National Consumer Disputes Redressal
Tehri Hydro Development Corporation ... vs New India Assurance Co. Ltd. on 25 October, 2002
ORDER
B.K. Taimni, Member
1. This complaint is filed by the complainant Tehri Hydro Development Corporation Ltd. against the opposite party (O.P.) Insurance Company alleging deficiency in rendering of service to the former.
2. Facts of the case are that the complainant obtained an insurance cover for its 32 T Gantry Crane for Rs, 35 lakhs for which a cover note was issued on 16.4.1994 after payment of premium. The insured Crane turned turtle as a result of weatherstorm on 9.6.1994. The policy document had not been issued by this time by the O.P. On a claim being preferred by the complainant, it was not entertained by the O.P. vide its letter dated 24.3.1995 on the ground that the terms of the policy excludes storm peril, as the policy covers only machinery breakdown. The Surveyor appointed by the O.P. asked for certain documents/information on 16.5.1995. A letter was again written on 20.5.1995 by the complainant refuting the letter dated 24.3.1995. Repudiation was reiterated again on 14.7.1995 by the O.P. Correspondence went on between the parties, the complainant impressing upon the O.P. to reconsider the repudiation and admit the claim of insurance and the O.P. finally once again repudiated the claim on 15.9.1998 by the O.P's Head Office in Mumbai.
3. It is in these circumstances that a complaint was filed by the complainant Corp'oration before us on 9.6.1999. The complaint is accompanied by a prayer for condonation of delay. We heard the learned Counsel for the complainant on the issue of limitation. It is his case that the complainant is aware of limitation under the Consumer Protection Act, 1986. The complaint has been filed within two years of the letter of repudiation dated 15.9.1998. As the matter was under correspondence between the parties between June, 1994 to September, 1998, this period cannot be taken into consideration for purposes of determining the period of limitation. According to him, the cause of action first arose in June, 1994 but finally arose on 15.9.1998 when the claim was finally repudiated. They were conscious of the decision of the Hon'ble Supreme Court that before starting the litigation, two Government bodies should explore the possibility to settle the matter before resorting to alternative methods. It is in this spirit that the correspondence was being exchanged and alternative methods were being used to settle the issue. Since finally the repudiation letter was issued on 15.9.1998, they filed this complaint on 9.6.1999 which is within the two years'period laid down under the Consumer Protection Act.
4. Without going into the merits of the claim of the parties, it is undisputed that cause of action arose on 9.6.1994 and claim of the complainant was rejected and not entertained by the O.P- vide its letter dated 24.3.1995. The complaint is filed on 6th June, 1999, after a lapse of almost five years against a stipulated period of filing of a complaint within two years of the cause of action under Section 24-A of the Act which reads as under :
"Limitation period--(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complaint satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period :
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.'
5. In the application for condonation of delay, the reasons explaining the delay is the protracted correspondence between the parties between June, 1994 and September, 1998, general assurance from the O.P. about resolution of the issue, and efforts made to settle the issue in light of judgments of the Hon'ble Supreme Court in the ONGC's case.
6. We see nothing on record to substantiate any initiative on the part of the complainant to have the matter resolved by resorting to the mechanism available in the Cabinet Secretariat nor do we find any material on record supporting the condition of the complainant that they were dissuaded from filing the complaint by the O.P.
7. The learned Counsel for the complainant failed to show us any provision/precedent through which correspondence between the parties extend the period of limitation. We are also not satisfied that a party has to wait till after repudiation for filing a complaint under this Act. To the contrary it strengthens the case of complainant if a complaint is filed within the time limit, making non-settlement -- including non-repudiation as a ground for deficiency in services. Perusal of the material on record makes it clear that the cause of action arose on 9.6.1994 hence the time-limit starts from this date --being the commencement of cause of action. Issue involved as has been expressed very eminently, in the words of Hon'ble Supreme Court, in the State of West Bengal v. Howrah Municipality, AIR 1972 State Commission 749. The point really is whether on the facts stated by the appellant (in the present case by the complainant), it can be held that "it had shown sufficient cause for filing the appeals (complaint in the present case) beyond the period of limitation" (emphasis supplied) and goes on to explain the words 'sufficient cause' "...the words 'sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence or inaction of want of bona fide is imputable to the party".
8. The facts of the case narrated earlier clearly show both negligence and inaction --negligence by not filing complaint within the stipulated time-limit of 2 years from the admitted position of cause of action dated 9.6.1995 -- or even from the date of accident 243.1994 the date of rejection of the claim by the O.P. When this Commission condoned the delay under similar circumstance and the matter was taken to the Supreme Court, the Apex Court observed as under in Kerala Agro Machinery Corporation v. Bijoy Kumar Roy and Ors., II (2002) SLT 267 (SC)=2002 (3) CPR 107 (SC):
"We find that the question of limitation has not been considered seriously at any stage. There is no dispute that the claim petition was barred by limitation. The National Commission has only observed that the delay was due to the assurances given by the dealer to get the defects rectified, but surprisingly no letter has been particularly indicated in the order much less within limitation, by which liability may have been acknowledged by the appellant."
(Emphasis supplied)
9. The tenor of the judgment is that correspondence could have any meaning only if at any stage liability has been acknowledged by the other party. In the present case, we see no such letter from O-P. Facts of this case are that originally the claim was rejected by the Divisional Office. The higher offices upto the Head of Office in Mumbai only entertained the representations from the complainant, which he kept making. In the light of the judgment of Hon'ble Supreme Court, 2002 (3) CPR 107 (SC) no case is made out in support of showing 'sufficient cause' explaining the delay starting from the date of cause of action which we would like to term as negligence on the part of the complainant. The claim was finally repudiated by the OPs Head Office, Mumbai on 15.9.1998. The complaint is filed on 6th June, 1999. This is a period of "inaction" which has not been explained at all. As per the judgment of Hon'ble Supreme Court in AIR 1972 SC 749 reproduced earlier, this "inaction" itself negates the contentions of the complaint. All in all, we are not satisfied that 'sufficient cause' has been shown before us to condone the delay in filing this complaint. In these circumstances, this complaint is dismissed as barred by limitation. We are not passing any judgment on the merits of the case. The complainant, however, shall be free to approach appropriate Forum seeking relief, if so, advised.
No order as to costs.