NATIONAL INSURANCE CO LTD vs Sanjay Kumar Behera S/O Krushna Murthy Behera

THIS revision is directed against the order of the State Consumer Disputes Redressal Commission dated 27.08.2012 in First Appeal No.403/2012 whereby the State Commission dismissed the application of the petitioner insurance company for condonation of delay of 168 days in filing of appeal and consequently dismissed the appeal as barred by limitation. Relevant portion of the impugned order of the State Commission is reproduced thus: "Perused the office note, which points out inordinate delay of 5 months and 19 days in preferring the appeal, for which misc. case bearing no. 768 of 2012 has been filed with a prayer for condonation of the said inordinate delay. After hearing Mrs. Jesthi, learned counsel appearing for the appellant / misc. petitioner, it is found that the delay has been caused at the official level of the Insurance Company in taking decision for filing appeal or not. When by this inordinate delay of 5 months and 19 days in filing appeal a valuable right has already accrued in favour of the complainant / respondent, we are not inclined to take away the said right by allowing the misc. case and condoning such inordinate delay. We would like to further note that the appellant, who was opposite party no.3 to the complaint, was contesting the claim of the complainant / respondent before the District Forum, Phulbani. As such, we reject the misc. case and dismiss the appeal memo on the ground of limitation."

LEARNED Shri Kishore Rawat, 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 19 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.

COMPLAINANT respondent no.1 and respondent no.2 failed to put in appearance despite notice of revision petition. Therefore, we are constrained to proceed against them ex parte. Counsel for respondent no.3 has refrained from contesting the revision petition. 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 19 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