Rajesh K. Arya, Member
This appeal has been filed by the opposite party (appellant herein) against order dated 25.06.2019 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (now District Consumer Disputes Redressal Commission-II, U.T., Chandigarh ) (in short ‘the District Commission’), vide which, consumer complaint bearing No.216 of 2017 filed by the complainant (respondent herein) was allowed in the following manner:-
“10] From the above discussion & findings, we are of the opinion that the Opposite Party has wrongly rejected the genuine claim of the complainant and hence acted in a deficient manner. Therefore, the present complaint is allowed with directions to the Opposite Party to pay an amount of Rs.3,03,388/- (total loss Rs.3,26,080/- minus paid amount of Rs.22,692/-) along with interest @9% per annum from the date of loss till realization. The Opposite Party is also directed to pay compensation of Rs.10,000/- for causing harassment to the complainant due to their deficient act, along with litigation cost of Rs.7000/-.
This order shall be complied with by the OP's within a period of 30 days from the date of receipt of copy of this order, failing which they shall be liable to pay additional compensatory cost of Rs.10,000/- apart from the above relief.”
2. Briefly stated the facts are that during the currency of ‘House-holder Insurance Policy’ bearing No.35010648140500000114 obtained by the complainant from Opposite Party, valid from 19.11.2014 to 18.11.2015, covering the building, clothing, kitchenware, furniture, misc. electrical items and jewellary worth Rs.7,32,190/-, on 02.10.2015, she lost her jewellary as her purse in which the said gold jewellary was kept, fell down. DDR was got registered. After reporting the matter to the Opposite Party, claim was also filed but the same was settled only for Rs.22,692/- without following the guidelines issued by IRDA and on the vague ground that only a pair of tops and one ring tallied with the list of items got covered in the policy. The complainant alleged the less settlement of claim to be deficiency in service on the part of the opposite party. On the other hand, the opposite party pleaded that after receiving the intimation qua loss, Sh. S. S. Bedi was deputed as Investigator/Surveyor to investigate and assess the claim, who assessed the claim to the tune of Rs.22,692/-. It was stated that the liability of the Opposite Party was only against the covered articles/jewellery as per the list of articles as mentioned in the proposal form and as such, the claim was settled at Rs.22,692/- as assessed by the Surveyor, which amount was disbursed to the complainant.
3. The parties led evidence in support of their case.
4. The District Commission after hearing the Counsel for the parties and going through the evidence on record allowed the complaint as stated above.
5. It may be stated here that there is a delay of 337 days in filing the present appeal, for condonation whereof, the appellant has also filed a miscellaneous application bearing No.440 of 2020 on the ground that the copy of impugned order dated 25.06.2019 was received by it on 15.07.2019, which was then sent by the Counsel to the Divisional Office of the appellant. It has further been stated that the file was misplaced as the concerned person was on long leave. It has further been stated that when summons in execution case were received, only then, it came to the knowledge about the decision of the case and file was located in the month of April. It has further been stated that thereafter the file was sent to the Regional Office of the appellant at Chandigarh for filing appeal but due to Covid-19, it could not be filed and as such, delay of 337 days occurred.
6. In reply to the application filed by the respondent, it has been stated that the appellant is trying to mislead this Commission as the delay is of more than 365 days in filing the appeal. It has further been stated that neither specific dates have been disclosed nor evidence in order to prove the contents of the application has been filed by the appellant. The respondent, in her reply to the application, placed reliance on the various judgments of Hon’ble Supreme Court of India and Hon’ble National Consumer Disputes Redressal Commission, New Delhi to contend that inordinate delay cannot be condoned without showing sufficient cause as the appellant has failed to explain the reasons and satisfy the cause of delay.
7. However, on merits, the order of the District Commission has been assailed by the appellant/opposite party on the ground that the District commission failed to appreciate the evidence that already the complaint filed by the respondent/complainant before the Ombudsman was dismissed, which order, since not challenged by the respondent, attained finality. It has been further stated that the District Commission, in an arbitrary manner and without any reason, allowed the complaint, against the report of the Surveyor, whose report, as per settled law, cannot be brushed aside without there being any contrary evidence to the same. It has further been stated that the respondent played fraud with the appellant as previously, the policy was taken from Chandigarh Branch and present policy was taken from Branch Office at Kalka. It has further been stated that the District Commission failed to appreciate that items shown as lost and claimed under the policy were of different weight as compared to weight covered by the policy and as such, the liability of the appellant was only against the covered articles as per the list of articles mentioned in the proposal form.
