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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI

FIRST APPEAL NO. 69/2007.

DATE OF DECISION: 24/12/2009.

In the matter of:
Standard Chartered Bank,
H-2, Connaught Circus, New Delhi.

Appellant.

Versus

1. Shri D.R.Sood, S/o Shri N.R.Sood,
R/o Uma Niwas, Upper Kaithu, Shimla.,

2. Medicare Services (I) Pvt. Ltd. Kolkata having registered office at Flat No.2 Paul Mansions, 6, Bishop Lefroy Road, Kolkata, 700 020.

Respondents.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.
Hon’ble Mrs. Saroj Sharma, Member.
Hon’ble Mr. Chander Shekhar Sharma, Member.

Whether approved for reporting ? No.

For the Appellant: Mr. Ajit Jaswal, Advocate

Vice Mr. Neeraj Gupta, Advocate.
For the Respondent No.1: Present in person.

For the Respondent No.2: None.

O R D E R:

Justice Arun Kumar Goel (Retd.), President.
M.A. No. 172/2007:

1. Appellant is aggrieved from the order dated 20.9.2006 passed by District Forum, Shimla in Complaint No.50/2006. While allowing the complaint ex parte, appellant has been directed to pay sum of Rs.1,06,455/- with interest @ 9% per annum from the date of filing of the complaint, i.e. 17.1.2006 till actual payment was made alongwith Rs.10,000/- as cost of litigation.

2. This appeal is barred by limitation. As such M.A. No. 172/2007 has been filed for condonation of delay. It is admitted by the appellant that copy of the order dated 20.9.2006 was forwarded to it vide letter dated 10.1.2007. Assuming this position to be correct, as alleged by the appellant, as also keeping in view the fact that there were winter vacations, appeal should have been filed on the first opening day before this Commission. That was admittedly not done as is evident from the date of presentation of this appeal as it was presented on 8th March, 2007. Therefore, appeal is patently barred by time.

3. In the light of these facts now we have to deal with this application so far prayer for condonation of delay is concerned. In the aforesaid background it was urged on behalf of the appellant that in the face of the facts detailed in the application deserves to be condoned. For ready reference, contents of this application are extracted here-in-below:-

“APPLICATION UNDER SECTION 5 OF LIMITATION ACT:

RESPECTFULLY SHOWETH:

1. That the appellant has filed the accompanying appeal against the order dated 20th September, 2006 passed in complaint case No.50/2006. The contents of the said appeal and the grounds be read as part of the present application as the contents of the same are not reproduced herein for the sake of brevity.

2. That as disclosed, copy of the impugned order dated 20.9.2006 was forwarded vide letter dated 10.1.2007 of the Consumer Forum. It is the case of the appellant that they were never served and was, therefore, not having any record of the case.

3. That in view of the intimation received vide letter dated 10.1.2007, the appeal was to be filed on/or before 11.2.2007. It is submitted that the Consumer Forum as well as this Hon’ble Commission was closed on account of winter break and it resume functioning on 27.2.2007 and therefore, the appeal was to be filed immediately on the date of opening. However, the appeal could not be filed immediately on the date of opening as the Consumer Forum resume on 27.2.2007, there were some information which was to be collected from the Consumer Forum for which necessary steps were taken by the lawyer. It is further submitted that the appellant bank has no branch in Shimla and the lawyer also who was to conduct the appeal was out of station. Therefore, the appeal could not be filed immediately on the opening and there is a delay of 2-3 days which has taken place in filing the appeal.

4. That it is submitted that the delay which has taken place is bonafide and there exist sufficient reasons for condonation of delay which has taken place in filing the appeal.

5. That it is submitted that appellant has a good case on merits and therefore, the delay of 2-3 days which has taken place in filing the appeal may kindly be condoned and appellant seek indulgence of this Hon’ble Forum for this purpose.

PRAYER:

It is, therefore, most respectfully prayed that the delay in filing the appeal against the order dated 20.9.2006 passed by District Consumer Dispute Redressal Forum, Shimla in Complaint Case No.50/06 be condoned.Any other order this Hon’ble Forum may deem fit and proper in the facts and circumstances of the case may also be passed.”

