SANJEEV GUPTA vs Oriental Insurance Co. Ltd.,

THIS first appeal No. 67 of 2009 has been filed under section 19 of the Consumer Protection Act, 1986 against the order dated 30.01.2009, passed in execution application 2008/37 and the order dated 27.03.2008 passed in Consumer Complaint No. C -297/2001, both with the title, Sanjeev Gupta vs. Oriental Insurance Company Ltd. & Ors. The brief facts of the case are that the appellant/complainant Sanjeev Gupta got his Tata bus No. DL -1PA/1485, model 1997, registered with the Respondent/Opposite Party, Insurance Company vide cover note No. 439273 dated 10.07.1999, policy No. 2000/2581, valid from 11.07.1999 to 10.07.2000 for a sum of Rs. 6.75 lakhs and premium amounting to Rs. 19,405/ - was paid to the Insurance Company.

THE said bus is stated to have been stolen in the night between 31.12.1999 and 01.01.2000, for which FIR No. 4/2000 under Section 379 IPC was recorded on 02.01.2000 with Police Station Ashok Vihar, Delhi. Respondent/Opposite Party was also informed on 01.01.2000. The complainant filed claim with the Insurance Company for recovery of the amount involved, but on failure of the respondent Company to settle the claim, he filed the consumer complaint in question, demanding a total sum of Rs. 10,30,100/ -, including Rs. 6.75 lakhs as sum insured, Rs. 1 lakh for compensation as mental agony, Rs. 2.43 lakhs as interest @ 24%, Rs. 11,000/ - as litigation charges and Rs. 1,100/ - as notice charges. The State Commission, after taking into account the evidence of the parties, allowed the complaint and directed the Opposite Parties to pay a sum of Rs. 6.75 lakhs less 15% towards indemnification of actual loss by way of total loss and to pay Rs. 50,000/ - as compensation for mental harassment and Rs. 10,000/ - as cost of litigation. The complainant then filed an execution application against the Opposite Party before the State Commission, praying for issuing warrant of attachment to the tune of award against the Opposite Party and interest @ 24% for withholding the awarded amount. Vide order dated 30.01.2009, the State Commission has recorded that the respondent/opposite party had deposited a cheque of the decretal amount with the Office of Registrar and the said cheque be released to the applicant and the execution petition be consigned to record room having been satisfied. The present appeal has been filed with the prayer that the order of the State Commission dated 27.03.2008, should be set aside to the extent, whereby the State Commission has directed deduction of 15% from the insured amount of Rs. 6.75 lakhs. It has also been requested that interest @ 18% p.a. should be allowed from the date of filing the complaint till realization of the amount. Alongwith the appeal, an application for condonation of delay has been filed, saying that the delay in filing the appeal should be condoned.

AT the time of hearing before us, the appellant argued his case in person. He was asked to explain the delay of 291 days in filing the present appeal. The appellant stated that the delay had occurred due to wrong legal advice rendered to him by an advocate. The said advocate advised him that execution application should be first filed in the case, because the Opposite Parties had not obeyed the order of the State Commission dated 27.03.2008 on flimsy grounds. There was no negligence or inaction on the part of the appellant and hence, the delay in filing the appeal should be condoned. On the other hand, learned counsel for the respondents stated that the filing of execution application before the State Commission had nothing to do with the delay in filing the appeal and hence, the appeal should be dismissed on the ground of delay alone. In support of his arguments, learned counsel for the respondents has drawn our attention to the orders passed by this Commission in HDFC Ergo General Insurance Co. Ltd. vs. Rachhpal Singh as reported in I : (2013) CPJ 644 (NC), Suresh Kumar vs. National Insurance Company Ltd. as reported in I ( : 2013) CPJ 60 (NC) and Major Jai Parkash vs. Haryana Urban Development Authority & Ors. as reported in I : (2013) CPJ 593 (NC).

WE have examined the material on record and given thoughtful consideration to the arguments advanced before us. It is made out from the facts on record that the appeal in question has been filed after a delay of 291 days and no proper explanation has been furnished for the same. The appellant has tried to put the blame on his advocate, saying the he was wrongly advised by the said advocate to file the execution application first, and then to file the appeal in question. We tend to agree with the arguments advanced by learned counsel for the respondents that the filing of execution application has nothing to do with the filing of the appeal against the order dated 27.03.2008 of the State Commission. The appellant has not been able to give any cogent and convincing reasons why they could not file the appeal in time. A view has been taken by the Hon''ble Apex Court in a number of judgments given recently, that the delay in filing Appeal/Revision Petition etc. should not be condoned, unless there are valid and cogent reasons for doing the same. In this regard, reference may be made to the order passed by the Hon''ble Apex Court in case R.B. Ramlingam Vs. R.B. Bhavaneshwari : 2009 (2) SCALE 108, where it has been 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.

HON ''ble Apex Court in, 2012 (2) CPC 3 (SC) - Anshul Aggarwal Vs. New Okhla Industrial Development Authority observed as under: 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 For as.

In view of the orders passed by the Hon''ble Apex Court, we do not find any justification to condone the delay in filing the appeal in the present case, as no solid reasons have been advanced by the appellant for condonation of delay. The appeal in question is, therefore, ordered to be dismissed on the ground of delay in filing the same. There shall be no order as to costs.