M/S. Abhisekh Road Ways vs NATIONAL INSURANCE CO. LTD.

THIS revision is directed against the order of the State Commission dated 17.02.2014 whereby the application of the petitioner complainant for condonation of delay in filing of the appeal was dismissed and consequently the appeal preferred by the petitioner was also dismissed as barred by limitation.

BRIEFLY stated facts relevant for the disposal of this revision petition are that in August 2012, the petitioner complainant filed consumer complaint alleging deficiency in service on the part of the respondent insurance company in respect of the insurance claim pertaining to the loss of motor spirit being carried in the tanker, in an accident which occurred on the night of 22.04.1997. The respondent opposite party resisted the claim. In the written statement, the respondent admitted the insurance cover extended to the complainant. However, loss of motor spirit in an accident was denied. Besides the aforesaid pleas on merit, certain legal objections were also taken.

THE District Forum on consideration of the pleadings of the parties and the evidence came to the conclusion that repudiation of claim of the petitioner by the opposite party amounted to deficiency in service. Accordingly, the complaint was allowed and the following order was passed: ''''The Opposite Parties are directed jointly and severally to pay Rs.2,66,562/ -(Rupees two lakh six thousand five hundred sixty two only) to the complainant for the loss of Motor Spirit due to accident of the insured vehicle with simple interest @ 9% (nine percent) per annum from the date of filing of this complaint case i.e. 28.08.2012 along with compensation of Rs.10,000/ - (Rupees ten thousand only) towards harassment and mental agony and litigation expenses within thirty days from the date of Order failing which the total awarded amount shall carry 18% (eighteen percent interest) per annum till the date of actual payment. The case is allowed and disposed off accordingly ''''.

THE petitioner being aggrieved about the quantum of compensation awarded, preferred an appeal seeking enhancement of compensation. The appeal, however, was filed after the expiry of period of limitation with the delay of 107 days. The petitioner, therefore, moved an application for condonation of delay in filing of appeal. Only explanation given for the delay was that the petitioner appellant at the relevant time was suffering from diabetes and he was under the treatment of a Kabiraj (Ayurvedic practitioner) during the period w.e.f. 26.09.2013 to 24.10.2013. It was claimed in the application that on 25.10.2013, the petitioner proceeded to Cuttack where he contacted his counsel and on instructions, memorandum of appeal was prepared and it was filed on 28.10.2013. Learned State Commission not being satisfied with the explanation, dismissed the application for condonation of delay as also the appeal on the ground of limitation. Relevant portion of the order is reproduced thus: ''''Learned counsel for the petitioner/appellant submits that the impugned order was passed on 12.06.2013 and the petitioner/appellant suffered from diabetic and related disease from 26.09.2013 to 24.10.2013 and was treated under a Kabiraj. On 25.10.2013 he proceeded to Cuttack from Bargarh and reached at Cuttack on 26.10.2013 and contacted his advocate. Thereafter, learned counsel for the petitioner/appellant prepared the appeal memo and filed it on 28.10.2013 as 27.10.2013 was a holiday. Learned counsel for the petitioner further submits that the delay was caused as the petitioner was suffering from illness and there was no intention to file the appeal in a belated stage. So the delay may be condoned.

By the time, the petitioner/appellant said to have suffered from diabetes, delay of 77 days had already been caused. The learned counsel for the petitioner/appellant filed a copy of the medical certificate issued by Kabiraj, who certified that the petitioner/appellant was suffering from Madhumeha and allied diseases. A doctor/Kabiraj is not expected to advise a patient to take rest for about one month. Unless a diabetic patient does not do any physical work his sugar level would increase. Of course in case of gangrene and other serious disease out of diabetes, such a patient is required to take rest, but it appears that the appellant was not suffering from such a case. So, the grounds taken by the petitioner/appellant to condone the delay are not accepted.

LEARNED counsel for the petitioner has contended that the impugned order of the State Commission is not sustainable for the reason that the State Commission has ignored that the petitioner was prevented from filing the appeal within the period of limitation because of his ailment. It is submitted that even the medical certificate produced by the petitioner was not accepted.

WE have considered the submissions made by the petitioner and perused the record. There is no merit in the contention for the reason that perusal of the medical certificate placed on record would show that it has been issued by one Ayurvedic petitioner Dr. Nityanand Mahapatre, Medical certificate certifies that one Ashish Kumar Aggarwal s/o Hanuman Prasad was under his treatment for Madhumeh from 26.09.2013 to 24.10.2013. Apart from this certificate, no document such as prescription slips have been furnished. No pathological report has been filed to show that the petitioner was actually suffering from diabetes during the relevant period. Even the concerned doctor has not been examined to establish that the ailment of the petitioner was such that he could not have taken steps to contact his lawyer and given instructions for filing the appeal. Under these circumstances, we do not find illegality / irregularity in the order of the State Commission declining to accept the explanation for delay. Counsel for the petitioner has failed to point out any jurisdictional error in the impugned order of the State Commission. Therefore, we find no reason to interfere with the impugned order in exercise of the revisional jurisdiction conferred under section 21 (b) of the Consumer Protection Act, 1986. Even on merits, the petitioner does not have any case. His complaint has been allowed by the District Forum and he has been awarded compensation. The petitioner is seeking interest on higher rate and from the earlier date. It may be noted that consumer complaint was filed in the year 2012 although the alleged loss took place in the year 1997. District Forum was justified in granting interest from the later date particularly when there is inordinate delay on the part of the petitioner to file the consumer complaint. Thus, we do not find any justification in the request for granting interest on the compensation awarded from the date of claim. The interest awarded by the District Forum appears to be reasonable.

IN view of the discussion above, the revision petition is dismissed.