Paras Arunbhai Shah vs NEW INDIA INSURANCE CO LTD

LEARNED counsel for the petitioners present. Arguments heard.

THERE is delay of 745 days in filing this revision petition. The petitioners have moved applications for condonation of delay. This must be noted that the State Commission passed an order on 23.3.2012. The writ petition was filed before the High Court on 16.11.2013. There was delay of one year and eight months. In the applications for condonation of delay, the delay has been explained in paras 3 and 4, which are reproduced as hereunder: "3. The petitioner preferred a writ petition, SCA No. 15927/2013 challenging the constitutional validity of sections 10 and 16 of the Consumer Protection Act, 1986 including setting aside of the order of the State Commission dated 23.3.2012 in the State Commission case No. 1749 of 2010 on 16.11.2013.

On 08.09.2014, the High Court dismissed the said petition, however granted liberty to the petitioner to approach this Hon''ble Commission by 10.10.2014 with an application for delay, then the matters would be heard on merits."

LEARNED counsel for the petitioners has invited our attention towards a very lengthy judgment written by Hon''ble High Court. In para 21, it mentions the following facts, which are reproduced as hereunder: "21. Under the circumstances, in view of the statutory alternative remedy available to the petitioners in each of these petitions, the orders under challenge passed by the State Commission are not examined on merits. Having said that, we cannot leave the petitioners without a remedy. We cannot non -suit the petitioners on the ground of availability of alternative remedy and leave such remedy uncertain. This is in response to the reaction of Shri Shukla, learned advocate for respondents No. 1 to 4 that if the petitioners now approach the National Commission, they should be allowed to oppose the delay condonation application that the petitioner may file. Considering the fact that the petitioner may file. Considering the fact that the petitioners were bona fide pursuing the remedies before this Court in the present petitions, it is provided that if the appeal or appeals are filed latest by 10.10.2014, along with the applications for condonation of delay, the appeals would be decided on merits."

It is surprising to note that in this lengthy judgment, the delay of one year and eight months was never discussed by Hon''ble High Court. The applications filed by the petitioner for condonation of delay are vague evasive and lead the Commission nowhere. It is conspicuously silent about the dates. Day -to -day delay was never explained. It must be borne in mind that the filing of the petition before the Hon''ble High Court is not a sufficient ground for condonation of delay. Moreover there is no inkling in the said order that Hon''ble High Court has condoned the delay. It has ordered that appeals (i.e. Revisions) will be decided on merits.

IN M/s Advance Scientific Equipment Ltd. and Anr. Vs. West Bengal Pharma and Photochemical Development Corporation Ltd. (Appeal Civil Nos. 17068 -17069/2010 decided on 09.07.2010), Hon''ble Supreme Court was pleased to hold: " We are further of the view that the petitioners'' venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction."

ANOTHER authority of the Apex Court is Cicily Kallarackal vs. Vehicle Factory, 2012 4 CPJ 1 (SC) 1, wherein it was held: "Despite this, we cannot help but to state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher Court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher Court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercised its jurisdiction in accordance with law. The case is one of improper exercise of jurisdiction. It is not expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds."

It is thus clear that the petitioner was ill advised to file the writ petition before the High Court.

THERE is delay of more than two years. It is not explained why there was delay of one year and eight months in filing the writ petition under Section 227 of the Constitution of India. This factor was not considered by the Hon''ble High Court. The revision petitions are hopelessly barred by limitation. This Consumer Commission in number of cases has taken this view. Out of those, we would mention one Nagamma vs. United India Insurance Co. Ltd. and Anr, 2012 1 CPJ 374 (NC), it has been held as under: "5. It is thus obvious that the petitioner''s choice to seek remedy before the High Court cannot be considered as "sufficient cause" under Section 24 -A of the Consumer Protection Act, 1986 to condone the delay that has occurred in filing this revision petition. The application for condonation of delay is, therefore, liable to be dismissed and consequently, also the revision petition.

THE delay of 745 days remains unexplained and this view finds further support from Anshul Aggarwal v. New Okhla Industrial Development Authority, 2011 4 CPJ 63 (SC), R.B. Ramlingam v. R.B. Bhavaneshwari, 2009 1 CutLT 188; Ram Lal and Others v. Rewa Coalfields Ltd., 1962 AIR(SC) 361 and Bikram Dass Vs. Financial Commissioner and others, 1977 AIR(SC) 2221 and Office of the Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr., 2012 STPL(Web) 132 (SC).

BOTH the revision petitions are liable to be dismissed as barred by limitation.

EVEN on merits, the case of the petitioner is too feeble. This is an undisputable fact that the petitioner was obtaining the policies in question since the year 2000. The value of the policy was Rs.25,000/ -. The said value was increased during the policy period 2006 -2007. Clause 6 of the terms and conditions of the policy (regarding renewal of the policy) states "if the policy is to be renewed for enhancement sum insured then, the restriction as applicable to a fresh policy will apply to additional sum insured as if separate policy has been issued for the deference". It means that the increased value of the policy at the time of renewal of policy contacted under the policy period does not give the benefit of illness, disease, injury, which was in the earlier period. If the patient had after commencing the trouble increased the value of the policy, after the operation of the right leg knee and was discharged on 5.11.2006 within a period of five months, he is not entitled to the benefit. The revision petition is therefore dismissed on limitation as well as on merits.