State Consumer Disputes Redressal Commission
M/S Yash Agencies vs The New India Assurance Co.Ltd Through ... on 8 August, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2016/04
Instituted on : 06.02.2016
M/s Yash Agencies,
House No.535/1, Behind B.P. Pujari School,
Raja Talab, Raipur (C.G.)
Through : Its Proprietor Amit Bulani, Aged about 33 years,
S/o Late Shri Manoharlal Bulani. ... Complainant.
Vs.
1. The New India Assurance Company Limited,
Through their Division Manager,
Divisional Office No.2, LIC Building, Pandri,
Tehsil and District Raipur (C.G.)
2. Union Bank of India,
Through : Branch Manager, Pandri Branch,
Bhatia Complex, Main Road, Pandri,
Tehsil and District Raipur (C.G.) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER.
COUNSEL FOR THE PARTIES:
Shri Sudipto Gupta, for the complainant.
Shri Shishir Bhandarkar, for the O.P.No.1.
Shri D.K. Agrawal, for the O.P.No.2.
ORDER
Dated : 08/08/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs, seeking following reliefs :-
// 2 //
(a) The O.P.No.1 be directed to pay the sum of Rs.55,00,000/- (Rupees Fifty Five Lakhs) being the loss to the stocks.
(b) An interest quantified at Rs.25,00,000/- (Rupees Twenty Five Lakhs), paid on the outstanding Cash Credit Account for 3 years.
(c) Interest @ 12% p.a. be also allowed on the above mentioned amounts.
(d) An amount of Rs.40,000/- (Rupees Forty Thousand) be allowed towards mental pain and agony.
(e) Any other relief that the Hon'ble Commission deems fit in the facts and circumstances of the case be granted.
2. Briefly stated the facts of the complaint of the complainant are that the complainant is in the business of Wholesale Trading of FMCG goods. The complainant has insured its stock vide SFSP Policy No.451800/11/11/01/00000345, valid for the period from 15.09.2011 to 14.09.2012, for sum assured of Rs.60,00,000/- with the O.P.No.1 Insurance Company through O.P.No.2. The complainant has paid premium of Rs.17,190/- to the O.P.No.1 through its banker, O.P. No.2 for covering risks of loss by fire to its stocks. The O.P.No.2 provides cash credit facilities to the complainant for facilitating its business operations and in consideration thereof charges interest on the availed // 3 // cash credit limited, hence the complainant stands in the capacity of consumer vis-à-vis the OPs. That on the midnight of 10-02-2012 fire broke out in the premises of the complainant's firm thereby damaging the entire stocks worth Rs.55,00,000/-, which were stored in the godown. The police control room was immediately informed and the fire fighters were pressed into service. It took three hours for the fire fighters to control the fire. Thereafter intimation in writing , of the fact of the accident, was given to the Police Station, Civil Lines, Raipur the very next morning. A written notice was tendered by the complainant to the O.P.No.2 on 11.02.2012 along with all relevant documents under a copy to the O.P. No.1 with all necessary annexures. The above documents were duly received by the concerned offices on the same day. On the basis of the above communications and documents, a claim was registered by O.P. No.1 vide claim No.45800/11/12/01/90000001 on 11.02.2012. That immediately thereafter Surveyor was appointed by O.P.No.1 ad all documents sought and required by the Surveyor were furnished to the Surveyor and a copy thereof was again provided to the O.P.No.1 insurer. The complainant heeded to all the correspondences and instructions that were made by the OPs from time to time, only to ensure early settlement of the fire claim. Even after submission of all documents as required, the O.P.No.1 in some pretext or the other was bend upon protracting the issue without any valid reason and making hollow // 4 // assurances devoid of any material. The complainant was subjected to insurmountable agony because of the callous attitude of the insurer i.e. O.P.No.1, in handling the claim and a considerable period of time was lost. The complainant is over-burdened with the payment of interest to the O.P.No.2 on the outstanding cash credit balance as its business has come to a standstill and consequently the inflows have dipped sharply. As the loss was phenomenal the complainant kept its relentless pursuit, to somehow expedite disposal of the above fire claim, but to no avail. That after two and half years from the date of the accident, the insurer O.P. No.1 issued a letter on 21.07.2014 asking for further documents that were never sought before. The complainant left with no other option duly complied with all the requirements. That even after the above compliance nothing was heard from the O.P. No.1. The complainant was constrained to issue a letter dated 17/04/2015 asking for the copies of the documents he has submitted and the information regarding the status of the claim, along with an application under RTI Act seeking the survey report, the relevant policy and the policy conditions within seven days. But even after the above the insurer was unmoved. The above fire claim has been kept pending for three and half years. This misdeed coupled with unhealthy state of affairs and apathy on the part of the insurer certainly amounts to deficiency in service committed by the opposite // 5 // parties, as a result of which the complainant has been deprived of its legitimate claim. Hence the complainant filed the instant complaint.
