KRISHNA RAM vs NEW INDIA INSURANCE CO . LTD

This revision petition has been filed by the petitioner, Krishna Ram assailing the order dated 15.12.2006 (the actual date is 13.12.2006) of the State Consumer Disputes Redressal Commission, Jharkhand, Ranchi (hereinafter referred to as "the State Commission") passed in Appeal No.327/2005 & Appeal No.262/2005.

Brief facts of the case are that the petitioner/complainant being an unemployed youth took a loan of Rs.80,000/- under Prime Minister Rozgar Yojna (PMRY) from OP-2, State Bank of India for starting business of readymade garments. The stock kept in the shop of the complainant was insured by the bank with OP-1, New India Assurance Company Ltd. The Insurance Company insured the stock and shops vide policy No.4854090123470 valid from 12.03.1999 to 11.03.2000. As per the complainant, a theft was committed in the shop on 29.09.1999 and all the stock was stolen. The complainant/petitioner lodged an FIR on 30.09.1999, but police did not register the FIR. On the instruction of Superintendent of Police, the FIR was finally registered on 25.10.1999. However the police filed the Final Report (FR) in the case. The complainant also informed the Insurance Company and the Insurance Company appointed a surveyor. The surveyor submitted his report. The complainant lodged insurance claim of Rs.80,000/- with the Insurance Company vide claim No.48/540901/99-01/02, but the Insurance Company did not settle the claim. Thereupon the complainant filed a consumer complaint before the District Consumer Disputes Redressal Forum, Garhwa(hereinafter referred to as "the District Forum") for a claim of Rs.1,62,000/- being Complaint No.73 of 2003. The District Forum vide its order dated 11.02.2004 dismissed the complaint.

Aggrieved with the dismissal of his complaint by the District Forum, the complainant preferred an appeal before the State Commission bearing Appeal No.85/2004. The State Commission vide order dated 02.12.2004 remanded the case back to the District Forum for deciding afresh. Vide its order dated 21.07.2005, the District Forum dismissed the claim against the OP-1, Insurance Company and restrained OP-2, the State Bank of India from recovering any amount from the complainant.

Aggrieved by the order dated 21.07.2005 of the District Forum, the complainant as well as the respondent No.2/OP-2 both preferred Appeal No. 262/2005 and 327/2005, respectively before the State Commission. The learned State Commission vide its order dated 13.12.2006 allowed the appeal No.327 of 2005 filed by the OP-2 State Bank of India, whereas the Appeal No.262 of 2005 filed by the complainant Krishna Ram was dismissed.

Aggrieved with the above order of the State Commission, the present revision petition has been filed by the petitioner/Complainant.

Heard the learned counsel for the petitioner as well as for respondent No.1. The respondent No.2 was proceeded ex-parte vide order dated 07.04.2015 of this Commission.

The learned counsel for the petitioner stated that the District Forum has erred in giving its finding that no items were disclosed which were stolen. Inspite of the information having been given to the police, the FIR was not registered. However, after the intervention of the Superintendent of Police, FIR was registered. As the FIR was registered by the police on the order of the Superintendent of Police, the local Police officials of the Thana tried their best to disprove theft and finally the Final Report (FR) was submitted that the incident of theft was not proved. The complainant had already filed a complaint before the Chief Judicial Magistrate (CJM) and the CJM vide its order dated 02.06.2003 has clearly given his finding that incident of commission of theft after breaking opening the lock of the shop has been confirmed. Though the complaint filed before the CJM was dismissed because no witness came forward to tell the names of the accused, but the finding of the CJM that the incident had occurred is very important and cannot be refuted by the respondent No.1. If the incident of theft is confirmed, then the respondent No.1 is liable to pay the insurance claim. The State Commission in its impugned order dated 13.12.2016 has not considered all these aspects and has summarily rejected the appeal filed by the complainant and accepted the appeal filed by the respondent No.2, State Bank of India. Based on the confirmation of the theft by the CJM, respondent No.1/Insurance Company is liable to pay the insurance claim.

The learned counsel for the petitioner also mentioned that there has been some delay in filling the revision petition and the delay has been due to the fact that the petitioner/complainant moved to the Jharkhand High Court against the order dated 13.12.2006 of the State Commission. When the Writ Petition No.766 of 2007 was dismissed by the Hon''ble High Court on 12.07.2007 and as per the observation of the Jharkhand High Court that if advised, petitioner may approach the National Commission, the present revision petition has been filed. After the dismissal of the Writ Petition No.766 of 2007 by the Jharkhand High Court, petitioner tried his best to immediately file the revision petition. However, as his father was very seriously ill, the petitioner could not go out to take steps to file the revision petition in time. Based on these circumstances, the learned counsel prayed for condonation of delay in filling the revision petition.

On the other hand, the learned counsel for the respondent No.1, Insurance Company stated that first of all no FIR was lodged immediately after the incident. It is alleged that om the intervention of the Superintendent of Police, FIR was lodged. The fact of the matter is that the FIR has been lodged on 25.10.1999, whereas, the incident of theft occurred on 29.09.1999. So this FIR has no meaning it has been inordinately delayed. The learned counsel further mentioned that Police has investigated the case and finally FR dated 30.11.1999 was filed. This FR clearly states that after investigation, the incident of theft has been found to be untrue. Thus, there is no question of any insurance claim if incident of theft has been found to be untrue by the investigation of the Police.

