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2013 DIGILAW 21 (UTT)

PUSHPA NAINWAL v. LIFE INSURANCE CORPORATION OF INDIA

2013-01-08

B.C.KANDPAL, KUSUM LATA SHARMA

body2013
ORDER (Per: Justice B.C. Kandpal, President): This is complainant’s appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 21.08.2006 passed by the District Forum, Nainital, whereby the District Forum has dismissed her consumer complaint No. 09 of 2006. 2. This appeal has been preferred by the appellant – complainant with a delay of 4 years 6 months and 27 days. In the affidavit filed by the appellant in support of the delay condonation application, she has stated that the Advocate engaged by her before the District Forum for contesting the consumer complaint, had told that her presence is not required and he can himself contest the consumer complaint on her behalf. It has also been stated that whenever the appellant enquired from the counsel about the proceedings of the consumer complaint, the counsel did not provide any information. It has further been averred that the appellant through Sh. M.S. Rawat, Advocate got the file of the consumer complaint inspected on 11.03.2011, whereupon the appellant came to know that her consumer complaint has been dismissed by the District Forum vide order dated 21.08.2006. On the same day, the appellant got the certified copy of the impugned order issued and contacted her lawyer for filing the appeal. The counsel prepared the appeal and filed the same before the State Commission on 19.04.2011. 3. The respondents filed objections against the delay condonation application and stated that the appellant has wrongly averred that she came to know about the impugned order on 11.03.2011 because she had already taken the certified copy of the impugned order, which is evident from the fact that the certified copy of the impugned order filed along with the appeal is the second copy; that the appeal is grossly time barred and the delay in filing the appeal is inordinate and has not been explained and that no sufficient cause has been shown by the appellant for condonation of such a long delay in filing the appeal and, therefore, the delay in filing the appeal is not liable to be condoned. 4. We have heard the learned counsel for the parties and have also perused the record. 5. 4. We have heard the learned counsel for the parties and have also perused the record. 5. The ground taken by the appellant for condonation of such a long delay is that the counsel did not give her intimation regarding the proceedings of the consumer complaint and also the dismissal thereof by the order impugned. It is important to mention here that the appellant has not even cared to disclose the name of the counsel who kept her in dark about the status of her consumer complaint or dismissal thereof, what to say of filing the affidavit of the said counsel. In the case of Vinod Kumar Patel Vs. Sambit Kumar Das; III (2012) CPJ 703 (NC), it has been held by the Hon’ble National Commission that it is well settled that qui facit per alium facit per se. Negligence of a litigant’s agent is negligence of the litigant himself and is not sufficient cause for condoning delay. The appellant – complainant should have showed promptitude in prosecuting the consumer complaint and should not have fully left the matter to her counsel. It was the duty of the appellant to look after the consumer complaint instituted by her and she can not take any advantage of any default on the part of her counsel. This shows total callousness and absence of serious concern on the part of the appellant. In the case of VRL Logistic Ltd. and another Vs. M.M. Gears Pvt. Ltd. and another; III (2012) CPJ 293 (NC), there was delay of 351 days in filing the revision petition. It was alleged that the delay was caused due to default of counsel for the petitioner. The said contention was not accepted by the Hon’ble National Commission and it was held that there was persistent attitude of neglect from the side of the petitioner to prosecute the matter. In the case of Swiss International Air Lines Ltd. Vs. Jitender Mohan Bhasin and others; III (2012) CPJ 583 (NC), there was delay of 244 days in filing the revision petition. It was held by the Hon’ble National Commission that the petitioner has failed to offer convincing rationale of reasons in support of his application. The name of earlier counsel was not mentioned in the application. Jitender Mohan Bhasin and others; III (2012) CPJ 583 (NC), there was delay of 244 days in filing the revision petition. It was held by the Hon’ble National Commission that the petitioner has failed to offer convincing rationale of reasons in support of his application. The name of earlier counsel was not mentioned in the application. It was further held that it is the duty cast on the petitioner itself to find out what has happened to his case and whether appeal has been filed or not. He can not put all blame upon his counsel. It was also held that there was gross negligence, deliberate inaction and lack of bonafides are imputable to the petitioner and the delay was not condoned. The Hon’ble Apex Court in SLP Civil No. 1427 of 2011 decided on 15.04.2010 in Estate Officer, U.T. Chandigarh and another Vs. Kanwaljit Singh Kochhar and another, has observed: “In our view, the explanation given by the petitioners for delayed filing of the applications for condonation of delay is wholly unsatisfactory and keeping in view the fact that for filing appeals against the orders of the State Commission (Section 19) and the National Commission (Section 23) passed under the Consumer Protection Act, 1986, the limitation is 30 days only, we do not find any justification to entertain their prayer for condonation of delay.” 