3. The O.P. No.1 (Insurance Company) has filed its written statement and averred that the complainant firm is engaged in large scale business, therefore, it does not come in the category of consumer as defined in Consumer Protection Act, 1986. The complaint is barred by time because according to the complainant the incident of fire occurred on 10.02.2012, whereas the complainant filed the instant complainant on 22.01.2016 which is not under the prescribed period of filing complaint. The complainant did not come before this Commission with clean hands because he himself failed to comply the terms and conditions of the insurance contract and did not provide the documents to the Insurance Company, which were necessary for settlement of claim. The O.P.No.1 did not commit any deficiency in service. The complaint of the complainant is not maintainable before this Commission for want of jurisdiction. The O.P.No.1 further averred that the complainant obtained Standard Fire and Special Peril Policy No.451800/11/11/0100000345 for the period from 15.09.2011 to 14.09.2012 to cover his stock under which the sum assured is Rs.60,00,000/- but the insurance policy was issued under certain terms and conditions. The complainant did not store the stock valuing Rs.55,00,000/- in his premises / godown at the time of incident of fire. In the intervening night of 10.02.2012 incident of fire was not occurred // 6 // in the premises / godown of the complainant and the entire stock did not damaged due to fire. The complainant did not give intimation regarding the incident of fire to the O.P.No.1 on 11.02.2012 and did not provide the all relevant documents The complainant did not suffer mental agony and financial problem due to non-settlement of his claim by the O.P. No.1. When the O.P.No.1 received intimation regarding the incident of fire, the Zonal Office of the O.P.No.1 has immediately appointed Shri S.K. Kansal, Surveyor for assessment of loss, who immediately contacted the complainant and get information from him regarding the manner of storage of the goods and advised the complainant to prepare the list of stock on basis of room wise, but the complainant did not prepare the above list till 12.02.2012 which is the date on which the Surveyor came to the premises of the complainant for inspection. The above Surveyor conducted preliminary inspection and found that the condition of the stock kept in the first floor of the premises was good, therefore, the Surveyor again requested the complainant to prepare separate list of the stock kept in each room and to make arrangement arrange for lighting and labourer so that the good articles can be separated in reply to which the complainant assured the Surveyor to prepare the list and to provide the same to him and also make arrangement for lighting but even then the complainant did not prepare room wise list and did not provide the same to the Surveyor and also did not make arrangement for // 7 // separation of the goods, due to which the Surveyor waited for the same till 15.02.2015 and the survey work could not be started. The Surveyor written letters dated 15.02.2012 and 16.02.2012 to the complainant and again requested to immediately provide actual list of the stock kept in his premises on room wise basis in prescribed format to him and to prepare status quo so that survey work can be started. In spite of above letter of the Surveyor, the complainant did not provide list and did not make arrangement for separation of the goods, hence, the Surveyor again sent letters and reminders in this regard to the complainant on 19.02.2012, 22.02.2012, 27.03.2012, 29.04.2012, 21.05.2012, 01.06.2012 and 05.08.2012 but inspite of lapse of 8 months, the complainant did not co-operate the Surveyor due to which looking to the non-cooperative attitude of the complainant, the Insurance Company had written letter dated 31.07.2012 to the complainant and instructed him to provide all relevant documents to the Surveyor within 15 days. In the above letter, it is also mentioned that if within 15 days, the complainant fails to provide the relevant documents, then it will be presumed that the complainant is not interested in respect of his claim and claim file will be closed. Even after receipt of above letter, when the complainant did not provide all relevant documents to the Surveyor within 15 days, then the O.P.No.1 was compelled to close the claim file of the complainant on 28.08.2012. Due to non-supply of the relevant documents by the complainant, the // 8 // claim of the complainant could not be settled and complainant himself is liable for it. In spite of non-cooperative attitude of the complainant and not providing relevant documents, Surveyor Shri S.K. Kansal, on the basis of residue of the salvage found during spot inspection and assessed the loss to the tune of Rs.10,00,000/- on net of salvage loss basis and submitted his survey report on 31.12.2012 in which the Surveyor has clearly mentioned that the complainant is agreed to settle his claim for Rs.9,34,838/- in full and final satisfaction. The Surveyor has also mentioned that the above agreed amount will be payable only when documents are submitted and full compliance of terms and conditions of the insurance policy. After receipt of the Surveyor's Report, the Insurance Company again initiated to settle the closed claim of the complainant bonafidely, but after perusal of the report, the Insurance Company found that at the time of assessment of the loss, the Surveyor did not consider the documents and fact :-
