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Judgment
PETITIONER /Complainant being aggrieved by impugned order dated 30.5.2013 passed by State Consumer Disputes Redressal Commission, West Bengal (for short, ''State Commission''), vide which appeal filed by Respondents/Opposite Parties was allowed and complaint filed by the petitioner before the District Forum was dismissed, has filed this revision petition. Along with it, an application seeking condonation of delay of 286 days in filing this petition has also been filed.
BRIEF facts are that petitioner has a business of transport agency and owns several goods vehicles (Nos. UP33T/0452, UP33T/53, UP33T/0454, UP33T/0455) other than, Truck bearing No. UP 33T/0451 which was duly insured with Respondents under policy No. 510100/31/06/01/08382 for the period from 20.01.2007 to 19.01.2008. On 07.11.2007, said Truck was parked at Transport Nagar near Dimna Road, Jamsedpur, against parking Token No. 267243 dated 07.11.2007, by the driver, Md. Harul, who was ''given leave'' on the ground of Dewali of Chat Puja. All necessary documents were lying under lock and key with the said vehicle. On 15.11.2007, at about 4 p.m. Mr. P.C. Jain, Branch Manager of petitioner''s firm Jamsedpur area went to the parking place but did not find the vehicle. After enquiry, he did not get any satisfactory reply from the Security Area Manager. The loss of the Truck was informed to Mango P.S. in a written complaint on 17.11.2007 and a criminal case was started before the Ld. Court of CJM, Jamsedpur being No. 46/2008. Respondents were informed of the incident and a claim for the loss was lodged. The claim was repudiated by letter No. 510100/07/196/OD dated 25.8.2009, on the ground that as per report of the investigator, the loss of vehicle was a case of criminal breach of trust under Section 406 IPC and not a case of theft under Section 379 IPC. Hence, a consumer complaint under section 12 of the Act, was filed before the District Consumer Disputes Redressal Forum, Kolkata, Unit -II(for short, ''District Forum''). Respondents filed their written statement, denying therein all allegations with the defence, that case was not maintainable as the subject Truck having engine No. 60A62 451845 and chassis No. 426031ATZ 001496, was not insured with the Insurance Company. Truck that was covered by policy No. 510100/31/06/0100008382 had engine No. 160A624518491849 and Chassis No. 426031A72001506. Further, case was a criminal breach of trust and it did not attract the provisions of the Act.
DISTRICT Forum vide order dated 18.06.2012, allowed the complaint and awarded a sum of Rs. 9,98,400/ - for the loss of truck No. UP -33T/0451 along with Rs. 10,000/ - as compensation for mental pain and agony and Rs. 2,000/ - as cost.
BEING aggrieved, respondents filed appeal before the State Commission, which allowed the same and dismissed the consumer complaint. Hence, the present revision.
I have heard the learned counsel for the petitioner and gone through the record.
ADMITTEDLY , there is a delay of 286 days in filing of present revision. The impugned order was passed on 30.05.2013. Certified copy of the same was received by the petitioner on 12.06.2013. The revision petition was filed before this Commission on 23.06.2014. As per application for condonation of delay, the main grounds on which condonation of delay has been sought read as under; "2. That the Director of the Petitioner Company Sh. Vishal Surekha was not in good health for quite some time. He has been suffering from ... ... ... ... ... ... ... and upon so prolong treatments, he could not advance the cause namely the filing of the present Revision Petition in time. More so, his financial conditions as well as that of the Revision Petitioner was not sound enough to instruct the present counsel for filing and prosecuting the present Petition in time. Due to such deterioration of health and that weak economic situations, Revision Petition got delayed in filing in time. That he was also so depressed, shattered and clueless. Due to other personal constraint at family front, the Revision Petitioner, time was necessarily required for engaging advance at his Hon''ble Commission took some time. Hence, some days delay has been caused in filing this Revision Petition."
PETITIONER is a private company limited. In entire application, it has nowhere been stated as to how many total directors are there in the petitioner''s company, beside Sh. Vishal Surekha. There is no explanation given by the petitioner as to why other Directors were unable to file revision petition within the period of limitation.
