Ajay Kumar Jaiswal vs Chairman / Managing Director, Reliance

This revision petition has been filed by the petitioner Ajay Kumar Jaiswal against the order dated 27.7.2015 of the State Consumer Disputes Redressal Commission, Uttar Pradesh, (in short 'the State Commission') passed in Appeal No.1878 of 2014.

Brief facts relevant for disposal of the present revision petition are that the petitioner has insured his vehicle with the respondent Insurance Company and the vehicle was stolen within the currency of the insurance policy. The claim was repudiated by the Insurance Company on the ground that the intimation was given quite late to the Insurance Company. The petitioner filed a consumer complaint bearing No.242 of 2011 before the District Consumer Disputes Redressal Forum, Gazipur, (in short 'the District Forum') which was dismissed vide order dated 14.3.2013. The petitioner/complainant then preferred appeal bearing No.1878 of 2014 before the State Commission and the State Commission vide its order dated 27.7.2015 dismissed the appeal in default.

Hence the present revision petition.

Heard the learned counsel for the petitioner at the admission stage. Learned counsel stated that the complainant has a genuine claim of insurance and therefore, the matter be remanded to the State Commission for continuing with the appeal. He further stated that there is a delay of 1148 days in filing the present revision petition. It was stated by the learned counsel that the Advocate who was appearing on behalf of the complainant did not inform the complainant about the dismissal of the appeal in default. The complainant was in touch with that counsel, however, he always gave an impression that the appeal was pending, whereas the appeal was already dismissed vide order dated 27.7.2015 of the State Commission. In support of his arguments, learned counsel referred to the following judgments:-

(1) Executive Officer, Antiyur Town Panchayat Vs. G.Arumugam (dead) by Legal Representatives (2015) 3 Supreme Court Cases 569. It has been held that:-

"4. As held by this Court in State of Nagaland v. Lipok Ao, the court must always take a justice-oriented approach while considering an application for condonation of delay. If the court is convinced that there had been an attempt on the part of the government officials or public servants to defeat justice by causing delay, the court, in view of the larger public interest, should take a lenient view in such situations, condone the delay, howsoever huge may be the delay, and have the matter decided on merits.

Accordingly, we set aside the impugned order and condone the delay of 1373 days in filing the second appeal. The case is remitted to the High Court for further consideration in accordance with law. Interlocutory Application No.2 of 2014 is accordingly disposed of."

(2) K. Subbarayudu and others Vs. Special Deputy Collector (Land Acquisition), (2017) 12 SCC 840. It has been held that:-

"11. The term "sufficient cause" is to receive liberal construction so as to advance substantial justice, when no negligence, inaction or want of bona fide is attributable to the appellants, the Court should adopt a justice-oriented approach in condoning the delay. In State of Nagaland v. Lipok AO and Others (2005) 3 SCC 752: 2005 (4) JT 10, it was held as under:-

"Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go into the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause recorded in the peculiar circumstances of the case is sufficient".

I have carefully considered the arguments advanced by the learned counsel for the petitioner and have examined the record. First of all, it is seen that the reason mentioned in the application for condonation of delay is as follows:-

"5. That even the order passed in the year of 2015 on dated 27.07.2015 and the free certified copy has been send to the present revisionist through the post but never been served upon the present revisionist.

That after lapse of year upon year when the present revisionist has come to know about the status of an appeal then it becomes clear that the same has been dismissed in the year of 2015, then and thereafter the present revisionist has immediate consult with counsel present.

That thereafter on the advise of the counsel, the present revisionist has perused the entire records and applied for the additional certified copy and received the same on 08.04.2019 by the payment of fees as prescribed for the additional copy.

That thereafter the revisionist try to collect the fees requisite for filing and also provides the memo of Appeal along with the certified copies and thereafter the counsel has prepared the present Revision with in time and the affidavit were made on 27.05.2019.

That during the course of vacation the present revision has not been filed with in time as the time taken by the counsel himself in the preparation of the present revision.

That all the formalities has been completed on 24.05.2019 and thereafter the present revision has been swear on 27.05.2019 and filed on 28.05.2019 before the Hon'ble Commission.

