United India Insurance Co. Ltd vs M/S. Sumatex Ltd

These two appeals no.366 of 2015 & 367 of 2015 have been filed by the appellant United India Insurance Company against the order dated 21.11.2014 passed by the State Consumer Disputes Redressal Commission, Rajasthan, (in short 'the State Commission') in CC No.67 of 2012 & 14 of 2013.

Brief facts of the case are that the complainant is a registered company engaged in business of textile. It purchased a High Power Fiber Laser Cutting System machine of Brahmastra model costing Rs.1,57,16,646/- from M/s. Sahajanand Laser Technology Ltd., Gandhinagar, Gujarat. This machine contained two laser modules. First module stopped working on 28.8.2011 and the second module also stopped working on 17.12.2011. The complainant had taken a Machinery Breakdown Insurance Policy from the opposite party and lodged a claim for indemnity for these modules. The Insurance Company conducted a spot survey by appointing one Mr. Ravi Maheshwari and later on it was also inspected by United Technical Services, who is an approved valuer. The company repudiated both these claims on the ground that complainant failed to fulfill its obligation to provide exact cause of losses. Second as per survey report AC temperature was increased to 30 degree celsius as against ideal level of 20 degree celsius which caused the breakdown of modules. The complainant had filed relevant documents and affidavits in support of its claim. The Insurance Company has also filed counter affidavits and other documents.

These two appeals have been filed with delay of 133 days as reported by the registry of this Commission. Both the learned counsel were heard on the application for condonation of delay.

The learned counsel for the appellant stated that the delay has occurred in obtaining higher orders and in the internal legal consultation. The delay is unintentional and bonafide. No prejudice shall be caused to the complainant if the appeals are decided on merits

The learned counsel relied upon the grounds mentioned in the application for condonation of delay and on the judgements which are also mentioned in the application for condonation of delay. The application for condonation of delay mentions the following:-

"3. The aforesaid First Appeal are filed with a delay of .. days, which have not been caused deliberately but on account of various steps required to be taken by the department at different levels before taking a decision for filing a First Appeal before this Hon'ble Commission.

That the records of the case contained voluminous documents in vernacular language which required translation into English. The same took time.

Thereafter the matter was sent to the Head office which is located in Mumbai for seeking approval to file an appeal before the Hon'ble National Commission. The procedure of taking opinion took time.

That the judgment of the Hon'ble Supreme Court reported in 1987 2 SCC 107 (Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others) is cited here for consideration of present petition. Wherein the Hon'ble Supreme Court held that (i) Ordinarily a litigant does not stand to benefit by lodging an appeal late, (ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties, (iii) "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner, (iv) when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right injustice being done because of a non-deliberate delay. (V) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. (VI) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

That the judgment of the Hon'ble Supreme Court reported in 1988 2 SCC 142 (G. Ramegowda, Major and Others Vs. Special Land Acquisition Officer, Bangalore) is cited here for consideration of present petition. Wherein the Hon'ble Supreme Court held that "15. In litigations to which Government is a party there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. 17. Therefore, in assessing what, in a particular case, constitutes "sufficient cause" for purpose of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristics of the functioning of the government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making.

That the judgment of the Hon'ble Supreme Court reported in 1996 3 SCC 132 (State of Haryana Vs. Chandra Mani and Ors.) is cited for consideration of present petition. Wherein the Hon'ble Court has held that "when state is an applicant praying for condonation of delay, it is a common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, the file-pushing and passing-on-the part of the State is less difficult to understand but more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by encumbered process of pushing the files from table to table and keeping it on the table for considerable time causing delay-intentional or otherwise- is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default, no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause " should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay." In a similar case of State of U.P. and others Vs. Harish Chandra and others (1996) 9 SCC 309, by giving similar reasons, the Hon'ble Supreme Court condoned the delay of 480 days in filing the SLP. In yet another case of National insurance Co. Ltd. Vs. Giga Ram and Others (2002) 10 SCC 176, the Hon'ble Supreme Court, after finding that the High Court was not justified in taking too technical a view of the facts and refusing to condone the delay, accepted the case of the Appellant Insurance Company by protecting the interest and condoned the delay."

The learned counsel for the appellant further pleaded that the delay has been properly explained in the application for condonation of delay and delay needs to be condoned in the interest of justice as the appellant has strong merits in its case.

On the other hand, the learned counsel for the respondent complainant stated that there is huge delay of 133 days in filing these appeals. There is no day by day explanation given in the application for condonation of delay and no dates are mentioned for different correspondences mentioned in the application. Though the ground of delay in getting vernacular documents translated has been taken but the fact is that there were no Vernacular documents to be translated.