8. On the other hand, on behalf of the respondent, it has been stated that the District Commission, after fully appreciating the facts, documentary evidence on record and the law, rightly allowed the complaint by directing the appellant to pay the loss along with compensation and litigation cost. It has been further stated that since the provisions of Section 3 of Consumer Protection Act, 1986 are in addition and not in derogation to the provisions of any other law for the time being in force, therefore, there was no bar for the respondent to approach Ombudsman. It has further been stated that as per settled preposition of law by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case of Kamleshwari Prasad Singh Vs. N.I.C. Ltd., I (2005) CPJ 107 (NC), the decision of Ombudsman is not binding on the respondent and further the decision of the insurance company to repudiate the claim is subject to adjudication by the Fora constituted under the Consumer Protection Act 1986. It has further been stated that the surveyor verified the loss of the pouch containing the jewellary, however, only the ground for not paying the claim was due to difference in weight. It has further been stated that the respondent being an old lady and in shock was not remembering the exact weight of jewellary items. Moreover, there is no condition in the policy being relied by the appellant, wherein it has been mentioned that no claim would be payable in case there is difference in weight of the jewellary. It has further been stated that the surveyor has nowhere mentioned in his report that the claim is based on fraud and is not genuine. Lastly, it has been prayed that the appeal of the appellant be dismissed with exemplary cost.
9. We have given our thoughtful consideration to the contentions raised by the Counsel for the parties and have also gone through the record of the case and written arguments. We are of the considered view that the appeal filed by the appellant is liable to be dismissed both on limitation as well as on merits for the reasons to be recorded hereinafter.
10. In so far as the point of limitation is concerned, it may be stated here that the delay in filing the appeal is very huge and nothing, in the application or the affidavit filed in support thereof, has been explained as regards this delay in filing the appeal. No cogent and convincing reason has been furnished by the appellant justifying the delay. It is simply stated that the copy of order dated 25.06.2019, though received on 15.07.2019, was sent to the Divisional Office, where it was misplaced, which was located in the month of April and then sent to Regional Office, Chandigarh for filing appeal. It has been stated that due to Covid-19, the appeal could not be filed in time. In our opinion, the reasoning given for delay is vague. Even if we exclude the period, in view of order dated 27.04.2021 passed by the Hon’ble Supreme Court in Miscellaneous Application No.665/2021 in SMW(C) No.3/2020 in Re Cognizance For Extension of Limitation Vs. XXXX, still the appellant has not been able to justify the delay up-to the month of March, 2020. It may also be stated here that in the case of Ram Lal and Ors. Vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361, the Hon’ble Supreme Court has held that it is not a matter of right to get the delay condoned. It is discretion of the Court and where no sufficient reasons are shown for condoning the delay, the Courts / Commissions are within their power and jurisdiction to dismiss such applications. The Hon’ble Supreme Court has held as under:
“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 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.”
6. The test for ascertaining sufficient cause has been laid down by Hon’ble Supreme Court in the case of “R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) CLT 188 (SC) as under:
"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.”
7. In another matter, while dealing with matters under the Act, Hon’ble Supreme court in “Anshul Aggarwal vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578, has held 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 Fora."
11. Counsel for the respondent cited the judgment of Hon’ble Supreme Court of India in the cases of OFFICE OF THE CHIEF POST MASTER GENERAL & ORS versus LIVING MEDIA INDIA LTD. & ANR., II (2012) SLT 312 & STATE OF U.P. THR. EXE. ENGINEER & ANR. Versus AMAR NATH YADAV, III (2014) SLT 740, laying down the law that law of limitation binds everybody including government and condonation of delay is an exception and should not be used as an anticipated benefit for Government Departments and that of National Commission in the case of CHIEF POST MASTER GENERAL STATE OF GUJARAT & ORS versus SURYAKANT RAMPRASAD DERASHREE, II (2020) CPJ 367 (NC), wherein it was held by Hon’ble National Commission that condonation of delay is not a matter of right and sufficient causes are required to be shown in the matter and unless it is so done, discretion for condoning delay should not be exercised in favour of the appellant. In the instant case, the appellant, therefore, has to show from the facts on record that their officials had been acting with due diligence and that they had sufficient reasons for not able to file the appeal within the stipulated period and that there were sufficient reasons which prevented them from approaching the Court within limitation. In the present case, no date is given as to when the file was sent either to the Divisional Office or to the Regional Office at Chandigarh. Even, the name of the official or his/her affidavit was filed, who was on long leave. The date on which the file was misplaced and then located has also not been mentioned. It is settled principle of law that appellant who is making request for condonation of delay has to explain the delay of each and every date. We find no ground to condone the delay. As such, the appeal deserves to be dismissed on the point of limitation.
