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2008 DIGILAW 31 (UTT)

GYAN DEVI v. BRANCH MANAGER, L. I. C. OF INDIA

2008-01-16

C.C.PANT, IRSHAD HUSSAIN

body2008
ORDER (Per : Justice Irshad Hussain, President) Challenge in this appeal is to the order dated 07.02.2006 passed by District Forum, Udham Singh Nagar in Consumer Complainant No. 138 of 2004, dismissing the consumer complaint on the ground that the insured late Sh. Prithvi Raj while making proposal for policy of life insurance, suppressed the factum of pre-existing throat cancer by giving answer in negative to the queries in the proposal form, including the one pertaining to his state of health and any disease, by which he was suffering from before making the proposal. 2. Proposal was made on 29.12.2001, whereas prior to this date, the insured had received treatment of throat cancer in Himalayan Institute Hospital Trust, Jolly Grant, Dehradun and was even advised Chemotherapy for probable cure of his serious disease. 3. Although the insured was shown to have expired due to cardiac arrest, the fact of his getting treatment for throat cancer came to light on investigation made to settle the claim preferred by insured's widow Smt. Gyan Devi, who had filed complaint before the District Forum for compensation to the tune of the insured sum. The complaint, as stated above, was dismissed and the present appeal was filed on 05.07.2006, after a delay of 118 days. 4. Complainant-appellant also preferred an application for condonation of delay on the ground that she being an illiterate lady, had not been appearing before the District Forum on each and every date and when on 15.05.2006, she enquired about the proceedings in her complaint from her counsel, she was told by her counsel that the complaint had been dismissed on 07.02.2006 by the impugned order. The appellant claimed to have been instructed her counsel to obtain the certified copy of the impugned order, which was given to her on 16.05.2006, whereupon she went to her another counsel on 17.05.2006 to prepare and file the appeal against the impugned order. It has further been claimed that the counsel thereafter procured copies of the relevant documents till 04.07.2006 and ultimately filed the appeal before this Commission with the application for condonation of delay. Learned counsel for the respondent - insurer vehemently contested the application for condonation of delay by submitting that the cause shown for delay is not sufficient and that there has been lack of bonafide on the part of the complainant - appellant to prefer an appeal in time. Learned counsel for the respondent - insurer vehemently contested the application for condonation of delay by submitting that the cause shown for delay is not sufficient and that there has been lack of bonafide on the part of the complainant - appellant to prefer an appeal in time. It has also been urged that the appellant has shown utmost latches on her part and that there being no cogent ground to indicate that she had been prevented from any sufficient cause in preferring the appeal in time, the delay cannot legally be condoned and the appeal being barred by time, is liable to be dismissed in limine. 5. We have heard the learned counsel for the parties and have carefully considered their submissions in the light of the facts of the case and legal aspect of the matter. There can be no doubt that the application for condonation of delay and the affidavit filed in support thereof by the complainant - appellant do not indicate any sufficient cause, which may have prevented her from enquiring from her counsel before 15.05.2006 about the fate of her complaint pending before the District Forum. It does not stand to reason as to how a particular date, i.e., 15.05.2006 came like a bolt from the blue, so as to indicate that on this particular date, the complainant suddenly woke up and called upon her counsel to let her know about the complaint case filed by her in the District Forum. This particular aspect of the matter is clearly indicative of the fact that there is nothing to show that she had been prevented from any sufficient cause earlier from making any query from her counsel about the fate of her complaint. In a situation like this, the only inferrence, which can legitimately be drawn, is that the counsel, who prepared the application for condonation of delay and affidavit of the complainant-appellant, decided to take any date showing it to be the one on which the complainant got conscious and decided to make query from her counsel about the proceedings in the complaint case filed before the District Forum. This is so because there is absolutely no inkling as to how and why till 15.05.2006, the appellant kept mum and took no care to know about the fate of her complaint. This is so because there is absolutely no inkling as to how and why till 15.05.2006, the appellant kept mum and took no care to know about the fate of her complaint. Therefore, as stated above, the peculiar circumstances of the case and the claim made in the application for condonation of delay, take us to the only conclusion that the complainant-appellant has failed to show any sufficient reason or cause, which may have prevented her from enquiring about the fate of her complaint before the District Forum and in turn also to file the present appeal against the impugned order within prescribed time. 6. Further, the averment of the affidavit of the complainant-appellant herself is indicative of the fact that there has been latches on her part and there has been no exhibition of any bonafides on her part in preferring the appeal beyond such a large period of 118 days. Such being the facts and circumstances of the case, we see no cogent reason to condone the delay even on the anvil of the principle laid down by the Hon'ble Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy; AIR 1998 Supreme Court 3222 and Lal Chand Vs. Oriental Insurance Co. Ltd.; 2006 (4) Civil Court Cases 132 (SC), pressed into service on behalf of the complainant - appellant. 7. To make short of the long discussion, we hold that the complainant - appellant has failed to show any sufficient cause for condonation of delay and, therefore, the application for condonation of delay, is liable to be dismissed. 8. Application for condonation of delay is dismissed and as a consequence thereof, the appeal being not maintainable, is also dismissed.