The learned counsel for the respondent stated that the judgement relied upon by the learned counsel for the appellant in State of U.P. and others Vs. Harish Chandra and others (1996) 9 SCC 309 where delay of more than 400 days has been condoned does not relate to a consumer dispute rather it is related to a personal matter. Therefore, this judgment is not applicable to the present case. Moreover, special periods of limitation have been prescribed under the Consumer Protection Act 1986 for speedy disposal of consumer disputes. Hence the appellant cannot get any advantage from these judgements. The learned counsel further stated that the judgements relied upon by the appellant are quite old and the law that is evolving is not in favour of condoning huge delays in consumer disputes. The learned counsel referred to the judgement of Hon'ble Supreme Court in Postmaster General &Ors. Vs. Living Media India Ltd. &Anr. (2012) 3 SCC 563 and stated that the judgement is fully applicable on the appellant as the appellant is also a semi government organisation. The Supreme court in Postmaster General &Ors. Vs. Living Media India Ltd. &Anr. (supra) has observed as under:-

"29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay".

In support of his arguments, the learned counsel for the respondent relied upon the judgement of Uhbvnl versus Ram Saran & Anr., RP No.1582 of 2012, decided on 07.12.2012, (NC), where in the following has been held:-

"13. In the application, petitioner has simply mentioned about its office procedure for the purpose of filing of appeal/revision. In entire application, it is nowhere mentioned as to what was the sufficient cause for not filing the revision in time. Moreover/petitioner in its application has not mentioned as to before whom the matter seeking approval for filing revision was pending and what was the time taken at each level for getting approval. Application is absolutely vague and same has been filed without any justification. Thus, ex facie, application for condonation of delay does not contain any sufficient cause and has no legal basis. Gross negligence, deliberate inaction and lack of bona fides are imputable to the petitioners."

I have given a thoughtful consideration to the arguments advanced by both the learned counsel for the parties and have examined the record. First of all it is seen that the period of delay is not mentioned in the application for condonation of delay, however, the Registry has reported a delay of 133 days in filing these appeals. It is true that the day to day explanation may not be required, however, at least the broad canvas of delay must be explained by proper reasoning and supporting documents. In consumer disputes, no special status can be assigned to government or semi government organisations or any special treatment may be given to them, so far as condonation of delay is concerned. This view is supported by Honorable Supreme Court in its judgement Postmaster General &Ors. Vs. Living Media India Ltd. &Anr. (supra)

Apart from the above observation, it is seen that the special periods of limitation have been prescribed under the Consumer Protection Act 1986 its Rules 1987 and its Regulations 2005 so that the consumer disputes are decided within a reasonable time as held by the Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) 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 Foras."

Decision of Anshul Aggarwal (Supra) has been reiterated in CicilyKallarackalVs. 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 R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Hon'ble 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".

So far as the judgments relied upon by the learned counsel for the appellant are concerned, first of all it is seen that all the judgments relied upon by the learned counsel for the appellant relate to years 1987 to 1996. None of these judgments relates to Consumer Protection Act, 1986. However, the first judgment in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others (supra) relates to general principles regarding condonation of delay in filing the appeals. There is no doubt about these general principles and they are to be observed and considered while deciding the application for condonation of delay. The Consumer Protection Act, 1986 is a special Act and special periods of limitation have been prescribed in this Act for speedy disposal of consumer disputes as held by the Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority (supra). The other judgments cited above namely, Cicily Kallarackal Vs. Vehicle Factory (Supra), and R.B. Ramlingam Vs. R.B. Bhavaneshwari (supra) reflect recent view taken by the Hon'ble Supreme Court in matters of condonation of delay. The other judgment referred by the appellant in its application for condonation of delay are G. Ramegowda, Major and Others Vs. Special Land Acquisition Officer, Bangalore (supra), State of Haryana Vs. Chandra Mani and Ors. and State of U.P. and others Vs. Harish Chandra and others (supra), which basically emphasize that if the Government is a party in appeal seeking condonation of delay, then it should be kept in mind that the Government is representing public interest rather than individual interest and the public sector deals with its files and issues without any personal attachment and wants to be doubly sure about its decision to file the appeal by obtaining the higher orders. However, in the present case no Government is directly involved, however Government undertaking is involved, which is working in the field of insurance.

First of all, in the present case, no public issue/interest is involved, rather, the decision is to be taken in respect of individual interest of the insured. Moreover, insurance has become a highly competitive sector after liberalization of the Indian economy and therefore, the Government Insurance Companies have to compete with the private Insurance Companies and they have to improve their functioning. Perhaps keeping the changes post liberalization in mind, there are more and more efforts by Government to bring private sector management skills in the public sector to improve its efficiency and that is why the Hon'ble Supreme Court in Postmaster General &Ors. Vs. Living Media India Ltd. &Anr. (supra) has not given any specific concession to the Government agency for condoning the delay. Keeping these considerations in view and the authoritative decisions of the Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority (supra), Cicily Kallarackal Vs. Vehicle Factory (Supra), R.B. Ramlingam Vs. R.B. Bhavaneshwari (supra) and Postmaster General & Ors. Vs. Living Media India Ltd. &Anr. (supra) being fully applicable in the present case, I find that the negligence and deliberate inaction as well as lack of bonafides are imputable to the appellant Insurance Company. The cause shown in the application for condonation of delay is not sufficient to condone the huge delay. Accordingly, the applications for condonation of delay of 133 days in filing the present appeals are dismissed. Consequently, the First Appeal No.366 of 2015 & 367 of 2015 are also dismissed.