The absence of the appellant in proceedings justifies dismissal for lack of prosecution, as the evidence did not support a valid claim under the insurance policy.

1. This miscellaneous application seeks to restore the first appeal no. 97 of 2010, which was dismissed in default for lack of prosecution vide this Commission’s Order dated 27.01.2021.

2. We have heard the learned counsel for the appellant and have perused the relevant material including inter alia the Order dated 27.01.2021 and the application for restoration.

3. The Order dated 27.01.2021 of this Commission is self-contained and self-speaking.

For ready reference the said Order is reproduced below:

Dated: 27^th January 2021

ORDER

Taken up through video conferencing.

1. Called out.

No one is present for the appellant.

Mr. Amit Tyagi, advocate is present for the respondents no. 1 and no. 2, insurance co.

The respondent no. 3 surveyor is being proceeded against ex parte.

2. It is noted that the insurance co. vide its letter dated 09.01.2008 had closed the matter by treating it as ‘no claim’, inter alia stating that:

Ref. to Final Survey Report of Surveyor M/s Cunningham Lindsey International pvt Ltd dated 5^Th Sep: ,2007 (ref no 11/208/00231/FSR), as per the observation of independent surveyor the loss has occurred due to flood / inundation to the stock kept / stacked on ground & was affected up to 2 ft from the ground level.

The policy was issued with warranty that the stock should be kept 4 feet above the ground level.

This is a breach of policy standard warranty condition hence; the loss is beyond the scope of the insurance policy.

In view of the above, we are closing the above matter at our end by treating it as “No Claim”.

The State Commission vide its impugned Order dated 26.02.2010 had dismissed the complaint, inter alia observing that:

15. Thus, we find that the stock which was damaged on account of heavy rain fall and water logging and was kept at ground level was not insured and this fact has been admitted by the complainant himself and was also observed by the surveyor that the stock which kept at the ground level was only damaged. In view of this situation, we find that no amount is payable by the insurance company looking to the warranty clause included in the insurance policy.

3. That being as it is, in the absence of the appellant today, the appeal is dismissed in default for lack of prosecution.

4. The Registry is requested to send a copy each of this Order to the appellant and to its learned counsel within three days from today.

4. The complaint was filed before the State Commission in 2008. The State Commission passed its Order in 2010. Appeal before this Commission was filed in 2010. We are now in 2021. Section 19A of the Act 1986 stipulates that “an endeavour shall be made to finally dispose of the appeal within a period of ninety days from the date of its admission.”. The appeal was procrastinated for a period of more than one decade.

5. That being as it may be, we but find no good ground or mitigating factor to recall the Order of 27.01.2021 and to restore the appeal. The cause shown appears neither persuasive nor sufficient.

6. The application is dismissed.