”

7. In view of the above noted position in law and taking note of the overall facts and circumstances of the case, I allow the appeal and condon

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ed the delay in filing of written statement by the opposite party, subject to cost of Rs. 50,000 to be paid by the appellant to the respondent company by way of bank draft in its name on or before the next date of hearing before the State Commission. Impugned order is accordingly set aside and matter is remanded back to the State Commission with the direction to take the written statement of the opposite party on record and dispose of the matter in accordance with law. Opposite party to file written statement in the State Commission within two weeks from today. Advance copy supplied. Parties to appear before the State Commission on 28.6.2018. Ordered accordingly.