6. The appellant also can not be said to have come with clean hands and disclosed the true facts. As stated above, it is evident that the certified copy of the impugned order filed along with the appeal is the second copy and the appellant has not said anything that the first copy of the impugned order was obtained by her counsel, but he did not deliver the same to her or that the first copy went missing or something else. Thus, the appellant can not be said to have acted bonafidely. 7. The period of limitation provided under Section 15 of the Consumer Protection Act, 1986 for filing the appeal before the State Commission against the order made by the District Forum is 30 days from the date of the order. The Hon’ble National Commission in its decision rendered in the case of Kanpur Development Authority Vs. 7. The period of limitation provided under Section 15 of the Consumer Protection Act, 1986 for filing the appeal before the State Commission against the order made by the District Forum is 30 days from the date of the order. The Hon’ble National Commission in its decision rendered in the case of Kanpur Development Authority Vs. Sheo Prakash Gupta and another; III (2012) CPJ 227 (NC), has declined to condone the delay of 69 days in filing the appeal and it was held that sufficient cause for not filing the appeal within the stipulated period has not been shown. The Hon’ble National Commission in the case of Ketan Consultants Pvt. Ltd. Vs. Suresh Dattaraya Namjoshi; III (2012) CPJ 60 (NC), has held that a person who seeks exercise of judicial discretion of Court or Tribunal in his favour in the matter of condonation of delay, must explain to the satisfaction of Court / Tribunal / Forum that he had “sufficient cause” which prevented him from filing the proceedings within prescribed period of limitation. He must explain each day’s delay and show that delay was not intentional or willful which will entitle him to seek judicial discretion in his favour. 8. Learned counsel for the appellant cited a decision of the Hon’ble Apex Court in the case of Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai; 2012 (2) UAD 30, in which it has been held that no hard and fast rule has been or can be laid down for deciding applications for condonation of delay, but a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay. It is true that application for condonation of delay should receive liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to party. But in the instant case, there has been total negligence and carelessness on the part of the appellant – complainant in prosecuting the matter and she slept for a long period of 4½ years and suddenly woke up and decided to file the present appeal and has not extended any “sufficient cause” for condonation of such a long and inordinate delay in filing the appeal. It is also to bear in mind that the certified copy of the impugned order was obtained by the appellant on 11.03.2011 and whereas the present appeal was filed on 19.04.2011 and no explanation for this period of over a month has also been put forward by the appellant. 9. Learned counsel for respondents cited a decision of the Hon’ble National Commission in the case of HUDA Vs. Supreme System; II (2011) CPJ 70 (NC), in which it was held that the delay of each day has to be explained. Learned counsel also cited another decision of the Hon’ble National Commission in the matter of St. Joseph’s Hospitals and others Vs. Jimmy P.K. and others; IV (2012) CPJ 468 (NC), in which it was held that there is nothing on record to show that petitioners ever made any attempt to contact their Advocate to know about fate of the revision. 10. For the reasons aforesaid, we are of the definite view that the appellant has not been able to explain /justify such a long delay of 4 years 6 months and 27 days in preferring the instant appeal and, as such, the application for condonation of delay is liable to be rejected and consequently, the appeal merits dismissal, being barred by time. 11. On merits also, the appellant – complainant has no case. We have gone through the record and also the impugned order passed by the District Forum and we do not find any infirmity in the impugned order, so as to interfere in the finding recorded by the District Forum and the District Forum has rightly dismissed the consumer complaint. 12. In view of above, appeal is dismissed being barred by time as well as on merits. No order as to costs.