ORIENTAL INSURANCE CO LTD vs Binaya Kumar Agarwal

THIS revision petition has been filed by the petitioner against the order dated 8.1.2014 passed by the learned State Consumer Disputes Redressal Commission, Odisha, Cuttack (in short, ''the State Commission'') in Appeal No. 258 of 2013 Divisional Manager, The Oriental Insurance Co. Ltd. Vs. Sri Binaya Kumar Agarwal by which, appeal was dismissed as barred by limitation.

BRIEF facts of the case are that Complainant/Respondent''s Tanker OR -14C -7072 was insured by OP/petitioner for a period of one year from 15.1.2010 to 14.1.2011 and tanker was licenced by Dy. Chief Controller Explosive to transport Petroleum Products. On 26.6.2010, vehicle while transporting Petroleum Products, met with an accident. Complainant submitted claim to the OP which was repudiated on the ground that the driving licence of the driver did not bear endorsement for driving vehicle carrying goods of dangerous and hazardous nature. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that claim was rightly repudiated and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to pay Rs.4,24,190/ - along with Rs.10,000/ - as compensation for mental agony. Appeal filed by OP was dismissed by learned State Commission vide impugned order as appeal being barred by limitation against which, this revision petition has been filed along with application for condonation of delay.

HEARD learned Counsel for the parties finally at admission stage and perused record. Learned Counsel for the petitioner submitted that delay of 79 days in filing appeal occurred in obtaining permission from different offices and opinion of Advocate, hence, delay may be condoned. On the other hand, learned Counsel for the respondent submitted that as there is no reasonable explanation for condonation of delay, application for condonation of delay be dismissed.

PETITIONER submitted in the application that order dated 8.1.2014 was sent by the Counsel for the petitioner to petitioner''s office on 29.1.2014. Petitioner''s office prepared note on 5.2.2014 and sent to competent authority on 11.3.2014. Competent authority recommended to Regional Manager for filing revision petition. On 13.4.2014, Chief Regional Manager approved and recommended for filing revision petition. It was further submitted that case was received at Head Office, Delhi on 22.4.2014 and matter was sent to panel Counsel for opinion and Counsel opined for filing revision petition on 23.5.2014. Head Office assigned the matter to Counsel for the petitioner on 10.6.2014 and revision petition was filed on 4.7.2014 and delay of 66 days in filing revision petition be condoned.

AS per office report there was delay of 79 days in filing revision petition, but if delay is to be reckoned from 29.1.2014 when copy of the order was received by petitioner, there is delay of 66 days in filing revision petition. No doubt, day -to -day delay has not been explained and at every stage there is delay of 22 to 30 days, but looking to the legal question involved in the revision petition, I deem it appropriate to condone delay of 66 days in filing revision petition subject to payment of cost of Rs.5,000/ - to respondent in the light of latest judgments of Hon''ble Apex Court as under -

THIS Commission in R.P. No. 2021 -2022 of 2013 Jeevanti Devi Vs. Tata Motors Ltd. and Anr. dismissed revision petition as it was barred by 135 days, but Hon''ble Apex Court while allowing Civil Appeal Nos. 10120 10121 of 2014 Jeevanti Devi Vs. Commercial Motors and Anr. observed as under: "Leave granted. The present appeals are directed against the order dated 14th August, 2013, whereby the National Consumer Disputes Redressal Commission, New Delhi, has declined to condone the delay of 135 days. Having heard learned counsel for the parties, we are of the considered view that the delay in filing the revision should have been condoned and the controversy should have been addressed on merits. In view of the aforesaid, the appeals are allowed, the impugned order is set aside and the matter is remitted to the National Consumer Disputes Redressal Commission, for disposal in accordance with law".

HON ''ble Apex Court in Civil Appeal No. 10289 of 2014 A.T.S. Govindarajane Vs. Chief Manager, State Bank of India while allowing appeal, order dismissing revision petition as barred by 149 days was set aside and matter was remanded to this Commission for deciding revision petition on merits. Hon''ble Apex Court in C.A. No. 5071 of 2014 Taipen Traders Ltd. and Anr. Vs. M/s. Bhawanti Cold Storage and Ors. while allowing appeal, order of this Commission refusing to condone delay of 218 days in filing revision petition was set aside and observed as under: "We have perused the order of National Consumer Disputes Redressal Commission and considered the arguments advanced. On such consideration, we are of the view that the grounds assigned for the refusal to condone the delay does not merit approval. On the contrary, we are of the view that the delay is neither inordinate nor has remained unexplained".

LEARNED Counsel for the petitioner submitted that learned State Commission without dealing grounds mentioned in the application for condonation of delay dismissed application without speaking order; hence, revision petition be allowed, delay be condoned and matter may be remanded back to learned State Commission to decide appeal on merits. On the other hand, learned Counsel for the respondent submitted that order passed by leaned State commission is in accordance with law; hence, revision petition be dismissed.

IT is not disputed that petitioner filed appeal along with application for condonation of delay of 102 days. Learned State Commission while dismissing application observed as under: "Since there is inordinate delay in preferring the appeal and delay due to observance of official procedure is not a sufficient cause for condoning the delay, we are not inclined to condone the said delay. As such, the Misc. case is dismissed and consequently, First Appeal No. 258 of 2013 also stands dismissed".

PERUSAL of application filed before State Commission for condonation of delay reveals that petitioner received copy of order of District Forum on 4.2.2013 which was sent to Regional Office on 14.3.2013. After processing opinion from Counsel was sought on 14.4.2013 and after processing file and obtaining approval file was sent to Counsel for filing appeal vide letter dated 19.5,2013. It was further submitted that due to summer vacation, Counsel was out of station and after reaching Cuttack on 13.6.2013; drafted memo of appeal and appeal was filed on 24.7.2013. No doubt, there was delay of 30 to 40 days at every stage, but as legal question regarding validity of driving licence for driving vehicle without endorsement for driving, carrier goods of dangerous and hazardous nature, learned State Commission ought to have condoned delay subject to cost in the light of aforesaid judgments. Learned State Commission has not discussed any facts pleaded in the application and has dismissed application by a non -speaking order observing that official procedure is not sufficient cause for condoning the delay. In such circumstances, I deem it appropriate to condone delay in filing appeal before State Commission and set aside impugned order.

CONSEQUENTLY , revision petition filed by the petitioner is allowed and impugned order dated 8.1.2014 passed by learned State Commission in Appeal No. 258 of 2013 Divisional Manager, The Oriental Insurance Co. Ltd. Vs. Sri Binaya Kumar Agarwal is set aside and application for condonation of delay filed by the petitioner before State Commission is allowed and delay of 102 days in filing appeal is condoned subject to payment of Rs.10,000/ - as cost to respondent on or before the next date for appearance before State Commission and matter is remanded back to learned State Commission to decide the appeal on merits after giving an opportunity of being heard to both the parties.

PARTIES are directed to appear before State Commission on 28.05.2015.