RELIANCE GENERAL INSURANCE CO. LTD. vs Shree Construction

BY way of present appeal, appellant has challenged impugned order dated 27.9.2011, passed by State Consumer Disputes Redressal Commission, Mumbai (for short as ''State Commission '').

ALONG with this appeal, an application for condonation of delay has also been filed. Brief facts of this case are that a Hydraulic Excavator Make KOBELCO: SK 200-8, an imported brand new model belonging to the respondent/complainant was insured with the petitioner/OP for a total sum of Rs. 48,50,000. The said Hydraulic Excavator while in operation working at the Marshy land for excavation of sand near Dungi river in Panvel, District Raigad, on 25.12.2007 around 6.00 p.m. fell in the ditch and, thereby, it got damaged due to mud and sludge which entered into the engine and machinery of the said Hydraulic Excavator. Efforts to take out Hydraulic Excavator proved futile. Petitioner was immediately informed and since there were instructions not to remove the said Hydraulic Excavator, until there is a survey, it remained at the site of accident for 4-5 days. The loss was estimated as assessed by company ''s approved agency namely M/s. Suretech Infrastructure Pvt. Ltd. and even confirmed by the Surveyor M.R. Jhalani and Associates, who assessed the loss at Rs. 30,95,000 and submitted his final survey report dated 22.1.2008. However, petitioner repudiated the claim referring to the exclusion clause in the policy "loss or damage due to total or partial immersion in tidal water ". Hence, respondent filed a consumer complaint.

PETITIONER filed their written version and justified the repudiation on the grounds mentioned earlier.

STATE Commission, partly allowed the complaint and passed the following directions: "(i) Opponent-M/s. Reliance General Insurance Co. Ltd. do pay Rs. 33,50,000 (Rupees thirty-three lakh fifty thousand only) to the complainant along with interest @ 12% p.a. from the date of complaint i.e. 13.3.2009 till its realization. (ii) The opponent to bear its own costs and pay Rs. 25,000 (Rupees twenty-five thousand only) as costs to the complainant. "

Aggrieved by the above impugned order, appellant has filed the present appeal.

TAKING up the application for condonation of delay, it is contended by learned Counsel for the appellant that appellant is a corporate house and before filing an appeal, it has to take approval from the corporate office. Since, approval process took longer, thus, it has resulted in delay in filing of the appeal.

IN support, learned Counsel has relied upon a decision of Apex Court, Milk Specialities Ltd. v. Rajiv Singh, 2005 (2) SCC 402. Since, there is delay of 70 days, appellant has to show that there are sufficient grounds for condoning the delay. Relevant averments with regard to delay as made in paras 3 and 4 of the application, are reproduced as under: "3. That the Appellant is a Corporate House and it is necessary for the appellant to take approval for the said appeal from its corporate office. 4. That the present case belongs to the State of Maharashtra and the Appellant collected the certified copy of the impugned order passed by the Hon ''ble State Commission, Maharashtra on 29.11.2011. "

IN entire application, it is nowhere stated as to when certified copy of the impugned order was obtained by the appellant, on which date it was sent to the corporate office for approval and on which date approval came. The application is absolutely silent on these material facts.

IN HUDA v. Shakuntala Devi, II (2012) CPJ 314 (NC), this Commission while dealing with Section 24A of the Consumer Protection Act, 1986, has held: "The expression ''sufficient cause '' has not been defined in the Act, rightly so, as it would vary from facts and circumstances of each case. At the same time, while examining the question of condonation of delay, it has to be kept in mind that it is the duty of the condoning authority to record satisfaction of the explanation submitted as to whether it is reasonable and satisfactory which is essential pre-requisite for condonation of delay. It is equally well settled that the delay cannot be condoned on the ground of equity as well as on the ground of generosity. As regards the ground taken in the first application it would transpire that totally vague and ambiguous assertion has been made. Except the reason that appellant Estate Officer, Rewari was having the dual charge of the office of SDM, no sufficient reason was given by the appellant for the condonation of delay in filing the appeal. It cannot be ignored that there is a delay of 181 days in filing the appeal and no datewise movement of the file has been mentioned in the application. The appellant has failed to mention that on which date matter was put up before him (Estate Officer) and on which date decision to file the appeal was taken. As far as the departmental delay is concerned, it has been observed by the Hon ''ble National Commission in case titled Union of India v. Vijay Laxmi, reported in 2006 (1) CPC 61 (NC), where the petitioner claimed condonation of 65 days delay in filing the revision petition on the ground that the delay occurred as the matter had to be examined at various levels by the various Government departments. While repelling the prayer made it was observed that the petitioner had not disclosed the datewise movement of the file from one table to another table. It was further stated that no urgency had been shown from the side of the petitioner and the approach had been casual and for that reason it was not condoned. The Hon ''ble Apex Court has also observed in case titled State of Nagaland v. Lipokao and Others, reported in 2005 (2) RCR (Criminal) 414, that ''proof of sufficient cause is a condition precedent for exercise of discretion by the Court in condoning the delay ''. Further in case titled D. Gopinathan Pillai v. State of Kerala and Another, reported in (2007) 2 SCC 322, it has been held by the Hon ''ble Apex Court that ''when mandatory provision is not complied and the delay is not properly satisfactorily and convincingly explained, the Court cannot condone the delay on sympathetic ground only ''. Under the circumstances, the reasons given in the application were taken as inadequate and insufficient to condone the delay. The ratio of the above mentioned case fully applies to the facts and circumstances of the present case. Therefore, the ground stated in the application cannot constitute sufficient cause so as to condone the delay in filing the appeal as prayed for in the application from the side of the appellants. Therefore, the application for condonation of delay in filing the appeal is rejected. "