4. When put to notice, respondent seriously contested this application and pointed out that no sufficient cause is made out from the allegations made in the application. Amongst other things, respondent has further mentioned in his reply that application was vague and misconceived. Affidavit of the counsel or his clerk in support of the contents raised in the application was not filed and estoppel was also set up as a ground due to its own wrongful acts, deeds, conduct and acquiescence. It was further pleaded by the respondent that the appellant did not appear despite service during proceedings before District Forum below. With his reply respondent has attached an envelope, that according to him contained notice sent to the appellant by the District Forum below envelop containing the notice is also filled by the respondent. .

5. With a view to get the matter sorted out, number of orders were passed which, for ready reference, are extracted here-in-below:- (i) “30.5.2007:
Present: Mr, Ajeet Jaswal vice Mr. Neeraj Gupta, Advocate for the Appellant.

Sh. D.R. Sood respondent in person. Main thrust of the submission of Mr. Jaswal in this case is that all the appellant has been condemned unheard to its prejudice without their being served. Further, according to him, no notice was ever received of the complaint filed by the respondent. Thus, according to learned counsel, the order is not only illegal, arbitrary, unjust and harsh, but is also opposed to the principles of natural justice and fair play. Therefore, the appeal needs to be allowed and case remanded back to the District Forum below. After setting aside the impugned order with a direction to afford opportunity to the appellants to file their version and then after taking evidence of the parties to dispose of the matter in accordance with law.

2. So far plea based on non-service of the appellant is concerned, it is belied from the two ADs of the notices which were duly served upon opposite parties No.2 & 3. Learned counsel has been confronted these ADs. Before taking into consideration his submission, we may mention that appellant bank has been sued at three addresses. First it has been sued through Manager, N.R. (Northern Region), Standard Chartered Bank, Connaught Circus, New Delhi. Then it has been sued through Area Manager, 23-25, Mahatma Gandhi Road, Fort Mumbai and thirdly, it has been sued through 19 H.R. Benefits and Funds Administration, 19 Netaji Subhash Road, Kolkata. So far service at Mumbai and Kolkata is concerned acknowledgements are there on record. So far service at Delhi office who is the only appellant in this appeal is concerned, registered notice was sent to it on 20.3.2006. Since, the registered Letter was neither received back, either served or un-served and none appeared for the other two parties, therefore, appellant alongwith the other two branches were set ex-parte on 1.5.2006 by the District Forum below. For ascertaining as to when the registered letter was sent to the appellant, we had requisitioned the record of postal receipt which was also shown to the learned counsel and could not controvert the same.
Faced with this situation, Shri Jaswal submitted that this case may be taken up on 1.6.2007 for further hearing. Prayer allowed. Be listed on 1.6.2007.”

(ii) “1.6.2007:
Present: Mr. Janesh Gupta, Advocate vice Counsel for the appellant.

Mr. Deepak Bhasin, Advocate for the respondent.
Heard further.

Before further examining this case, we feel that in the circumstances of this case, let appellant place on record material to show as to how the staff erstwhile ANZ Grindlays Bank which subsequently merged into Standard Chartered Bank is to be dealt with so far payment of their pension, medi-claims and other benefits alike are to be ensured by the appellant-Bank. We may also note that by referring to Annexure-N, Shri Gupta learned Counsel for the appellant submitted that after 31.1.2004, his client is not liable for payment of any amount of compensation, so far reimbursement of medi-claims is concerned. For the present we say nothing in this behalf save and except that in case retired staff of the erstwhile ANZ Grindlays Bank was being reimbursed for their medi-claims, then how and from where they provide, is not the concern of the respondent. Appellant having obtained medi-claim policy if any for the retired staff and its shifting the same from one insurer to another, it is the internal matter of the Bank and it would not in any manner effect the rights of the retired staff of the Bank like the respondent in the present case, in case there is provision for medical reimbursement of the staff of ANZ Grindlays Bank.

In the light of the above facts, prayer of Shri Gupta is allowed. Case be listed for further proceedings on 29.6.2007. Meanwhile we direct that the appellant should re-examine the matter as per rules if any so far claim made in the complaint out of which the present appeal has arisen, is concerned. In case respondent is found eligible for being reimbursed either for the whole amount and/or any part thereof, pendency of this appeal will not come in the way of the appellant-Bank to reimburse after examining the whole case. Reconsideration of the matter will be without prejudice to the rights and contentions of the parties in this appeal. Be listed on 29.6.2007. Dasti copy.”