1. Audit financial statement for year 2008-09, 2009-10, 2010-11 and 2011-12.
2. Bank statement prior to three months from the date of loss.
3. Copy of accounts of the suppliers.
4. Sales Tax Return of last two years.
Besides it the Surveyor did not express his opinion to the fact that the godown of the complainant was registered for only mobile recharge // 9 // voucher in stead of Parle Product and the address of the premises mentioned is also different from the address mentioned in the policy which created doubt in respect of business of the complainant and stock. The Insurance Company also found that the insured had not provided documents which make the claim of the complainant dubious and the report of the Surveyor ambiguous . Therefore, the O.P.No.1 written letters dated 11.03.2013 to the complainant, concerned bank and Surveyor and sought clarification and also to Agrawal and Pansari, Chartered Accountants in respect of the claim which was earlier closed for want of submission of the documents, so that the same can be reconsidered and can be settled. The complainant did not provide the relevant documents to the Surveyor and the O.P.No.1 inspite of making demand several time for settlement of the claim, did not provide the same due to which the claim of the complainant was unnecessarily due to mistake on the part of the complainant. Now if the complainant provides relevant documents in respect of his claim to the O.P. No.1 then the O.P.No.1 can reconsider to settle his claim bonafidely under the terms and conditions of the insurance policy. No continue cause of action has accrued to the complainant to file instant complainant. The O.P.No.1 has not committed any deficiency in service, but the complainant himself is at fault for not submitting the relevant documents, therefore, for want of cause of action, the complaint of the complainant is liable to be // 10 // dismissed. The complainant has filed the instant complaint after lapse of prescribed time, therefore, the complaint is barred by time. This Commission has no pecuniary jurisdiction to hear the complaint. The complainant gave his consent to settle his claim for Rs.9,34,838/- in full and final satisfaction of his claim and he mentioned in this regard in the complaint, therefore, the complainant cannot make any demand any excess amount than this so much amount, hence, this Commission cannot hear the complaint of the complainant for want of pecuniary jurisdiction.The complainant is not entitled to get any relief from the O.P.No.1 because the O.P.No.1 did not commit any deficiency in service. The complainant himself did not provide relevant documents to the Surveyor and Insurance Company for settlement of his claim, which is violation of contract of insurance and the proof of negligence of the complainant. Besides it, the complainant filed the instant complaint and demanded compensation exaggeratedly without any documentary evidence, which is not maintainable for want of jurisdiction. The complaint is barred by time. Hence the complaint is liable to be dismissed.
4. The O.P.No.2 (Bank) has filed its written statement and averred that the O.P. No.2 provided facility of C.C. Loan to M/s Yesh Agency for the purpose of business. For security of the loan, the stock and goods of M/s Yesh Agencies was insured by the O.P.No.1 The New India Assurance Company Limited through O.P.No.2. the Policy // 11 // No.45180011110100000345 was issued by the O.P.No.1 for the period from 15.09.2012 to 14.09.2012. M/s Yash Agencies lodged First Information Report on 11.02.2012 before Police Station Civil Lines, Raipur to the effect that entire stock valuing Rs.55,00,000/- was damaged due to fire and according to Fire Report of Municipal Corporation, Raipur the cause of fire is due to short circuit. M/s Yash Agencies informed the O.P. No.2 that due to fire the stock was burnt and damaged. The complainant is pleading that his claim is not settled by the O.P.No.1 deliberate and the sum assured is not being given to complainant Yash Agencies. The Insurance Company is not providing sum assured under the insurance policy to the complainant therefore, interest is charging on C.C. Limited Loan due to which he is suffering loss and the O.P.No.2 bank is also not receiving interest. By not settling the claim of the complainant, the O.P.No.1 (Insurance Company) has committed deficiency in service and it is the responsibility of the Insurance Company to indemnify the loss suffered by the complainant due to fire. The O.P.No.2 is not responsible for the same. The O.P.No.2 did not commit any deficiency in service. The above incident occurred within the insurance period, therefore, the complainant Yash Agency is entitled to get the sum assured / claim amount from the Insurance Company.
5. The complainant has filed documents. Annexure C-1 is Standard Fire and Special Perils Policy issued by The New India // 12 // Assurance Co. Ltd., Annexure C-2 is letter dated 11.02.2012 written by Amit Bulani to Officer Incharge Police Station, Civil Lines, Raipur, Annexure C-3 is letter dated 11.02.2012 sent by the complainant to the Branch Manager, Union Bank of India, Branch Pandri, Raipur, Annexure C-4 is Fire Report of Municipal Corporation, Raipur, Annexure C-5 is Bill dated 11.02.2012 issued by Municipal Corporation, Raipur, Annexure C-6 is letter dated 10.03.2012 sent by the Branch Manager, Union Bank of India, Pandri Branch, Raipur (C.G.) to Mr. Amit Bulani, Annexure C-7 is Statement of Stock Position sent by the complainant to Union Bank of India, Branch Pandri, Raipur, Annexure C-8 is letter dated 21.07.2014 sent by the O.P.No.1 to Prem Kumar Godwani, Annexure C-9 is letter dated 17.04.2015 sent by the complainant to the Senior Manager, The New India Assurance Company Limited, D.O. No.2, Pandri, Raipur (C.G.), Annexure C-10 is letter dated 28.04.2015 sent by Senior Divisional Manage, The New India Assurance Co. Ltd., Divisional Office II, Raipur (C.G.) to M/s Yash Agency, Annexure C-11 is Receipt Voucher.
