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2010 DIGILAW 278 (JK)

Oriental Insurance Co. Ltd. v. Ab. Rashid Wani

2010-05-14

MOHAMMAD YAQOOB MIR

body2010
1. Three storeyed residential house of the respondent No.1 was insured with the petitioner insurance company vide insurance policy No.23423/48/95/00287 for the period 5.9,1994 to 4.9.1995. During the intervening night of 17th/18th April, 1995, damage was caused to the insured property by some unknown persons who had forcibly entered into the said house and ransacked the whole building. In connection thereof case had been registered as crime No.67/95 for commission of offences punishable under Section 457 RPC and 3/25 Arms Act on 19.4.1995. At the same time petitioner insurance company was informed and the claim was registered as claim No. 23420/48/96/00019 by the petitioner company. Mr. M.Q. Indrabi was deputed by the Company for conducting the survey. When the claim remained to be settled, the respondent No.1 lodged complaint before the Divisional Consumers Protection Forum, Srinagar. The said complaint has been decided on 26.11.2001 whereunder respondent No.1 was held entitled to the amount of Rs.1,14,300/- along with 9% interest per annum with effect from 18.10.1995 i.e. six months after the occurrence till the liquidation of the amount. 2. Appeal against the said order of the Divisional Forum was not filed within the prescribed period of limitation, therefore, alongside the appeal, an application for condonation of delay has also been filed before the J&K State Consumers Projection Commission, Srinagar (hereinafter for short referred to as the State Commission). The State Commission after hearing both the parties not satisfied with the cause projected for late filing of the appeal dismissed the application for condonation. Aggrieved thereof, writ jurisdiction of this Court has been invoked by filing the instant petition wherein both the orders of Divisional Forum dated 26.11.2001 as well State Commission order dated 7.8.2002 are sought to be quashed. 3. Admittedly Divisional Forum has passed the award on 26.11.2001. Appeal against the said order before the State Commission in terms of Section 13 of the Consumer Protection Act has to be preferred within a period of 30 days from the date of the order. The State Commission can entertain the appeal even after the expiry of said period of 30 days provided it is satisfied on a satisfied cause shown for not having filed the appeal within the prescribed period. 4. The State Commission can entertain the appeal even after the expiry of said period of 30 days provided it is satisfied on a satisfied cause shown for not having filed the appeal within the prescribed period. 4. Before the State Commission the only ground projected for explaining the delay is that the petitioner company had no knowledge about the passing of the order as their engaged advocate, Mr. Shabir Ahmad Kanth, had proceeded to perform Umrah. The State Commission noticed that the judgment has been announced by the Divisional Forum in presence of Counsel Mr. S.A. Kanth, as is apparent from the judgment itself. Secondly even if it is taken correct that Mr. S.A. Kanth had proceeded for Umrah, same is performed within a period of 15 days. 5. The counsel for the petitioner submits that the application for condonation of delay was presented before the State Commission on 1.4.2002 whereas in the order of State Commission presentation of the application for condonation is shown as 1.7.2002. 6. This submission on perusal of the State Commission record is found to be correct but what is its effect is to be answered. By showing presentation of the application for condonation of delay on 1.7.2002, the State Commission has observed that there is delay of 124 days in filing the appeal but when the date of presentation is taken as 1.4.2002, the delay is of only 94 days after excluding 30 days prescribed period of limitation i.e. in total after 124 days appeal has been preferred. 30 days was the period prescribed, therefore, delay is of 94 days. Still the delay of 94 days is not explained. Even if 15 days, during which period Mr. S.A. Kanth had proceeded for performing Umrah, is excluded, still there is delay of 79 days which has not been explained at all. Nor this situation is in any way explained in the memo of petition. Law of limitation has a purpose. After all unexplained indolence cannot be ignored. A party is supposed to be vigilant. When a party chooses not to be vigilant, law of limitation has to be applied with all its rigour even if it may be very harsh. 7. The submission of learned counsel for the petitioner that technicalities have to be ignored so as to do the substantial justice. A party is supposed to be vigilant. When a party chooses not to be vigilant, law of limitation has to be applied with all its rigour even if it may be very harsh. 7. The submission of learned counsel for the petitioner that technicalities have to be ignored so as to do the substantial justice. This submission has a value but depends on facts and features of each case as it is trite that when technical and substantial justice are pitted against each other, then it is the later which has to be preferred. In the instant case the insurance coverage on the relevant date of occurrence is not disputed. Indefinite attitude of the insurance company in not settling the claim in negative or positive for a prolonged period of about four years is also not disputed. The Consumer Protection Act in its objective is consumer friendly. The authorities while dealing with the matters under the Consumer Protection Act have also to advance the object of the Act by providing the deserving what they are entitled to. A paltry sum of Rs.1,14,300/- awarded along with interest is not in any way harsh so as to say that insurance company has been subjected to any kind of injustice. By now the awarded amount has been deposited and paid to the claimant. Rightly so, otherwise even compensatory costs could be ordered to be paid to the respondent (claimant). The order of the State Commission dismissing the application for condonation of delay is well reasoned, does not call for any interference. That being so, the order of Divisional Forum also becomes un-interferable. The determination of the matter shall remain confined to the facts and features of the case itself. 8. The petition being without merit is dismissed. 9. Record of the appellate forum along with copy of the order be sent to the appellate forum.