The learned counsel for respondent No.1 further pointed out that the surveyor was appointed to look into the matter who has submitted his report dated 26.03.2001 clearly stating that the incident was untrue and it was stage- managed by the insured/complainant to make good, dues of the State Bank of India. The surveyor recommended that the claim was not payable to the insured. So far as order of the CJM is concerned, it is not complete order. On the one hand, the CJM is confirming the incident, but has dismissed the complaint filed by the complainant. So, no inference can be drawn in favour of the complainant from this order. The learned counsel also opposed the application for condonation of delay filed by the petitioner.

We have carefully considered the arguments advanced by both the sides and have examined the record. Hon''ble Supreme Court in State Bank of India Vs. M/s. B.S. Agricultural Industries (I) AIR 2009 SC 2210 has held that: " 8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, shall not admit a complaint'' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside".

In R.B. RamlingamVs. 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."

Based on the opinion expressed by the Hon''ble Supreme Court in aforementioned cases, we have to first examine the delay in filing the revision petition. Office has reported a delay of more than 1000 days in filing the present revision petition. In this regard, the petitioner''s case is that against the order dated 13.12.2006 of the State Commission, the petitioner filed W.P. No.766 of 2007 before the Jharkhand High Court, which was ultimately dismissed on 12.07.2007 and it was mentioned in the dismissal order that the petitioner if advised may approach the National Commission. Accordingly, the present revision petition has been filed. The application for condonation of delay mentions the following:- "4. That the lawyer of appellant at Ranchi sent certified copy of the order passed in W.P.(C) 766/07 on 25.07.07 but due to multiple fracture and illness of his father Bali Ram this appellant was not able to move anywhere till 07.1.08 therefore on 08.1.08 he contacted his local lawyer for preparation of the memo of appeal who take time of one day and prepared the same and handed over to this appellant on 08.1.08 thereafter about three day has been taken in coming to Delhi thus delay is caused due to unavoidable reasons which should be condoned in the ends by Justice.---."

First of all, a wrong remedy was pursued to assail the order dated 13.12.2006 of the State Commission. Even after dismissal of W.P. No.766 of 2007 filed by the petitioner on 12.07.2007, the revision petition has been filed on 15.01.2008. If we calculate the delay from the date of order of the State Commission, which was very much in the knowledge of the petitioner, the delay in filing the revision petition is about more than 300 days. Though pursuing wrong remedy cannot be accepted as sufficient cause to condone the delay, yet, even if the date of order of the dismissal of the W.P. No.766 of 2007 is taken into account, the delay still comes to more than 90 days in filling the revision petition. Petitioner has claimed that he could not move about because his father was ill. Petitioner himself was not ill and he should have pursued his remedy by filing the revision petition in time, which he did not do. Illness of the father is not a sufficient ground to condone such long delay. Here it is to be noted that the special limitation periods have been prescribed under Consumer Protection Act, 1986 for speedy disposal of consumer disputes. 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 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 ."

Based on the above examination and on the basis of aforesaid authoritative judgements, we do not find any sufficient cause for condoning the delay. Hence the application for condonation of delay is liable to be dismissed.

The fact that the FIR was not lodged by the Police on 30.09.1999 indicates that the Police might have had apprehension about the incident. Later on when FIR was lodged on the instructions of the Superintendent of Police, and matter was investigated, it was clearly found that the incident of theft was untrue. This finding of the Police is also supported by the conclusion arrived at by the surveyor in his report dated 26.03.2001, which states as follows:- "Conclusion: From findings of inspection and enquiry, we are of the opinion that, the incident of theft on 29.9.99 in the insured premises was not true. It was fabricated by Insured Mr. Krishna Ram to make insurers pay the amount of dues of State Bank of India, ADB, Garhwa on him.

Since, no incident of theft occurred thus assessment is NIL and in our opinion claim should be repudiated.

This concludes our report issued without prejudice."

Thus, we find that the petitioner/complainant has no case as the alleged theft on 29.09.1999 has been found to be untrue by the Police as well as by the surveyor appointed by the Insurance Company. He is only taking shelter under the order dated 02.06.2003 of the CJM, but even CJM has finally dismissed his complaint. The order of the CJM does not clearly specify grounds on which the incident of theft has been confirmed. On the contrary, there is ample evidence in the form of police investigation Final Report and report of the surveyor that the incident of theft was not true and that it was stage-managed by the insured. Thus, even the confirmation of the incident cannot entitle the petitioner/complainant to get the insurance claim in the light of the Police investigation report and the final report filed by the police as well as on the basis of the surveyor report.

Based on the above discussion, we find that the order dated 13.12.2006 of the State Commission does not suffer from any illegality, material irregularity or jurisdictional error, which calls for any interference by this Commission. Accordingly, the Revision Petition No.188 of 2008 is dismissed, being barred by limitation as well as on merits.