6. The O.P.No.1 has filed documents. Ex.OP-1 is Standard Fire and Special Perils Policy, Ex. OP-2 is letter dated 16.02.2012 sent by Shri S.K. Kansal, Surveyor to M/s Yesh Agencies, Ex.OP-3 is letter dated 17.02.2012 sent by Shri S.K. Kansal, Surveyor to M/s Yesh Enterprises, Ex.OP-4 is letter dated 19.02.2012 sent by Shri S.K. Kansal, Surveyor to M/s Yesh Agencies, Ex.OP-5 is letter dated 22.02.2012 sent // 13 // by Shri S.K. Kansal, Surveyor to M/s Yesh Agencies, Ex.OP-6 is letter dated 27.03.2012 sent by Shri S.K. Kansal, Surveyor to M/s Yesh Agencies, Ex.OP-7 is letter dated 29.04.2012 sent by Shri S.K. Kansal, Surveyor to M/s Yesh Agencies, Ex. OP-8 is letter dated 21.05.2012 sent by Shri S.K. Kansal, Surveyor to M/s Yesh Agencies, Ex.OP-9 is final reminder dated 01.06.2012 sent by Shri S.K. Kansal, Surveyor to M/s Yesh Agencies, Ex. OP-10 is final reminder - 1 dated 05.08.2012 sent by Shri S.K. Kansal, Surveyor to M/s Yesh Agencies, Ex.OP-11 is letter dated 31.07.2012 sent by The New India Assurance Co. Limited, Divisional Office - 2, Raipur to M/s Yesh Agencies, Ex.C-12 is letter dated 28.08.2012 sent by Divisional Manager, The New India Assurance Company Limited, Divisional Office- 2, Raipur (C.G.) to M/s Yesh Agencies, OP-13 is Survey Cum Investigation Report of Shri S.K. Kansal, Surveyor, OP-14 are letter dated 11.03.2013 sent by Divisional Manager, The New India Assurance Company Limited, Divisional Office - II, Raipur (C.G.) to Mr. S.KI. Kansal, Surveyor and Loss Assessor, letter dated 11.03.2013 sent by Divisional Manager, The New India Assurance Company Limited, Divisional Office - II, Raipur (C.G.) to the Branch Manager, Union Bank of India, Pandri, Raipur (C.G.) and letter dated 11.03.2013 sent by Divisional Manager, The New India Assurance Company Limited, Divisional Office - II, Pandri, Raipur (C.G.) to M/s Yesh Agencies, Ex.OP-15 is Opinion Report of Yash Agencies, Raipur dated 12.07.2014 given by Agrawal // 14 // and Pansari, Chartered Accountants and Form No.11 Registration Certificate. Annexure B is Loss Intimation Letter dated 11.02.2012, Annexure C-1 to C-3 are various Registration Certificates, Annexure D- 1 to D-3 are Police Report and Fire Brigade Report, Annexure E-1 to E- 4 is First List of Damaged Stock, Annexure E-5 is Second List of Damaged Stock, Annexure E-6 is Location Map of Damaged Stock, Annexure E-7 to E-9 is Third List of Damaged Stock, Annexure E-10 to E-12 is details of damaged stock (Table), Annexure E-13 to E-15 is Third List of Damaged Stock (with reference of purchase bills), Annexure E-16 is Final Working of Loss (Table), Annexure F-1 to F-10 are purchase bills, Annexure G-1 to G-11 are letters written to the insured, Annexure H-1 & H-2/OP-16 is Claim Form, Annexure I-1 is various data of Trading Accounts (Table), Annexure I-2 is Audited Balance Sheet, Annexure J is statements submitted to bank (Table), Annexure K-1 & K-2 is Agreement, Annexure Art.1 to 132 are photographs.