(iii) “30.7.2007:

Present: Mr. Ajit Jaswal, Advocate vice counsel for the appellant.

Respondent is present in person.

According to learned counsel for the appellant, though they have received a windows live hotmail print message, but complete documents have not been received.

Further according to windows live hotmail print message the staff of ANZ Grindlays Bank is to be dealt with for payment of medical claims, and pensioners settle their dues through hospitals and apply to Medicare for reimbursement. Bank pays premium to Medicare with the list of eligible pensioners and in case of any direct settlement by the latter, bank is not involved. Policy started in case of respondent once he joined ANZ Grindlays Bank, when appellant had tie-up with National Insurance Company Ltd. And in 1999 it was shifted to Medicare Services. Respondent is entitled to Medi Claim upto 31.12.2004. Bank paid premium to Medicare who will directly pay maximum sum of Rs.75,000/- after receiving original papers from him, (i.e. Sh. Dr. Sood) and in this settlement bank was not involved. Respondent was covered under Medicare upto 31.12.2004 and his claim against this date i.e. 2.3.2004 to 16.3.2004 is to be reimbursed by the Medicare.

Whereas stand of the respondent is that so far he is concerned, the amount is to be reimbursed to him by the appellant bank as was being done in the past while he was in service. He further stated that, if any arrangement is made between the bank and the Insurance Company, he has nothing to do with it, save and except that the appellant is entitled to be reimbursed by the bank, how and from where is a matter with which he is not concerned.

In the light of above facts we deem it necessary to direct that some responsible officer of the appellant bank to be present on the next date of hearing well acquainted with the rules and regulations as to what is the position of reimbursement of Medi claim if any, of the respondent and also how the bank proposes to reimburse his claims after 1st January, 2005 onwards and why his Medi claim has not been settled. In the face of the admitted position respondent is entitled to be reimbursed qua his Medi Claims upto a particular amount.

Time for depositing the balance amount in terms of order dated 16.3.2007 is extended as prayed for, which prayer is not opposed. Longer date is given at the request of Mr. Jaswal. It is made clear that in case needful is not done then the stay against execution shall stand vacated automatically, so far amount over and above Rs.25,000/- deposited in this appeal is concerned. And in such a situation the respondent willl be free to execute the order qua the balance amount without any further direction from us. List this case on 11th October, 2007.”
“Copy Dasti”.

(iv) “4.4.2008:

Present: Mr. Neeraj Gupta, Advocate,
Mr. Ajay Monga, Advocate,
Mr. Ajit Jaswal, Advocate,

For Standard Chartered Bank Limited alongwith Ms. Anju Sharma, Officer of the Bank.
Mr. Deepak Bhasin, Advocate for the respondent with
Mr. D.R.Sood, respondent in person.

Though number of pleas were urged in support of this appeal on behalf of the appellant bank. However, its learned counsel on instructions received from the Officer of the bank stated at the Bar that the medical insurance benefits arrangement is made by the appellant with Medicare Services (I) Pvt. Ltd., at its Kolkata office. Further, according to learned counsel to these benefits employees like respondent and their family members are entitled to upto the age of 70 years, and not beyond that. This position was contested by Mr. Bhasin on instructions received from his client. We say nothing in this behalf for the present.

So far the claim made which is subject matter of this appeal is concerned, admittedly it pertains to period prior to 31.12.2004, upto which date respondent is entitled to medical insurance benefit. Earlier it was with NIC Ltd., but after it was changed and now it is with Medicare Services (I) Pvt. Ltd., which is clubbed with General Insurance Co. Ltd.It was further stated that all admissible claims on receipt of original bills will be examined by the said Medicare Services (I) Pvt. Ltd. and within reasonable time, admissible amount will be reimbursed by the said Insurance Company to the respondent.

We feel that for doing complete justice between the parties, Medicare Services (I) Pvt. Ltd., Kolkata having registered office at Flat No.2 Paul Mansions, 6, Bishop Lefroy Road, Kolkata 700020 needs to be added as party in this case, ordered accordingly. Notice be issued to this newly added respondent in this appeal returnable for 25.6.2008.

