GOLDEN TRUST FINANCIAL SERVICES vs Sanjay Kumar Behera

THIS revision is directed against the order of the State Commission dated 27.09.2012 whereby the State Commission dismissed the application of the petitioner opposite party for condonation of delay in filing of appeal and as a consequence, dismissed the appeal on the ground of limitation. The relevant portion of the impugned order is reproduced thus: ''''On perusal of the office note, it is observed that there is inordinate delay of 5 months and 16 days in preferring the appeal and it is submitted by Mr. C.R.Swain, learned counsel appearing for the appellant that he was not served with notice and set ex parte by the learned District Forum and the order has been passed behind his back. On perusal of the impugned judgment and order, it is found that the District Forum has categorically observed that opposite party nos. 1,2 and 4 inspite of receipt of notices / summons did not appear to file their written version and it is only opposite party no.3 i.e. National Insurance Company Limited entered appearance and filed written version. When after the receipt of notice, opposite party no.2/ appellant did not appear and file written version, the submission of the learned counsel for the appellant that he was set ex parte and he did not receive the notice is nothing but false and the delay of 5 months and 16 days, which has occurred has been attempted to be explained away making false submission and when we find that there is absolutely no material to substantiate it, the explanation cannot be accepted to take away a right that has accrued in favour of the complainant / respondent. In the result we reject the misc. case for condonation of the inordinate delay and resultantly, we reject the appeal memo on the ground of limitation. ''''

BRIEFLY stated facts relevant for the disposal of this revision petition are that father of the complainant /respondent, namely, Late Krushna Murty Behera, on the motivation from respondent opposite party Susanta Kumar Pradhan, deposited some amount with the petitioner company and started an insurance policy alleged to have been issued by the National Insurance Company Limited ( OP No.3 in the complaint). The policy covered the risk of accidental death/loss of limbs/permanent -Total Disablement. The insured K.M.Behera met with an accident on 23.04.2004 and sustained injuries resulting in total disablement. The insured submitted claim with the opposite parties which was not settled. Claiming this to be deficiency in service, the petitioner has filed a consumer complaint being the nominee under the policy scheme that the insured policy holder has died on 24.07.2005. The petitioner as also OP No.2 and 4 did not respond to the notice of the complaint. Thus, they were proceeded ex parte. OP No.3 insurance company contested the complaint.

LEARNED Shri Kunal Chatterji, Advocate for the petitioner has contended that State Commission has committed a grave error in dismissing the application of condonation of delay on the assumption that the appeal was filed with inordinate delay of 5 months and 16 days. It is contended that free copy of the order of the District Forum was received by the petitioner on 05.06.2012 and if the period of limitation is computed from the aforesaid date, the appeal should have been filed by 05.07.2012. Therefore, there was a delay of 15 days only because the appeal was filed on 20.07.2012. It is contended that aforesaid 15 days delay occurred because of bureaucratic procedure i.e. taking of legal advice and obtaining sanction for filing the revision petition. He has contended that had the State Commission taken note of the above facts, it would have accepted the explanation for delay given by the petitioner. It is also argued that the petitioner has a very good case in appeal and if the revision is not accepted, a grave injustice would be caused to him.

ON reading of the impugned order, it is evident that State Commission dismissed the application for condonation of delay and the appeal on the premise that delay in filing of appeal was 5 months and 16 days. On perusal of the copy of application for condonation of delay annexed alongwith the appeal, it is evident that the petitioner in the application categorically alleged that free copy of the impugned order of the District Forum was received by him on 05.06.2012. Therefore, the appeal could have been filed by 05.07.2012. Thus, there was delay of only 15 days, which in our view have been sufficiently explained. Therefore, we are of the opinion that the impugned order is based upon wrong assumption of facts and is not sustainable. In view of the above discussion, revision petition is allowed, impugned order is set aside and matter is remanded back to the State Commission with the direction to hear the appeal on merits after service of notice on the parties. Since the matter has been considerably delayed, the State Commission is requested to dispose of the appeal within six months. Parties are directed to appear before the State Commission on 16.04.2014.