7. The O.P.No.2 has not filed documents.
8. Shri Sudipto Gupta, learned counsel appearing for the complainant has argued that the complainant has obtained Standard Fire and Special Perils Policy policy from O.P. No.1 for the sum assured Rs.60,00,000/- which is effective for the period from 15.09.2011 to 14.09.2012. A sum of Rs.17,190/- was paid by the complainant to the O.P.No.1 towards premium. The O.P.No.2 provides Cash Credit // 15 // facilities to the complainant for facilitating its business operations. On 10.02.2012, fire broke out in the premises of the complainant's firm where near about stock worth Rs.55,00,000/- were stored in the godown due to fire all stocks were damaged. The matter was immediately reported to Police Control Room and fire fighters came in the place of occurrence to control the fire and they extinguished the fire. The matter was also intimated to the OPs and written notice was tendered by the complainant to the O.P.No.2 on 11.02.2012 along with all relevant documents. The O.P.No.1 appointed Shri S.K. Kansal, as Surveyor who came to place of occurrence and the complainant submitted to him all documents required by him and he assessed the loss. The complainant supplied all relevant documents to the O.P.No.1, but the O.P.No.1 did not settle the claim of the complainant, then the complainant filed an application before the O.P. No.1 seeking Survey Report and other documents, which were not provided to the complainant. The O.P.No.1 kept pending the claim of the complainant for near about 3 ½ years and thus committed unfair trade practice and deficiency in service, hence the complainant has been forced to file the instant complaint before this Commission seeking reliefs against the OPs and the complainant is entitled to get compensation as prayed by him in the complaint. He placed reliance on New India Assurance Co. Ltd. & National Insurance Co. Ltd. Vs. Dev Medical Agency & Anr. IV (2015) CPJ 65 (NC); St. Divyal, Through Its Prop. Trinath Khera // 16 // Vs. United India Insurance Co. Ltd. & Ors. I (2016) CPJ 389 (NC); New India Assurance Co. Ltd. & Anr. Vs. Raja Associates, I (2016) CPJ 368 (NC); Dnyana Yogi Shri Shivakumar Swamiji Sugars Ltd. Vs. New India Assurance Co. Ltd. & Ors., I (2016) CPJ 568 (NC); New India Assurance Co. Ltd. Vs. M/s. Trimurthi Tablewares Ltd. 1986- 2013 Consumer 18892 (NS) and Harsolia Motors Vs. National Insurance Co. Ltd., I (2005) CPJ 27 (NC).
9. Shri Shishir Bhandarkar, learned counsel appearing for the O.P.No.1 has argued that the claim of the complainant was closed on 28.08.2012. First letter was sent to the complainant on 31.07.2012 and second letter was sent on 28.08.2012 and the complainant was intimated that his claim file closed by the O.P.No.1. The complainant filed instant complaint on 06.02.2016 which is hopelessly barred by time. The complainant is not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. Shri Shishir Bhandarkar, has further argued that the Surveyor had written letters to the complainant for providing relevant documents, but the complainant did not provide relevant documents to the Surveyor, and the Surveyor assessed the loss to the tune of Rs.9,34,838/-. The complainant submitted Fire Insurance Claim Form before the O.P.No.1 in which the complainant himself agreed to settle him claim for Rs.9,34,838/-, but the complainant did not submit documents which were demanded by the O.P.No.1, therefore, the claim of the complainant // 17 // was closed. The Surveyor did not consider the Audit financial statement for year 2008-09, 2009-10, 2010-11 and 2011-12,Bank statement prior to three months from the date of loss, Copy of accounts of the suppliers and Sales Tax Return for last two years, therefore, Survey Report of the Surveyor has not been considered by the O.P.No.1 and the complainant is not entitled to get any relief from the O.P.N.1. The complaint is liable to be dismissed.
10. Shri D.K. Agrawal, learned counsel appearing for the O.P.No.2 has argued that the dispute is related between the complainant and the O.P.No.1, therefore, the complaint be dismissed against the O.P. No.2.
11. We have heard learned counsel for the parties and have also perused the documents filed by the parties in the complaint case.
12. Firstly we shall examine whether the complainant is a consumer ?
13. Section 2(1)(d) of the Consumer Protection Act, 1986 runs thus :-
"(d) "consumer" means any person who,-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does // 18 // not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];"
Explanation:- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment;"
14. Section 2(1)(o) of the Consumer Protection Act, 1986 runs thus :-
"(o) " "service" means service of any description which is made available to potential [users and includes, but not limited to the, provision of] facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction,] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
15. In the instant cash, the complainant obtained insurance policy from the O.P.No.1 and paid premium thereof. The contract of insurance is contract of indemnity and therefore, obtaining insurance policy is not covered within purview of commercial transaction and insurance policy is for indemnifying the loss and insured who take // 19 // insurance policy cannot carry on any commercial activity with regard to the insurance policy taken by the complainant.
16. In Ashish Vishwakarma Vs. National Insurance Company Limited & Others, II (2012) CPJ 169 (NC), Hon'ble National Commission has observed that "Contract of insurance is a contract of indemnity and therefore, there is no question of commercial purpose in obtaining insurance coverage. It has also been held that the insured could not trade or carry out any commercial activity with regard to the insurance policy, being barred to do so under Section 3 of the Insurance Act, 1938."