Meanwhile we feel that in the face of the above noted facts this matter needs to be sorted out without delay, if possible amicably. As such without prejudice to the rights and contentions of the parties in this appeal, as an interim measure we order as under:-

a) that all the original bills and other relevant documents upto 31.12.2004 will be furnished by the learned counsel for the respondent alongwith a list thereof to Mr. Neeraj Gupta during the course of day to day against receipt.

b) After receipt of the originals, those will be forwarded by the appellant to the newly respondent, who shall process the same and release the admissible amount to the respondent, if any by or before 25.6.2008 under intimation to the appellant, as well as to the respondent.

c) Some responsible officer of the newly added respondent will appear in person in case, only if it has any reservation or otherwise in settling the claim. This direction is necessary keeping in view the fact that at least upto 31.12.2004, the respondent is entitled to the medical insurance benefit as admitted by the appellant from the said newly added respondent because premium stands already paid by it (the appellant), to cover such risk.

M.A.No.217 of 2008:

Amount tendered with this application is ordered to be invested with PNB, Kasumpti, Shimla. This application stands disposed of.Since entire amount according to the appellant has been deposited in this appeal, execution and operation of the order passed by District Forum, Shimla in complaint No. 50/2006 decided on 20.9.2006 will remain stayed till the disposal of this appeal.

“Dasti copy to the parties.”
(v) “25.6.2008:

Present: Mr. Ajay Monga, Advocate with Mr. Ajit Jaswal, Advocate for
Standard Chartered Bank Ltd.

Mr. Deepak Bhasin, Advocate for the respondent with his client.

Mr. Sanjay Khanna, Advocate for the newly added respondent i.e. Medicare Services (I) Pvt. Ltd.

When this matter came up for consideration it was stated by Mr. Khanna, that after receipt of papers from the appellant in terms of the order dated 4.4.2008 passed by us alongwith copy of the said order. He further stated that his client had taken up the matter with the Insurance Company i.e./ National Insurance Company Ltd., however till date final decision had not been taken, though as per the order dated 4.4.2008 needful should have been done by now. He prayed for extension of time for complying with the directions issued on 4.4.2008 so far release of admissible amount by the newly added respondent in favour of respondent No.1 Mr. Desh Raj Sood is concerned. There appears to be no justification in allowing this prayer particularly when all the documents were received by respondent No.2 as far back as on 7th May, 2008 from the appellant. Without saying anything further in this behalf, we hereby direct the newly added respondent i.e. Medicare Services (I) Pvt. Ltd., Calcutta shall scrutinize the papers forwarded to it by the appellant and then shall release the admissible amount due and payable on or upto 31.12.2004.

In this behalf we may clarify that Mr. Monga though contested the maintainability of the complaint by Mr. Desh Raj Sood qua his client, but at the same time he fairly stated, that upto 31.12.2004 premium has been paid and respondent No.1 alongwith his family members is entitled for medical reimbursement till he, (the respondent No.1) attains the age of 70 years. This question has been left open as is evident from our earlier order and will be adjudicated upon by us. So far respondent No.2 i.e. Medicare Services (I) Pvt. Ltd., is concerned, it is duty bound in law to consider and to have thereafter released the admissible claim to respondent. Let needful be done and case is ordered to be listed on 1.8.2008.

In case the amount is not released, CMD of Medicare Services (I) Pvt. Ltd., Calcutta will remain present in person, and in case he fails to appear, coercive process may have to be issued against him for procuring his presence. This direction has been necessitated in the face of the order dated 4.4.2008 and having not complied with by the newly added respondent.

“Dasti Copy.”
(vi) “28.8.2008:

Present: Mr. Janesh Gupta, Advocate for the appellant.
Mr. Deepak Bhasin, Advocate for respondent No.1 alongwith his client.

When this case was taken up today, Mr. Gupta prayed for adjournment, as according to him cheque in the sum of Rs.6,458/- dated 24.5.2008 has been sent to him, for what and in which case and against which medi-claim bill of the respondent, has not been informed to him.

While allowing prayer for adjournment of Mr. Gupta now following directions are issued to the appellant;

a) to produce the copy of the Rules and Regulations as ordered on 1.6.2008. In addition to this what were the terms of take over/merger of ANZ Grindlays Bank Limited, with the appellant will also be produced particularly those relating to the retired employees like respondent in this appeal of ANZ Grindlays Bank Ltd;

b) how the matter was dealt with by the appellant to ensure that admissible and due amount upto the period i.e. 31.12.2004 to which the respondent is entitled to be reimbursed by the appellant, after examination of the bills pertaining to this period those were delivered to the appellant by the respondent through its learned counsel;

c) We may clarify that M/s Medicare Services (I) Pvt. Ltd., Kolkata was added as a party with the sole purpose of getting the matter settled. Instead of this being settled we are of the view that it is getting complicated, because the newly added respondent has now applied for adding National Insurance Co. Ltd. as a party. We feel that there is no need of its being added as a party. As such we reject M.A. No.589/2008 filed by the newly added respondent No.2 i.e. Medicare Services (I) Pvt. Ltd. Kolkata.

