IFFCO - Tokio General Insurance Co. Ltd vs Keshar Singh & Anr

Dr. B.C. Gupta, J.

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 16.03.2017, passed by the U.P. State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in First Appeal No. 339/2017, "M/s IFFCO TOKIO General Insurance Co. Ltd. versus Keshar Singh & Anr.", vide which, while dismissing the said appeal on ground of delay of 56 days, the order dated 22.11.2016, passed by the District Forum, Gautam Budha Nagar, U.P. in consumer complaint No. 43/2013, filed by the present respondents, was upheld.

The brief facts of the case are that Keshar Singh was registered owner of a Honda CRV Vehicle HR51AM 5464, which was registered with the Regional Transport Officer (RTO), Faridabad, Haryana. It has been stated in the consumer complaint itself that Keshar Singh sold that vehicle to complainant No. 2, Brij Bhushan Sharma on 17.06.2011 and an intimation to that effect was given to the RTO, Faridabad. The complainant no. 2 also moved an application before the RTO for registration of vehicle in his name. It is further stated that Keshar Singh had taken an insurance policy for the vehicle from the petitioner insurance company, which was got renewed by the said Keshar Singh in his name for a further period from 06.01.2012 to 05.01.2013, although the vehicle had been sold by him on 17.06.2011.

The said vehicle is reported to have been stolen on 23.04.2012 from the residence of the complainant no. 2, Brij Bhushan Sharma, who lodged an FIR No. 385/2012 under section 379 IPC on 24.04.2012 with the concerned Police Station. Both the complainants filed insurance claim with the petitioner company for receiving the insurance amount of ₹19_lakh, but the petitioner/OP refused to pay the claim on the ground that the vehicle had already been sold by the insurance policy holder, i.e., complainant no. 1 to complainant no. 2. It has been stated by the petitioner/OP in their written reply before the District Forum that in accordance with section 157 of the Motor Vehicles Act, an intimation about the sale/transfer of the vehicle had to be given to the insurance company, within a period of 14 days on the prescribed proforma. The complainants filed the consumer complaint in question, seeking directions to the petitioner/OP to pay the insurance amount of ₹19 lakh alongwith interest @18% p.a., compensation of ₹50,000/- towards mental agony and ₹20,000/- as litigation expenses.

The District Forum, after taking into account the averments made by the parties, allowed the consumer complaint vide their order dated 22.11.2016, saying that since, there was a valid insurance policy in respect of the vehicle on the date of the incident, the petitioner/OP was required to pay the claim to complainant no. 1, who was registered owner of the vehicle. Being aggrieved against the order of the District Forum, the petitioner/OP challenged the same by way of an appeal before the State Commission. However, the said Commission dismissed the appeal on the ground that there was a delay of 56 days in filing the same. Being aggrieved against the said order of the State Commission, the petitioner/OP is before this Commission by way of the present revision petition.

During hearing, the learned counsel for the petitioner/OP argued that the present case should have been decided on merits, rather than dismissing the same on grounds of delay only. The learned counsel stated that the complainant had themselves admitted in the consumer complaint itself that the vehicle was sold by complainant No. 1, Keshar Singh to complainant no. 2, Brij Bhushan Sharma on 17.06.2011. It was therefore, the duty of the complainant to move an appropriate application before the insurance company for getting the policy transferred in favour of the new purchaser. The learned counsel has drawn attention to section 157(2) of the Motor Vehicles Act in this regard.

The learned counsel stated that since the policy holder was left with no insurable interest after the sale of the vehicle to complainant no. 2, the petitioner was not bound to pay claim to complainant no. 1. The learned counsel further stated since they had filed an application for condonation of delay, the State Commission should have condoned the delay and decided the appeal on merits. The learned counsel has further drawn attention to the orders passed by the Hon'ble Supreme Court in "Mithailal Dalsangar Singh & Ors. vs. Annabai Devram Kini & Ors." [(2003) 10 SCC 691] and in "N. Balakrishnan vs. M. Krishnamurthy" [(1998) 7 SCC 123] saying that unless there was gross negligence or malafide intention on their part, in making delay in filing the appeal, they should be allowed to contest the case on merits after condoning the delay.

The learned counsel for the complainants/respondents has, however, drawn attention to the impugned order of the State Commission, in which it has been stated that free certified copy of the order of the District Forum was provided to the petitioner/OP on 26.11.2016, whereas they filed the appeal on 20.02.2017, meaning thereby that there was a delay of 56 days in filing the same. The Corporate office of the Insurance Company took a decision to file appeal on 26.12.2016, and the concerned counsel was also contacted on that very day, but no reasonable explanation had been furnished by the petitioner/OP to explain as to why there was a further delay of about 2 months in filing the appeal. The learned counsel argued that there was no justifiable reason for condoning the delay in filing the appeal. Moreover, it had been proved from a copy of the affidavit on record that the same was attested by the notary public on 01.02.2017. There was, therefore, no justification in making a further delay of 20 days to file the appeal on 20.02.2017. The learned counsel further argued that in so far as the merits of the case are concerned, he would require further time to argue the matter on merits.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

The main issue to be decided in the matter is whether the State Commission was justified in dismissing the appeal filed before them by the petitioner/OP on the ground of delay of 56 days in filing the same. An affidavit has been filed by the petitioner/OP before the State Commission in support of their application for condonation of delay filed under section 5 of the Indian Limitation Act. It has been stated therein that a copy of the order of the District Forum dated 22.11.2016 was received by the petitioner/OP/appellant on 03.12.2016 at their branch office at Delhi. The branch office took a decision to file the appeal and sent the case to the Corporate office, seeking their approval.

The Corporate office received the file on 16.12.2016, and took decision to file the appeal on 26.12.2016. A counsel was also contacted on that very day for filing the appeal. However, the said counsel took time to file the appeal due to his busy schedule. It is made out therefore from these facts that the Branch office and the Corporate office of the petitioner/OP took prompt decision to file the appeal, but there was delay of about 2 months in filing the appeal due to inaction of the counsel in handling the matter promptly.

It is evident, therefore, that there was no malafide or dilatory strategy on the part of the Petitioner/OP, which led to delay in filing the appeal before the State Commission. We tend to agree, therefore, with the line of argument taken by the learned counsel for the petitioner/OP that the State Commission should have ordered the condonation of delay in filing the appeal.

It has further been brought out by the petitioner/OP that as admitted by the complainants themselves, the vehicle in question had been sold on 17.06.2011, i.e., much before the theft took place. Since the factum of sale has been admitted by the complainants, they should have taken prompt action in getting the insurance policy transferred in the name of the purchaser. It is necessary, therefore, that the facts of the case are properly studied and analysed as per the settled law on the subject, before taking a decision, whether the claim is payable or not. A perusal of the order passed by the State Commission indicates that vital aspects of the case have not been gone into by the District Forum, before coming to their conclusion.

Based on the discussion above, the present revision petition is allowed and the order passed by the State Commission is set aside. The delay of 56 days in filing the appeal before the State Commission is ordered to be condoned. The matter is remitted back to the State Commission with the directions that the appeal before them should be decided on merits in accordance with settled law on the subject. The parties to bear their own costs.