MAHENDRA KUMAR HIRA LAL SHAH vs NEW INDIA ASSURANCE CO. LTD.

THIS appeal has been field after a delay of 15 days. Though the explanation offered in the application for condonation is not quite satisfactory, in the light of the statements made before us by the Counsel for the appellant herein (who was also the Counsel for the appellant before the State Commission) by way of his personal explanation as to how the delay had occurred, we are inclined to condone the delay on terms as to payment of costs. We, accordingly, direct that the delay in filing this appeal shall stand condoned subject to the condition that the appellant shall pay a sum of Rs 500/- by way of costs to the Counsel appearing for the respondent within a period of three weeks from today.

THE Counsel appearing for the appellant addressed us for sometime on the merits of the case but in the light of the discussion which took place at the bar during the course of arguments the Counsel for the appellant finally submitted before us that he would advise his client to pursue the remedy by way of suit where alone there can be proper investigation of the factual question as to whether any bales of cotton belonging to the appellant herein were amongst the lot destroyed by fire in the Ambika mills. We are of opinion that it will be just, right and proper to leave open the questions raised in this appeal without going to the merits of any of the points raised in the appeal memorandum, reserving liberty to the appellant to agitate all his contentions in any suit that he may institute against the respondent herein in respect of the subject-matter of this proceeding. In case the appellant institutes any such suit before the competent Civil Court, we are confident that the Court before which the suit instituted will sympathetically consider any plea made before it by the present appellant under Section 14 of the Limitation Act for the exclusion of the period during which the appellant herein was prosecuting the complaint before the State Commission, Gujarat and also this appeal before this Commission which have had to fail on the ground that the recovery made by him seeking remedy under the Consumer Protection Act was absolutely misconceived since the case involves complicated questions of fact which can be determined in a proper adjudication by a Civil Court. We make it clear that none of the observations made by the State Commission in its order impugned in this appeal shall operate to the prejudice of the complainant in the matter of raising all his contentions before the Civil Court in the suit that he may institute against the respondent. Subject to the aforesaid observations the appeal is dismissed. The appellant shall pay a sum of Rs. 2,500/- by way of cost to the respondent. Appeal dismissed with costs.