State Consumer Disputes Redressal Commission
Shyam Industries vs National Insurance Co. Ltd. on 10 March, 2022
BEFORE THE RAJASTHAN STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, JAIPUR
FIRST APPEAL NO: 267/2021
Shree Shyam Industries through partner Sh.Ashok Yadav, J-495, 496 RIICO
Industrial Area, Sitapura, Jaipur.
Vs.
Manager, National Insurance Co. Ltd. Divisional Office First, Panch Batti,
M.I.Road, Jaipur.
Date of Order 10.3.2022
Before:
Hon'ble Mr. Justice Banwari Lal Sharma-President
Hon'ble Mrs. Shobha Singh- Member
Hon'ble Mr. Shailendra Bhatt -Member Mr. Ashok Kumar Yadav learned counsel for the appellant Mr.Prashant Mantri learned counsel for the respondent BY THE STATE COMMISSION ( PER HON'BLE MR. JUSTICE BANWARI LAL SHARMA, PRESIDENT ):
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Present appeal is preferred by the appellant complainant assailing the impugned judgment dated 24.2.2021 passed by the learned DCC Jaipur 2nd Jaipur in Complaint Case No. 1461/2014 ( Shree Shyam Industries Vs. Manager, National Insurance Co. Ltd.) whereby the learned DCC dismissed the complaint of complainant. Brief facts relevant for this appeal are that initially complainant filed a consumer complaint before the learned DCF Jaipur 4th Jaipur on 30.3.2011 being Complaint Case No. 914/2013 u/s 12 of the Consumer Protection Act,1986 wherein it was pleaded that complainant is having industrial unit in Sitapura Industrial Area, Jaipur. He purchased insurance policy for plant, machinery, stock and building for the period
2.5.2009 to 1.5.2010 for Rs. 21 lakhs. On 29.10.2009 since there was fire in IOC depot and due to blast the building and machinery of the complainant was damaged. Information was given to the insurer but even after receiving information insurance company did not take any cognizance. Thereafter on 4.12.2009 a legal notice was served on the insurer still no action was taken by the insurer. Therefore, complainant on his own got assessed the loss from the surveyor and loss assessor 3 and according to the report of surveyor the loss was assessed as Rs. 4,90,924/-. Thereafter claim was submitted before the insurer but insurer did not allow the claim. Accordingly, insurer committed deficiency in service. Lastly it was prayed that the complaint may be allowed and loss may be awarded in favour of the complainant with interest alongwith mental agony and litigation expenses. Insurer in its reply pleaded that no information was given to the insurer regarding damage occurred in the unit of complainant. Not only it claim was also not filed. Lastly it was prayed that complaint may be dismissed.
Thereafter after hearing learned DCF disposed of the complaint in following terms:
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Thereafter on 13.10.2014 a second complaint was filed by the appellant complainant before the learned DCC Jaipur 2nd Jaipur being Complaint Case No. 1461/2014 (Shree Shyam Industries Vs. Manager, National Insurance Co. Ltd.) wherein reiterated the facts mentioned in the earlier complaint additionally pleaded that certified copy of the order dated 25.2.2014 was received on 7.3.2014 and thereafter on 10.3.2014 he tried to file the claim before the insurer but the employees of insurer refused to receive the claim form in compliance of earlier order dated 25.2.2014 and it was instructed that the claim will be received after ten days. On 24.3.2014 when complainant again approached to the insurer, they refused to receive the claim form and directed to file the complaint before the Court. Thereafter he sent the claim form on 25.3.2014 by post. Thereafter on 1.4.2014 a written letter was received from the insurer contrary to the order of learned DCC dated 25.2.2014 dismissing the claim. Lastly it was prayed that complaint may be allowed and the loss suffered by the complainant i.e. Rs. 4,90,924/- may be directed to be paid to the complainant. The expenditure for preparing survey report i.e. Rs. 6,900/-, for mental and physical agony 5 Rs.50,000/- and for litigation expenses Rs. 20,000/- may be awarded with interest in favour of the complainant.
