w w w . L a w y e r S e r v i c e s . i n



V.P. Padmakumar v/s Insurance Ombudsman & Another


Company & Directors' Information:- I.N. INSURANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U67200DL1994PTC062554

    First Appeal No. 1087 of 2019

    Decided On, 11 February 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. PREM NARAIN
    By, PRESIDING MEMBER

    For the Appellant: Sripradha Krishnan, Advocate. For the Respondents: ------



Judgment Text


This appeal has been filed by the appellant namely ‘Mr. V.P. Padamakumar’ against the order dated 27.07.2018 of the State Consumer Disputes Redressal Commission, Kerala (in short ‘the State Commission’) passed in C.C. No. 181/2017.

2. Brief facts of the case are that the appellant / complainant had taken two insurance policies bearing no. 441800/2008/51 and 441800/48/010/1301. First Policy no. 441800/2008/51 was a personal accident policy with sum assured Rs.25 lacs and second policy no. 441800/48/010/1301 was a group accident policy which was for sum assured of Rs.5 lacs. During the currency of the policies, the appellant / complainant met with an accident by lightening which damaged his ears and consequently his hearing ability. The certificate has been issued by the competent authority that one of the ears of the complainant has lost hearing ability upto 90% and other has lost hearing ability of 10%. The insurance company gave an amount of Rs.3,37,000/- and Rs.2,87,500/- in respect of two policies for the settlement under the policies. Not satisfied with the settlement of the claims, the complainant first represented before the Insurance Ombudsman which vide order dated 11.06.2013 dismissed the complaint. Against the order of the Insurance Ombudsman, the complainant approached the Hon’ble High Court of Kerala and Hon’ble High Court vide its order dated 06.01.2016 gave liberty to the complainant to approach the appropriate forum against the order of the Ombudsman. Then the complainant filed a consumer complaint bearing no. 181/2017 before the State Commission on 26.07.2017. After hearing both the parties, the State Commission dismissed the complaint vide its order dated 27.07.2018 on the ground of limitation. Hence the present appeal.

3. Heard the learned counsel for the appellant and perused record.

4. Learned counsel for the appellant stated that as per policy schedule, the complainant is entitled to 50% of the policy amount and his case has not been heard on merits before any authority or forum. The State Commission has dismissed the complaint on the ground of limitation. It was argued that the order of the Hon’ble High Court was passed on 06.01.2016 and complaint has been filed within two years of passing of this order and hence it cannot be said that complaint has been filed beyond period of two years from the date of cause of action. It was requested that the delay, if any, may be condoned and matter should be remanded to the State Commission for deciding the same on merits.

5. Learned counsel further stated that there is a delay of 298 days in filing the present first appeal. It has been argued by the learned counsel that as the order was against the appellant, he was negatively impacted by the order and that he was not in a position to take any decision for filing the appeal. Learned counsel further stated that Hon’ble Supreme Court in Vibha Bakshi Gokhale and another Vs. Gruhashilp constructions and Others, (2019 SCC Online SC 723) has held that a consumer forum should not adopt a strict approach in condoning the delay. Hence, it was requested to condone the delay.

6. I have carefully considered the arguments advanced by the learned counsel for the appellant and examined the records. First of all, it is seen that there is a delay of 298 days in filing the appeal. In this regard in his application for condonation of delay following has been mentioned:-

“3. It is submitted that the Appellants had received the copy of the ex-parte order dated 27.7.2018 passed by the learned State Commission after 08.08.2018 when it was issued. The appellant was negatively impacted by the dismissal of the order, and thereafter it took the appellant a while before being able to overcome the financial hurdles and requirements before proceeding to this Hon’ble Commission in Appeal.

4. In the above process there is 295 days of delay in filing the present First appeal. The said delay has occurred bona fide and for reasons beyond the control and not at all due to any latches on the part of the appellant. If the delay is not condoned, the appellant would suffer irreparable loss and justice would be denied. Hence the present application.”