That under the circumstances as mention above from the date of receiving the certified copy there is no delay in filing the present revision.

That it is submitted herewith great respect that the delay caused in filing the instant petition has been occasioned for reasons which were beyond the petitioner's control and thus the delay caused is neither deliberate nor intentional but has occurred in circumstances stated hereinabove."

From the above, it seems that the reason mentioned during the arguments has not been stated in the application for condonation of delay. It was stated during the arguments that delay occurred as the counsel did not gave the correct information to the complainant, whereas in the application of condonation of delay, this fact is not mentioned, rather, the reason given is that the certified free copy was not received by the complainant. Further in the application, it is only mentioned that the complainant came to know about the dismissal of the appeal after about 4 years of passing of the order. No reason has been mentioned for the gap of this four years and secondly, nothing is mentioned in the application for condonation of delay as to how the complainant got the information about the dismissal of the appeal. The petitioner has not disclosed the source and exact date of information. Whatever has been argued by the learned counsel during the oral arguments does not match with the record. It seems that true facts are not being brought to the notice of this Commission.

Special periods of limitation have been prescribed under the Consumer Protection Act 1986, its Rules 1987 and its Regulations 2005 so that the consumer disputes are decided 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."

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".

As no ground is mentioned in the application for condonation of delay which can be considered as sufficient cause for condoning the huge delay, it is clear that the petitioner/complainant has not pursued his case with reasonable diligence. The above quoted authoritative judgments of the Hon'ble Supreme Court are fully applicable in the facts and circumstances of the present case and the negligence and deliberate inaction are clearly imputable to the petitioner in filing the present revision petition. It is not the case of the petitioner that the complainant's matter has not been examined. The District Forum has examined the complaint and has dismissed the complaint vide its order dated 14.3.2013. The appeal of the complainant has been dismissed by the State Commission in default vide its order dated 27.7.2015. The story given during the oral arguments by the learned counsel is that the counsel did not inform about the dismissal of the appeal in default, however, this does not absolve the petitioner/complainant to pursue his case and to monitor the progress of his case. Hon'ble Supreme Court of India in Salil Dutta Vs. T.M. and M.C. Private Ltd. 1993 SCR (1) 794 has held 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."

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."

The learned counsel for the petitioner has relied upon Executive Officer, Antiyur Town Panchayat Vs. G.Arumugam (dead) by Legal Representatives (supra) and K. Subbarayudu and others Vs. Special Deputy Collector (Land Acquisition) (supra) to emphasise that huge delays may also be condoned. In Executive Officer, Antiyur Town Panchayat Vs. G.Arumugam (dead) by Legal Representatives (supra), the ratio is that the delays by Government officials should be viewed liberally. In the present case, the delay has been caused by the complainant himself and therefore, this referred judgment does not seem to be applicable in the facts and circumstances of the present case. Another case has been relied upon by the learned counsel for petitioner viz K. Subbarayudu and others Vs. Special Deputy Collector (Land Acquisition) (supra). In this case, the complainant had gone to Kuwait for earning his livelihood and the advocate who had promised to file appeal had actually died before filing of this appeal. In the present case, the complainant was very much in the country and the advocate was also available. In K. Subbarayudu and others Vs. Special Deputy Collector (Land Acquisition) (supra) special consideration has been given to the matter of land acquisition of agriculturists. Therefore, the analogy cannot be drawn between the two cases.

Clearly no reason is given in the application for condonation of delay for huge delay of 1148 days and the reason given during the arguments by the learned counsel cannot be accepted relying upon the judgment of Hon'ble Supreme Court and the Delhi High Court, Salil Dutta Vs. T.M. and M.C. Private Ltd. (supra) and Moddus Media Pvt. Ltd. Vs. M/s. Scone Exhibition Pvt. Ltd. (supra) respectively and in the light of the fact that this reason is not mentioned in the application for condonation of delay. As observed above, the petitioner has not pursued his revision with reasonable diligence. Accordingly, I do not find any merit in the application for condonation of delay and the same is dismissed. Consequently, the revision petition no.1207 of 2019 is also dismissed.