In reply opposite party insurer it was pleaded that complainant himself did not comply the judgment dated 25.2.2014 and after expiry of limitation period directed by the Hon'ble DCC claim was filed which could not be entertained. All allegations in the complaint were denied and pleaded that these are false. Thereafter vide judgment dated 24.2.2021 the complaint was again dismissed against which this appeal is filed. During pendency of second complaint it was dismissed in default on 31.5.2016 against which First Appeal No. 968/2016 was preferred before this Commission which was allowed by the coordinate bench of this Commission vide order dated 13.7.2017.
Mr. Ashok Kumar Yadav learned counsel appearing on behalf of appellant submits that since learned DCC in earlier judgment dated 25.2.2014 directed the insurer to decide the 6 claim on merits but insurer without going into merits dismissed the claim only on technical ground of limitation. He submits that thereafter fresh limitation starts. Without considering this fact learned DCC wrongly dismissed the complaint on ground of limitation. Therefore, this appeal may be allowed. Learned counsel for the appellant relied on New India Assurance Co. Ltd. Vs. Smt. Satvinder Kaur & anr. Reported in 2012 NCJ 366 (NC).
Per contra Mr. Prashant Mantri learned counsel appearing on behalf of respondent supported the impugned judgment and submitted that learned DCC in earlier judgment which was passed in first round clearly directed that if complainant files claim within a month from the date of order i.e. 25.2.2014 then insurer will decide it on merits within a month. Since complainant is very much negligent and he did not file claim form before the respondent insurer within a month but it was filed after the time given by the learned DCC that too without the required documents therefore, same was again repudiated. He submits that one month's time was given 7 to the complainant by the learned DCC in earlier judgment dated 25.2.2014 for filing second complaint but second complaint was filed after six months 13 days. He submits that the period was given by the learned DCC was only one month but the complaint was filed after more than six months and no application for condonation of delay was submitted by the complainant therefore, complaint is not maintainable. He further submits that once limitation starts it does not stop and fresh limitation cannot start. In this case as per first complaint the limitation was started after 15 days from issuing legal notice dated 4.12.2009 i.e. 19.12.2009. Thereafter vide judgment dated 25.2.2014 learned DCC has given only one month's time for filing claim and directed the insurer to decide the same within one month and thereafter if insurer repudiates the claim then one month's time was given to complainant for filing second complaint and that was the special privilege given by the learned DCC to the complainant but from the perusal of complaint and both judgments it reveals that complainant remained always negligent. It did not file claim before the insurer within one month rather it was filed after one month. Thereafter after repudiation of claim by the insurer the complaint was again filed after more than six months while 8 the period was given for one month only. Considering all these facts learned DCC dismissed the complaint. Lastly it was argued that appeal may be dismissed. We have considered the submissions made by the learned counsels. In New India Assurance Co. Ltd. Vs. Smt.Satvinder Kaur & anr.(supra) Hon'ble NCDRC held that for insurance claim cause of action subsists till the repudiation of claim exists therefore, contention of limitation has no force which is not disputed but here in the present case insurer has repudiated the claim vide letter dated 1.4.2014 therefore, the period given by the learned DCC starts for filing second complaint from 1.4.2014 while the complaint was filed on 13.10.2014 i.e. after more than five months therefore, this judgment help the appellant in this matter. Since it is settled law that once limitation starts it does not stop. In the present case the limitation started on 16.4.2010. Thereafter only one month's time was given by the learned DCC but the second complaint was filed after more than five 9 months that too without any application for condonation of delay. Considering all these facts learned DCC dismissed the complaint which does not require any intereference.
Accordingly, the appeal is dismissed.
(Shailendra Bhatt) (Shobha Singh) (Banwari Lal Sharma) Member Member President nm