17. In The Divisional Manager, L.I.C. vs. Shri Bhavanam Srinivas Reddy, 1991 (2) CPR 144 (NC), Hon'ble National Commission, observed thus :-
"3. The first point of objection raised by the Insurance Company before the State Commission and reiterated before us namely is that no dispute arising out of a contract of insurance can be made subject matter of adjudication under the Consumer Protection Act. This contention cannot be sustained in view of decision of this Commission dated July 28, 1989 in Shri Umedilal Aggarwal v. United India Assurance Company Ltd., F.A. Nos.3 and 4 of 1989 (Reported in I (1991) CPJ-3, 1991 (1) CPR 217 (NC), wherein we have held as follows :-
"We find no merit in the contention put forward by the insurance company that a complaint relating to the failure on the part of the insurer to settle the claim of the insured within a reasonable time and the prayer for the grant of compensation in respect of such delay will not fall within the jurisdiction of the // 20 // Redressal Forums constituted under the Consumer Protection Act. The provision of facilities in connection with insurance has been specifically included within the scope of the express 'service' by the definition of the said word contained in Section 2(i)(o) of the Act. Our attention was invited by Mr. Malhotra, learned counsel for the Insurance Company to the decision of the Queen's Bench in National Transit Insurance Company Ltd. vs. Customs and Central Excise Commissioner, (1975) (1) all England Reports Page 303) The observations contained in the said judgment relating to the scope of the expression 'insurance' occurring the schedule of the enactment referred to therein are of no assistance at all to us in this case because the context in which the expression is used in the English enactment considered in the case is entirely different. Having regard to the philosophy of the Consumer Protection Act and its avowed object of providing cheap and speedy redressal to consumers affected by the failure on the part of persons providing "service" for a consideration, we do not find it possible to hold that the settlement of insurance claims will not be covered by the expression "insurance" occurring in Section 2(1)(d). Whenever there is a default or negligence in regard to such settlement of an insurance claim that will constitute a 'deficiency' in the service on the part of the Insurance company and it will be perfectly open to the concerned aggrieved consumer to approach the Redressal Forums under the Act seeking appropriate relief. We, accordingly over the objection raised by the Insurance Company regarding the jurisdiction of the State Commission to adjudicate upon the complaint.
18. In The Divisional Manager, L.I.C. vs. Uma Devi, 1991 (1) CPR 662 (NC), Hon'ble National Commission, observed thus :-
// 21 // "8. The very fact that the Insurance Act provides for a machinery for remedy for grievances arising out of repudiation of a claim under section 45 leads to show that the Corporation has to satisfy a Court that the repudiation was justified. Accordingly, it is for the consumer to choose a forum convenient to him to seek remedy for the loss suffered because of deficiency in service. As the provisions of this Act are in addition to and not in derogation of any other law for the time being in force, the State Commission has the jurisdiction to entertain the complaint and to investigate whether the repudiation was justified or not and to grant such relief as deems fit if it is satisfied that there was deficiency in service. We therefore, cannot uphold this contention in view of the decision of this Commission in Revision Petition No.12 of 1990 (New India Assurance Co. Ltd. v. Vipro Electronics Pvt. Ltd., 1991 (1) C.P.R. (NC) 531, where the identical point has been elaborately discussed".
19. In The New India Assurance Co. Ltd. vs. M/s Vipro Electronics Pvt. Ltd., 1991 (1) C.P.R. (N.C.) 531, the Hon'ble National Commission, observed thus :
"We are not impressed with the contention raised by Shri S.K. Paul, learned counsel appearing on behalf of the Petitioner that merely because of Insurer had totally repudiated his liability in respect of the claim, no proceedings could be validly initiated under the Consumer Protection Act by the insurer. This contention squarely falls within the ruling given by this Commission in Ummedilal Agrawal v. United India Assurance Co. Ltd. (O.P.No.3 & 4 of 1989, decided on 28.7.1989". In that decision this Commission has observed that it is not possible to hold that settlement of a disputed insurance claim will not be covered by the expression "service" occurring in Section 2(d) of the Act. It was laid down that whenever there is default or negligence in regard to service that will constitute "deficiency in service" on the // 22 // part of the insurer and it is perfectly open to the aggrieved party for seeking appropriate relief under the Act.
In the result, the Revision Petition has no merits and it is accordingly dismissed".
20. In M/s. Harsolia Motors vs. M/s. National Insurance Co. Ltd. & Ors. 2005 (1) CPR 1 (NC), Hon'ble National Commission, has observed thus :-
"13. In Halabury's Laws of England Vol. 25, 4th Edition, the origin and common principles of insurance is discussed and in paragraph 3 it has been discussed and in paragraph 3 it has been mentioned that it is based on principle of indemnity. Thereafter, relevant discussion is to the effect that most of contract of insurance belong to general category of contracts of indemnity. In the sense that insurers' liability is limited to the actual loss which is , in fact, proved. The contract is one of indemnity and, therefore, insured can recover the actual amount of loss and no more.
14. In this view of the matter, taking of the insurance policy is for protection of the interest of the assured in the articles or goods and not for making any profit or trading for carrying on commercial purpose.
