Oriental Insurance Co. Ltd vs Laxaman Prasad Kashyap

Shri Radhey Shyam Dwivedi, Advocate is present on Caveat. He is discharged.

(ORAL)

The present revision petition has been filed against the order dated 04.05.2018 passed by Uttar Pradesh Consumer Disputes Redressal Commission ( in short, the State Commission) in Appeal No.615 of 2018. The appeal before the STate Commission has been filed against the order dated 19.12.2017 passed by District Consumer Disputes Redressal Commission Lucknow (First) in complaint case no. 483 of 2009. Vide order dated 19.12.2017, the District forum had allowed the claim of the complainant / respondent.

Along with an appeal no. 615 of 2018, petitioner / opposite party had filed an application for condonation of delay in filing appeal. The delay was stated to be of 73 days. The said application of the petitioner for condonation of delay was dismissed and the present revision petition is against the said order of the State Commission.

It is argued by counsel for the petitioner that petitioner had duly explained day to day delay in filing appeal and yet the same was not considered by the State Commission and it has arbitrarily dismissed the application of the petitioner. For that purpose, counsel has relied on the affidavit of one Shabeena Tabassum, Deputy Manager of the petitioner explaining the delay in filing the appeal. For the sake of convenience, the relevant paragraphs of the said affidavit which explains the delay, are reproduced as under:

"5. That on 22.03.2018 Caveat application was received by aforesaid office i.e. Divisional Office II Lucknow and on enquiring it came to knowledge that aforesaid file was misplaced in Dispatch Department, therefore, it did not reach Regional Office Lucknow. File was searched and on 26.03.2018 aforesaid office also recieved execution notice related to aforesaid matter.

That on 28.03.2018 file containing certified copy of judgment andother document was found and on 28.03.2008 it was sent to Regional Office Lucknow immediately.

That Regional Office Lucknow received the file on same day i.e. 28.03.2018 in late working hours.

That on 29.03.2018 to 01.04.2018 were holiday therefore note before higher officials of Regional Office Lucknow was put on next working day i.e.02.04.2018 and it was decided to file appeal and Advocate Rehana Khan was deputed for filing appeal. She collected the documents on same day.

That draft of statutory amount was prepared on 04.04.2018 and it was handed over to advocate on 04.04.2018.

After considering these facts and hearing the arguments of learned counsel, the State Commission has given the findings which are reproduced as under:

"In the present appeal, it has been stated that file was misplaced in the divisional office of the appellant / respondent, insurance company. The alleged dispatcher who is stated to have got the file misplaced is an employee of the appellant / respondent insurance company and is under their control. Hence since no departmental enquiry is conducted against him the story of the appellant / respondent regarding delay appears to be false and imagined. Hence in the facts of the present case the appellant / respondent insurance company cannot be given benefit of that said judgment of the Hon'ble Commission.

It is argued that observation of the State Commission that no action was taken against the delinquent employee of the petitioner is wrong because suspension order dated 26.04.2018 had already been issued and the concerned official was suspended. It is also admitted by counsel that this fact was never, at any stage, brought to the notice of the State Commission. In view of the fact that this fact that some action taken against the delinquent official of the petitioner has not been brought to the notice of the learned Members of the State Commission, it cannot be said that findings of the State Commission are contrary to the facts or perverse. Even if for the sake of arguments, I accept that action has been taken, the question arises does this fact is sufficient to explain the delay or to condone the delay?

Hon'ble Supreme Court has clearly held in Ram Lal and Ors. Vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361 that condonation of delay is not a matter of right and the party who is seeking condonation need to produce proof of a sufficient cause. Since the condonation of delay is a discretionary jurisdiction vested in the Court, if the sufficient cause is not proved, nothing further is to be done. Hon'ble Supreme court went to the extent that even if sufficient cause is shown, still the Courts can exercise its jurisdiction to dismiss the application for condonation of delay where it is of opinion that parties had not acted with due diligence and in a bonafide manner. Hon'ble Supreme Court in the said matter 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."

The Supreme Court has held in the case of R B Ramlingam Vs. R B Bhavaneshwari I (2009) CLT 188 (SC) that Court has to apply the basic test while dealing with matters relating to condonation to delay. The Hon'ble Supreme Court in the said matter has held 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."

In "Anshul Aggarwal vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578, the Hon'ble Supreme Court while dealing with matters relating to condonation of delay in the consumer cases had clearly held that if the Court adopts the approach of condoning the delay liberally, that would defeat the very purpose for which the Act has been formulated. Hon'ble Supreme Court in the said matter 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."

The reasons given in the application that file was lost, certainly is not a sufficient reason even though some action is proposed against the person who lost the said file. The delay of each and every day has to be explained and from the contentions in the application for condonation of delay, it is apparent that from 22.12.2017 when the certified copy of the judgment was received by the petitioner till notice in the execution petition was received by the petitioner, they were not aware where the file had been lost. It was only after 26.03.2018, the date when petitioner received the execution notice, that petitioner woke up and started searching for the file. It seems that whole action of the petitioner in filing the appeal is just to put an impediment in execution of the respondent. Had petitioner been serious about filing of the appeal, they would have immediately taken up the action and presented the appeal instead of waking up on receiving the execution notice.

In view of these facts, I find no illegality in the impugned order. There is no reason to interfere with the findings of the State Commission. The revision petition has no merit and is dismissed in limine.