7. From the above, it is clear that the appellant in the application for condonation of delay has taken a frivolous ground for condoning the delay. No sufficient cause has been shown for not filing the appeal in time. The criteria of sufficient cause to be shown is not met. Learned counsel has referred to the judgment of the Hon’ble Supreme Court in Vibha Bakshi Gokhale and another Vs. Gruhashilp constructions and Others,( supra), however, it is seen that this judgment is in respect of delay in filing rejoinder and evidence and not for delay in filing appeal or revision. Moreover, this judgment refers to only marginal delays, whereas in the present case the delay is about 300 days which cannot be said to be marginal when the permissible period is only of 30 days. In the present case, the appellant has only stated that he was shocked to receive the judgment of the State Commission, which he received after 08.08.2018. It is not the case that the appellant was not in the knowledge of the judgment as he received the judgment just after few days from the passing of the judgment by the State Commission. If the appellant was not in a position to take a decision whether to file appeal or not to file the appeal, then it is not something that was beyond the control of the appellant. In matters of appeals, the provision in the Consumer Protection Act, 1986 is very clear that the appeal has to be filed within 30 days from the date of order or from the date of knowledge of the order. In the application for condonation of delay, the appellant has not clearly mentioned as to when he received the copy of the State Commission’s order dated 27.7.2018. The appellant is admitting that the copy of the order was sent on 08.08.2018, however, the exact date of receipt by the appellant is not given. Even if 15 days’ time is granted for the service, there is still a delay of 280 days in filing the appeal for which no justification has been given in this application for condonation of delay. The reason given by the appellant was totally within the control of the appellant. One’s a party goes into litigation, it is expected that the order of the court may be passed either in favour or against the party and the party should be ready to receive the judgment of the court with full consciousness and to take further steps in the litigation. In any case, this cannot be considered as sufficient cause for not filing the appeal in time. Hon’ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has observed:

“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.”

8. Decision of Anshul Aggarwal (Supra) has been reiterated in CicilyKallarackal Vs. 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”.

9. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, 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”.

10. From the reasons given in the application for condonation of delay, it is clearly brought out that the appellant has not shown reasonable diligence in prosecution of his appeal. Negligence and deliberate inaction are clearly imputed to the appellant in filing the appeal with delay. No convincing reason has been given in the application for condonation of delay which can be considered as sufficient cause for not filing the appeal in time. Accordingly, the application for condonation of delay is dismissed. Consequently, the present appeal is also liable to be dismissed.

11. Coming to the merits, it is seen that the State Commission has dismissed the complaint on ground of limitation. The following observation has been made by the State Commission while dismissing the complaint on the ground of limitation:

“..... As per the provisions of Section 14 of the Limitation Act, in computing the period of limitation, for any suit the time during which the complainant has been prosecuting with due diligence another proceedings has be excluded. So the period during which the complainant was prosecuting his claim before the Insurance Ombudsman and Hon’ble High Court is to be excluded for computing the period of limitation for filing the complaint. As pointed out by the opposite parties the Hon’ble High Court dismissed the Writ Appeal filed by the complainant on 06.01.2016, and complainant has filed the complaint after about one and half years from the date of passing of the above judgment. In the affidavit filed by the complainant he has not stated when he got the copy of judgment of the Hon’ble High Court. From the endorsement made on the back side of the judgment of the Hon’ble High Court in the writ appeal, it can be seen that the copy of the said judgment was obtained by the complainant on 13.01.2016. Complaint was filed on 26.07.2017, after about one and half years. The reason for that delay stated by the complainant is that he was in financial trouble. We were not satisfied that the complainant has sufficient cause for not filing the complaint within the period of limitation. So the prayer of the complainant to condone the delay in filing the complaint cannot be allowed and I.A. 1041/17 is dismissed as per Section 24-A of the Consumer Protection Act the Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. So the complaint is barred by limitation. Complaint is dismissed.”