Learned counsel for the parties are directed to collect copy of this order free of cost from the Reader of the court during the course of this week. Be listed on 1.10.2008.”

6. We must confess that all our efforts failed in getting the dispute resolved, rather the decision got delayed on this count.

7. In the aforesaid circumstances it was prayed on behalf of the respondent that appeal being barred by time and no sufficient cause having been shown, the application may be dismissed and appeal be ordered to be consigned to records. We are alive to the situation that while considering a case for condonation of delay, approach of the Court does not have to be too pedantic or technical. To the contrary, it has always to be justice oriented, aimed at not only minimizing the litigation but also setting the controversy between the parties at rest for all times to come. Another reason to favourably consider an application for condonation of delay, is that no litigant stands to gain by filing a time barred lis. To the contrary, he runs the risk of getting his case dismissed. We are also aware that Courts are respected for doing justice between the parties. Therefore, on facts being there, approach of the Court has to be liberal in favour of an applicant, who applies for condonation of delay.

8. However, at the same time we are also sanguine of the fact that with a view to enable the Court to favourably consider its prayer for condonation of delay, a litigant like appellant in this appeal, is supposed to provide adequate and sufficient material on record, thus enabling the Court to condone the delay. Therefore, the party applying for condonation of delay has always to place sufficient material on record explaining that delay is bonafide. That being the position, we shall now examine whether a case is made out for condonation of delay or not.

9. It was urged on behalf of the appellant that on an overall examination, sufficient cause was made out, therefore, delay needs to be condoned. We have already extracted the contents of the application in preceding paras of this order. We are prima facie satisfied that no case is made out for condonation of delay from the application. To the contrary, if anything is made out from the contents of the application (supra), then it is only unnecessary delay, as also it cannot be said that delay in filing the appeal is bonafide.

10. Even after the appeal etc. with affidavit was prepared and attested on 19.2.2007, it was preferred on 8.3.2007. What the learned Counsel had to say in this context on behalf of the appellant, Shri Jaswal submitted that this is a hard case and according to him this application be allowed, otherwise his client will be condemned unheard. As already discussed, from the contents of the application for condonation of delay its beauty is its brevity and nothing more.

11. In addition to this, sufficient cause is neither shown nor is even made out from the facts detailed in the application. In the absence of material on record, we are unable to interfere with the impugned order. It is also by now well known that sufficient cause is a question of fact to be established by a litigant, like the appellant in this appeal. 12. Faced with the situation Shri Jaswal finally urged that in case the delay is condoned his client would only be heard on merits and nothing more. Therefore, he prayed for allowing this application. This submission on the face of it appears to be very innocuous, but when examined in depth on the facts (supra), its hollowness is exposed. Reason being that a right accrues to the respondent on account of appeal being time barred, therefore, until the appellant satisfies that there is sufficient cause for condonation of delay, prayer made by Shri Jaswal needs to be rejected. Ordered accordingly.

13. For the view we have taken in this case while rejecting the application for condonation of delay, we place reliance on the Four Member Bench of the National Commission in the case of Cativision Products Ltd. vs. Nagpur Entertainment and News Network and Another, 2005 (1) CPC 357 and of Hon’ble Supreme Court in the case of P.K. Ramachandran vs. State of Kerala and Another, AIR 1998 SC 2276.

In the light of the above discussion, no cause much less sufficient cause is made out from the facts detailed in the application as extracted here-in-above, therefore, this application is dismissed.

APPEAL NO. 69/2007.

Since delay in filing the appeal has not been condoned, as such this appeal is ordered to be consigned to record as time barred.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary. A copy of this order also be sent by post to the respondent No.2, free of cost as per rules.

Shimla:

Dated: 24/12/2009.

( Justice Arun Kumar Goel ) (Retd.)
President

( Saroj Sharma )
Member

( Chander Shekhar Sharma )