16. We would refer to few relevant judgments :
In Regional Provident Fund Commissioner vs. Shiv Kumar Joshi, (2000) 1 SCC 98, the Court elaborately considered the provisions of Sections 2(1)(d) and 2(1)(o) as well as earlier decisions and held that :-
"The combined reading of the definitions of 'consumer' and 'service' under the Act and looking at the aims and object for // 23 // which the Act was enacted, it is imperative that the words "consumer" and "service" as defined under the Act should be construed to comprehend consumer and services of commercial and trade-oriented nature only. Thus any person who is found to have hired services for consideration shall 'be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2(1)(o) of the Act."
The aforesaid ratio makes it abundantly clear that the services may be for any connected commercial activity, yet it would be within the purview of the Act."
21. The insurance policy was taken by the complainant for protection of his interest on his property and not for making any profit, therefore, the complainant is "consumer" and dispute between the parties is "consumer dispute".
22. Now we shall examine whether the complaint is barred by time ?
23. According to the complainant, in mid night of 10.02.2012 fire broke out in the premises of the complainant firm. The O.P.No.1 issued letter to the O.P.No.1 on 21.07.2014 asking him for further documents that were never sought befroe. Thereafter the complainant submitted an application under RTI Act before the O.P.No.1 and sent a letter on 17.04.2015 to the O.P.No.1, but the O.P. No.1 did not settle his claim, therefore, the complaint is within limitation.
// 24 //
24. According to the complainant his claim has not yet been repudiated by the O.P.No.1, therefore, the cause of action is continuous cause of action because cause of action will arise from the date of repudiation of claim, hence the complaint is within limitation. On the contrary, Shri Shishir Bhandarkar, learned counsel appearing for the O.P.No.1 has argued that the cause of action will arise from the date of incident and not from the date of repudiation of the claim. The claim file of the complainant was closed by the O.P.No.1 on 28.08.2012 and intimation in this regard was given to the complainant.
25. In Kandimalla Raghavaiah And Co. Vs. National Insurance Co. & Anr., (2009) 7 Supreme Court Cases 768, Hon'ble Supreme Court observed thus:
"18. The term "cause of action" is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as "bundle of facts", which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, "cause of action" means the cause of action for which the suit is brought, "Cause of action" is cause of action which gives occasion for and forms the foundation of the suit. (See Sidramappa v. Rajashetty.) In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out."
26. In Smita Madhav Patki Vs. National Insurance Co. Ltd. & Ors, I (2013) CPJ 331 (NC), Hon'ble National Commission observed thus:
// 25 // "17. State Commission in its order has observed:
5. Cause of action for the insurance claim in question but arose on the death of late Madhav Patki and not on the date of repudiation of the insurance claim as alleged by the complainant. A useful reference can be made to the decision of the Apex Court in the matter of Kandimalla Raghavaiah & Co. v. National Insurance Co.
Ltd. and Others, 2009 CTJ 951 (SC) (CP). Insurance claim, thus, is preferred beyond the period of two years from the date of cause of action, supra and as such barred by limitation. There is no application for condonation of delay, admittedly, made.
6. Janata Personal Group Accident Policy is on record. Amongst other terms it also submitted as under:
"It is also hereby further expressly agreed and declared that if the Company shall disclaim liability to the insured for any claim hereunder and such claim shall not within 12 calendar months from the date of such ...have been made the subject of a suit in a Court of Law then the claim shall for all purpose be deemed ... been abandoned and shall not thereafter be recoverable hereunder."
7. As held by the Apex Court in the matter of Himachal Pradesh State Forest Co. Ltd. v. United India Insurance Co. Ltd, (2009) 2 SCC 252, though above referred clause in view of Section 28 of the Contract Act will not be acted upon for the curtailment of the period of limitation still the later part of it which refers to extension of the right itself unless exercised within specified time can be enforced. Therefore, since the claim was not made within 12 calendar months from the date of happening, the claim shall for all purposes be deemed to have been abandoned and is not recoverable after the expiry of the said period.
8. For the above said reasons, we find that no fault can be found with the impugned order resulting into dismissal of consumer complaint. Holding accordingly, we pass the following order."
27. In Ganpat Rama Madhavi Vs. New India Assurance Company Ltd. IV (2011) CPJ 210 (NC), Hon'ble National Commission has // 26 // observed that "If the Insurance Company had not repudiated claim and taken more than two years to take decision of claim, aggrieved insured could not have waited indefinitely and would have had to file consumer complaint from date of occurrence of peril. Period of limitation cannot be reckoned from the date of repudiation of claim. Complaint time barred."
28. In National Flask Industries Ltd. vs. Dakshin Gujarat Vij Co. Ltd. & Ors., IV (2015) CPJ 566 (NC), Hon'ble National Commission has observed thus :-
"23. ....... The cause of action will arise from the date of incident and not from the date, when the Insurance Company has given a decision on the complaint/claim. The complainant should have filed the complaint immediately, within two years and should have given the notice to the OPs, within the said two years, in order to file the complaint within time."