12. On merits, as regards the contention that the District commission failed to appreciate the evidence that already the complaint filed by the respondent/complainant before the Ombudsman was dismissed, which order, since not challenged by the respondent, attained finality, it may be stated here that the Consumer Protection Act, 1986, which creates Fora for expeditious adjudication and settlement of consumer disputes, is not in derogation of any law in existence, but in addition thereto, as provided in Section 3 thereof. We are of the considered view that the decision of the Ombudsmen is not binding on the respondent and therefore, the complaint preferred before the District Commission was maintainable. We may further add here that under Section 3 of the Consumer Protection Act, 1986, the reliefs available to the complainant are in addition to and not in derogation of any other law for the time being in force. Our view is supported by the judgment of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case Ravi Kumar Vs. United India Insurance Company, Revision Petition No.1801 of 2014 decided on 07.09.2019. In case relied upon by the respondent i.e. Kamleshwari Prasad Singh Vs. N.I.C. Ltd. (supra), it has been held by Hon’ble National Commission that the decision of Ombudsman is not binding on the respondent and further the decision of the insurance company to repudiate the claim is subject to adjudication by the Fora constituted under the Consumer Protection Act 1986. Therefore, this contention of the appellant stands rejected.
13. So far as the other contentions raised by the appellant that the District Commission, in an arbitrarily manner and without any reason, allowed the complaint, against the report of the Surveyor, whose report, as per settled law, cannot be brushed aside without there being any contrary evidence to the same and that the respondent played fraud with the appellant as previously, the policy was taken from Chandigarh Branch and present policy was taken from Branch Office at Kalka, it may be stated here that it is a case, where the Surveyor, in his report, has verified the loss of the pouch containing the jewellary, however, the ground for not paying the claim was due to difference in weight. We have also gone through the Surveyor’s report dated 23.10.2015, Annexure R-3. Nowhere in his report, the surveyor has stated that it was a fraudulent claim and not genuine. He also did not dispute the loss of gold ornaments but confined the claim on the ground that the items lost were of different weights than the items covered under the policy. Rather, we are one with the submission of the respondent that the respondent being an old lady and in shock was not remembering the exact weight of jewellary items. Moreover, the policy does not contain any condition stating that claim will not be payable if difference in weight of the jewellary is found. The District Commission rightly observed that when one loses valuable articles all of a sudden and unable to found the same, under such pressure and stress, one certainly loses sense to exactly remember the weight of the articles and can only rightly tell about the number of articles at the most. Furthermore, the contention that present policy was decisively got renewed from Branch Office at Kalka and got same gold ornaments insured afresh, which allegedly were lost during the previous coverage, has duly been addre
Please Login To View The Full Judgment!
ssed by the District Commission in Para 8 of its order, wherein, it observed that the objection raised is not tenable as before issuing the policy, the Insurer must have checked the items and bills thereof, before insuring it. We also endorse the view of the District Commission that it was not difficult for the appellant to ascertain that the respondent had already availed policy from their company, though from another branch and they had also been paid the claim amount against the claim during the previous coverage. The District Forum presumed that the online status of claim lodged by the respondent must have been available on the Portal of appellant Company and for its own faulty system of functioning, the appellant could not be absolved from its liability. Further perusal of full & final settlement voucher dated 02.11.2015, which was got signed by the appellant from the respondent, transpired that it was blank and no settled amount was mentioned in the said document, which the District Commission held to be not only corroborating the factum of loss of insured articles but also unveiled the arbitrary system adopted by the appellant - Insurance Company. In this view of the matter, the appellant has failed to make out any case to interfere with the well-reasoned order of the District Commission and the present appeal deserves to be dismissed on merits also. 14. For the reasons recorded above, the appeal filed by the appellant/opposite party is dismissed both being barred by limitation and also on merits, with no order as to costs. The impugned order dated 25.06.2019 passed by District Commission-II, U.T., Chandigarh in Consumer Complaint bearing No.216 of 2017 is upheld. 15. Certified copies of this order, be sent to the parties, free of charge. 16. The file be consigned to Record Room, after completion.