12. From the above, it is clear that cause of action actually first arose when the claim was settled by the insurance company in both the policies which was not as per expectation of the complainant. Then cause of action arose when the complaint was dismissed by the Insurance Ombudsman on 11.06.2013. The complainant then chose the forum of High Court to represent against the order of the Insurance Ombudsman. In fact the State Commission has taken cause of action to be the date of settlement of the insurance claims and the period taken in pursuing the case with Ombudsman and in the Hon’ble High Court of Kerala has been taken out of this period. In fact when the Hon’ble High Court gave liberty to approach the appropriate forum against the order of the Insurance Ombudsman, the complainant should have filed the complaint within a reasonable period of 2 or 3 months. The complainant has taken 1 years to file the complaint before the State Commission. The only justification given by the complainant is that his financial condition was not good, therefore, he could not file the complaint in reasonable time. This explanation cannot be accepted as the Consumer Protection Act, 1986 does not impose a high financial burden on the complainant in filing a complaint.

13. The Hon’ble Supreme Court in Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, has observed that even if a sufficient cause has been shown for condoning the delay, it may not be necessary for a Court to condone the delay. The Hon’ble Supreme Court has observed 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.”

14. First of all, I do not find any illegality or shortcoming in the order of the State Commission so far as it relates to its treatment on the aspect of delay in filing the complaint before the State Commission. Clearly section 14 of the Limitation Act provides that the time taken in other courts may not be considered for computing limitation. Even after discounting for the time taken in pursuing the matter with the Insurance Ombudsman and then in the Hon’ble High Court of Kerala, the State Commission has found that delay is beyond two years from the date of cause of action when the settlement of claim was made by the insurance company. Even if the cause of action is treated to be order of rejection of the claim by the Insurance Ombudsman, then also the period till filing of the complaint excluding the time taken in Hon’ble High Court of Kerala comes to more than 2 years which is limitation prescribed under the Consumer Protection Act, 1986. It is seen that in the present case Hon’ble High Court of Kerala passed the order on 06.01.2016, however, the complainant did not take any action to approach any forum as per the liberty granted by the Hon’ble High Court till 26.07.2017 when he filed the complaint before the State Commission. Thus, the complainant has not displayed reasonable diligence in prosecuting his complaint. The judgments of the Hon’ble Supreme Court in Ram Lal and Ors. Vs. Rewa Coalfields Ltd. (supra) and R.B. Ramlingam Vs. R.B. Bhavaneshwari (supra) are fully applicable in the present case and negligence and deliberate inaction are attributable to the complainant in prosecuting his complaint. The State Commission has rightly dismissed the complaint on the ground of limitation. If we calculate the delay from the date of order of the insurance Ombudsman, then it is seen that if period spent before Hon’ble High Court is taken out, this delay is for about 7-8 days and the same may be considered for condonation. However, as per judgment of Hon’ble Supreme Court in Ram Lal and Ors. Vs. Rewa Coalfields Ltd. (su

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pra), this should be seen whether any fruitful purpose would be served even if the delay is condoned and whether delay in filing the complaint and delay in filing the appeal needs to be condoned. For this, the case of the complainant is to be examined on merits also. The complainant is claiming 50% of the insurance amount due to his disability. From the schedule given in the insurance policy, 50% is allowed only when there is loss of hearing – both ears and it is 15% for loss of hearing – one ear. It is the case of the complainant that he has loss of 90% in one ear and 10% in other ear. In fact in the certificate issued by the Amrita Institute of Medical Sciences the following has been mentioned:- “This is to certify that Mr. Padmakumar (not legible) was seen in ENT OPD on 17/07/2010 with history of hearing loss after exposure to lightening. He has monaural percentage of hearing impairment of 10% on right side and 90% on the left side. His binaural percentage of impairment is 25%. Dr. Bharat N.S. Reg. No. 65658 Assistant Professor Department of ENT AIMS, Kochi 15. From the above certificate, it is seen that total disability is only 25% and loss of hearing in one ear is only 10%, therefore, it cannot be considered as loss of hearing of both ears. Thus even on merits, the claim settled by the insurance company does not seem to be in contradiction with the terms of the policy. From this aspect also, I do not see any ground to condone the delay and to remit the matter to the State Commission for deciding the complaint on merits. 16. Based on the above discussion, the First Appeal No.1087 of 2019 is dismissed as being hopelessly barred by limitation as well as on merits.
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