29. In the instant case, the incident of fire took place in the premises of the complainant in mid night of 10.02.2012, therefore, the cause of action had arisen on 10.02.2012. According to the complainant, he submitted claim form along with relevant documents before the O.P.No.1 in the month of February, 2012.
30. The O.P.No.1 filed letter dated 31.07.2012 sent by the O.P.No.1 to the complainant, which is marked as Ex.OP-11. In the said letter it is mentioned thus :-
// 27 // "mijksDr fo"k;kUrxZr nkok dk losZ djus gsrq gekjs }kjk losZ;j Jh ,l-ds- dUly ¼bUnkSj½ dks fu;qDr fd;k x;k FkkA muds }kjk loZs Hkh fd;k x;k gSA gkfu dk vkadyu ds fy, oS/kkfud nLrkostksa dh t:jr gksrh gSA muds }kjk nLrkostksa dh ekax Hkh fd;k x;k gSa fdarq vkids }kjk pkgh x;h nLrkost vkt fnukad rd losZ;j dks miyC/k ugh djk;k x;k gSA ftl dkj.k fjiksVZ rS;kj djus esa vleFkZ gSA vkils vuqjks/k gS fd losZ;j dks muds }kjk pkgh x;h leLr nLrkost 'kh?kz miyC/k djkosa] ftlls dh os viuk losZ{k.k fjiksVZ ds lkFk gkfu dk vkadyu Hkh 'kh?kz dj ldsaA pwafd 08 ekg O;rhr gks pqdk gS ;fn vki 15 fnol ds vUrxZr nLrkost tek ugh djrs gS rks ;g ekudj nkok Qkby dks fujLr dj fn;k tk;xk dh vki nkok ysus ds bPNqd ugh gS] bldh lEiw.kZ oS/kkfud ftEesnkjh vkidh gksxhA "
31. The O.P.No.1 has filed another letter dated 28.08.2012 (Ex.OP-
12) which was sent by the O.P. No.1 to the complainant, in which it is specifically mentioned that the claim file of the complainant was closed and intimation in this regard is given to the complainant. It appears that the claim file of the complainant was closed by the O.P.No.1 on 28.08.2012. Even if for the sake of argument, it is presumed that the claim file of the complainant was not closed and the O.P.No.1 did not settle the claim of the complainant, and thereafter letter was sent by the complainant to the O.P.No.1 on 17.04.2015. It appears that the complainant sought documents from the O.P.No.1 under RTI Act, on 17.04.2015 i.e. after expiry of two years.
// 28 //
32. In Improvement Trust, Faridkot Through Its Executive Officer & Anr. vs. Bhupinder Kaur, II (2000) CPJ 56, Punjab State Consumer Disputes Redressal Commission, Chandigarh observed thus :-
"3. For the cause of action accruing prior to June, 1993 a period of three years limitation was prevalent and for the cause of action accruing thereafter the period of limitation is governed by Section 24- A of the Consumer Protection Act, which provides a period of two years limitation only. It may be observed that any correspondence between the parties will not give a fresh cause of action for filing the complaint. The auction took place in 1981 and as per allegations of the opposite party the plot was resumed on January 11, 1994. Even if there was some correspondence, sent by the complainant, that will not give fresh cause of action. On February 17, 1995 the Improvement Trust is alleged to have written a letter to the complainant to pay Rs.7,586/- and on doing so, they would issue the no dues certificate. Assuming that to be the date of cause of action, the complaint was required to be filed within a period of two years. The present complaint filed on December 2, 1997 is clearly barred by time."
33. In United Bank of India vs. Janata Paradise Hotel and Restaurant, IV (2014) CPJ 383 (NC), Honble National Commission has observed thus :-
"6.......... correspondence does not extend limitation, particularly, when first request for refund is made after claim became time-barred. In this matter, claim became time barred in the year 1995 and letter has been written on 18.11.2007. Complainant has not placed any letter from 1995 to 2007 and, thus claim being barred by limitation, learned District Form committed error in allowing complaint."
// 29 //
34. In Vandan Pareshkumar Manghita vs. The Divisional Manager, National Insurance Co. Ltd., 2014 (4) CLT. 254, Hon'ble National Commission has observed that "Mere correspondence does not extend limitation and complaint was to be filed within period of 2 years from first intimation."
35. Mere sending letter under RTI Act does not give rise to fresh cause of action and mere submission of representation to letter to the O.P.No.1 does not arrest time. It appears that letter was sent by the complainant to the O.P. No.1 on 17.04.2015 after period of two years, whereas the instant complaint has been filed by the complainant on 06.02.2016 i.e. after two years of accrual of cause of action, therefore, the complaint is barred by time.
36. In view of above discussions, we hold that the complaint of the complainant is barred by time, therefore, the same is liable to be and is hereby dismissed without going into merits of the case. No order as to the cost of this complaint.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member 08/08/2016 08/08/2016 08 /08/2016 08/08/2016