In the case in hand, in the application for condonation of delay, it is nowhere stated as to when the certified copy was received by the appellant, when the same was sent to the corporate office for approval and when approval came. Moreover, name of any official who had dealt with this file has not been mentioned nor their affidavits have been filed. Thus, no sufficient cause has been shown which entitles the appellant to have the delay condoned.

NOW coming to the merits of this case, defence of respondent is that since the excavator in question was damaged due to tidal waves in the sea, claim of respondent was rightly repudiated, as it is not covered under the policy in question.

IN this regard, State Commission observed: "In the instance case, referring to the material which is tendered in evidence and except the one which are referred by the parties to which there is no dispute, namely, final survey report, except for applicability of exclusion clause and the letter of repudiation except for the correctness of the reasons mentioned therein; we find Insurance Company failed to justify their repudiation. Repudiation is mainly on the ground that loss or damage caused due to immersion in tidal water. Relevant portion of the final survey report reads as under - ''3.2: Later during high tide the level of sea water rose and the excavator got immersed in sea water. 4.5: The engine was then inspected in completely open condition at M/s. Suretech ''s workshop on 16.1.2007 and detailed discussions were held with service engineers of M/s. Suretech and M/s. Kobelco. It was found that the sea water had entered inside the engine and crank shaft, bearings, cylinder head, turbo charger, sensors, mount rubber, valve assembly muffler etc. of the engine assembly were badly rusted and pitted due to prolong contact with sea water and were rendered totally useless. Except for the body of the engine rest of the things were badly damaged and required to be replaced. " In the written version Insurance Company referred to Panchang, but no such Panchang is produced. Besides that it is revealed from the record that the site of accident is by the side of river Dungi, which meet to the sea at about 2-3 k.m. away from the said site. In. para 2.3 of the final survey report, supra, it is mentioned that the insured are using the excavator to remove upper layer (about 3-4 ft.) of the marshy land, about 20-30 mtrs. away from sea. In a letter dated 12.2.2008 written by the Surveyor M.R. Jhalani, it is mentioned that the site of accident was about 500 metres inside from the main road. Kachha road is constructed to allow movement of vehicles till the site of excavation. On the left side of the Kachha road is a small stream of water called Dungi River. The Kachha road is at the raised level of about 3-4 ft. from the surrounding ground level. The site is located in bay area and is totally unoccupied and the site is surrounded by marshy land. It is also mentioned that work of extracting sand is carried out near Dungi river near Belapur which is about 2-3 k.m. away from the site of the accident. Thus, there is hardly any evidence led on record by the Insurance Company to show and establish about timing of high tide. Secondly, it failed to establish about high tide line or boundary of the sea as to whether such high tide level covers the accident site, etc. In absence of such evidence, it cannot be stated that the site of the accident, which is a marshy land is covered by high tide level and high tide sea water actually entered therein. Evidence on record is also silent about the excavator submerging into the tidal water. In fact, complainant when occasioned to visit the site immediately after the accident had categorically denied the fact that about submerging said excavator in the tidal water. Thus, from the material placed on record, it cannot be said that the Insurance Company has made out a case to justify repudiation referring to the exclusion clause, supra. Thus, repudiation of the insurance claim is per se arbitrary and without any foundation. Hence, deficiency on the part of the Insurance Company is well established on this count. "

We find no reason to disagree with the above reasoning given by the State Commission. There is no infirmity or ambiguity in the impugned order.

UNDER these circumstances, present appeal is barred by limitation as well as appellant has no case on merits. Consequently, present appeal stands dismissed with costs of Rs. 10,000.

PETITIONER is accordingly directed to deposit the costs by way of demand draft for the sum of Rs. 10,000 (Rupees ten thousand only) in the name of "Consumer Legal Aid Account " within four weeks from today. Pending application, if any, stand dismissed.

IN case, costs are not deposited within the prescribed period, appellant shall be liable to pay interest @ 9% p.a., till realization.

LIST on 17.8.2012 for compliance. Appeal dismissed.