BE that as it may, in the entire application it is not stated at all as to from which disease Mr. Vishal Surekha was suffering and for how long he was under medical treatment. Further, nature of ailment has not been mentioned at all. Petitioner has also not stated in the application that for 286 days, Mr. Vishal Surekha was totally confined to bed and was unable to attend his business work. No medical evidence to this effect has been placed on record. It is well settled that "sufficient cause" for condoning the delay in each case is a question of fact.
IN Ram Lal and Ors. Vs. Rewa Coalfields Ltd., : AIR 1962 Supreme Court 361, it has been observed; "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."
SIMILARLY , in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. : AIR 1994 Punjab and Haryana 45, it has been laid down that; "There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence."
In R.B. Ramlingam Vs. R.B. Bhavaneshwari, : 2009 (2) Scale 108, 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."
HON ''ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, : IV (2011) CPJ 63 (SC) has laid down that; "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."
DECISION of Anshul Aggarwal (supra) has been reiterated in Cicily Kallarackal Vs. Vehicle Factory, : IV (2012) CPJ 1 (SC) 1, wherein Hon''ble Supreme Court observed; "4 This Court in Anshul Aggarwal v. NOIDA,, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).
In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.
Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay."
In the present case, no sufficient cause whatsoever has been shown by the petitioner on which condonation of delay has been sought. No grounds whatsoever are made out for condoning the long delay of 286 days. Moreover, a valuable legal right has accrued in the favour of the respondent which cannot be brushed aside lightly.
NOW coming to the merits of this case, State Commission while allowing the appeal of respondents observed; "We have observed that in the Proposal Form (Package Policy) validity period being 20.01.06 to 19.01.07, the vehicle was recorded as ''New'' with Engine No. 60A62451849 and Chassis No. 426031A72001506. The policy was issued accordingly. In the policy (renewed) the vehicle, since registered with the No. UP -33T/451 with the same Engine No. and Chassis No. was insured for the period from 20.01.2007 to 19.01.2008. The vehicle (UP 33T/0451) appears to have been registered by ARTO Raibareli on 21.03.06 about two months after first insurance with Chassis No. 426031ATZ001496 and Engine No. 60A62451845. The discrepancy in Chassis/Engine Nos. as noted in the Insurance Policy vis -vis the Registration certification of the vehicle (Form 23) remains unexplained which gives rise to reasonable doubt that the Complainant does not come in clean hands and the Chassis/Engine Nos. were attempted to be manually put in the subject insurance policy at par with those as recorded in form 23 i.e. the registration certificate of the vehicle. Ld. Forum''s observation that "Mere writing in ink in the copy of the Insurance Policy filed by the Complainant cannot be held that the chassis and Engine No. have been tampered." is a material irregularity and such act on the part of the Complainant/Respondent to suit his purpose for submission of insurance claim against the alleged theft of vehicle surely leads to drawal of adverse inference. We are not inclined to accept the Complainant''s version in this regard. Nor do we agree with the Ld. Forum''s observation.
Further, the driver of the vehicle who was entrusted with the vehicle for its parking was not either made a party or produced for the purpose of evidence/cross examinations.
Case laws cited on behalf of the Complainant/Respondent are of different nature compared to the original complaint of the Complainant/Respondent herein.
Going by the above noted discussions apart from perusal of material facts and evidence on record and also upon hearing of Ld. Advocates appearing for both parties we are of the considered view that the present appeal has got merit and the complaint does not stand.
Hence,
Ordered
that the appeal be and the same is allowed on contest. The impugned order is set aside. The complaint case stands dismissed. There shall be no order as to cost."
THUS , petitioner had tempered with the insurance policy and caused material regularities. Therefore, I find no reasons to disagree with the well -reasoned order passed by the State Commission. Accordingly, present revision petition is not maintainable on limitation as well as on merits. Consequently, present revision petition being barred by limitation as well as on merits, stand dismissed with cost of Rs. 10,000/ - (Rupees Ten Thousand only). Petitioner is directed to deposit cost by way of demand draft in the name of "Consumer Legal Aid Account" within four weeks from today. In case, petitioner fails to deposit the cost within the prescribed period, then it shall be liable to pay interest @ 9% p.a. till realization.
LIST on 4 September, 2015 for compliance 04/09/2015.