State Consumer Disputes Redressal Commission
Chirag Khandelwal vs Manager Reliance General Insurance ... on 1 March, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2015/618
Instituted on : 07.12.2015
Chirag Khandelwal, Age 35 years,
S/o Shri Rajesh Khandelwal,
R/o : C/o : Shri Krishna Roadways
Ganesh Market, Ring Road No.2, Bhanpuri,
Raipur, District Raipur (C.G). ... Appellant
Vs.
1. Manager,
Reliance General Insurance,
Ravi Bhawan, Jaistambh Chowk,
Tehsil and District Raipur (C.G.)
2. Manager,
Reliance General Insurance,
Reliance Centre - 19,
Lalchand Hiranand Marg, Balard Estate,
Mumbai 400001 .... Respondents
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :-
Shri Jatinder Singh Sainsari, for the appellant.
Shri Manoj Prasad, for the respondents.
ORDER
Dated : 01/03/2016 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against the order dated 06.10.2015, passed by the District Consumer Disputes Redressal Forum, Raipur (C.G). (henceforth "District Forum" for short), in Complaint Case // 2 // No.120/2012. By the impugned order, learned District Forum, has dismissed the complaint of the appellant (complainant).
2. Briefly stated the facts of the case are that the appellant (complainant) is registered owner of vehicle baring registration No.CLPT-2515 Truck, Chassis No.426031, G.S.Z. 208282, Engine No.70C62557492. The said vehicle was insured with the respondents (OPs) vide Policy No. 230378334005217 and Cover Note Number is 10800/082702. The vehicle was insured for the period from 30.03.2009 to 29.03.2010. On 08.05.2009, Eicher Sheet was loaded in the said vehicle and it was coming to Raipur from Raurkela, near N.H.6 Kauwajhar, the driver of the truck trailer cut the vehicle due to which vehicle bearing registration No.C.G.04-HA-1788 became uncontrolled and was turtled resulting to which dala, cabin, chassis, and engine were damaged. The appellant (complainant) gave intimation to the respondents (OPs) regarding the incident. After receiving the intimation regarding the incident the respondents (OPs) conducted necessary investigations and registered the claim as Claim No.2091098306/2009. After registration of the claim, as per instruction of R.I.G. the said vehicle was taken to M/s Preet Automobiles, Arang for repairing. As per instructions of the respondents (OPs) the vehicle was repaired in which a sum of Rs.2,45,334/- was incurred. The above amount was required to be paid by the respondents (OPs) to the // 3 // appellant (complainant). The appellant (complainant) personally contacted the respondents (OPs) several times and requested for making payment of Rs.2,45,334/-, but the respondents (OPs) did not pay the above amount. Thus, the respondents (OPs) refused to pay the above amount and also refused to take the bill. The appellant (complainant) sent legal notice to the respondents (OPs) on 22.02.2012 and demanded the above amount but the respondents (OPs) did not give reply of the notice and also did not pay the above amount. The respondents (OPs) committed deficiency in service. Therefore, the appellant (complainant) has filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The respondents (OPs) have filed written statement and averred that the complaint is neither maintainable in law nor on facts and no cause had arisen to the appellant (complainant) to prefer this complaint. The complaint of the appellant (complainant) is not maintainable at all as the case is time barred and filed beyond the limitation as prescribed under Section 24 of the Consumer Protection Act, 1986. As per complaint of the appellant (complainant), the date of accident was 08.05.2009 and without any intimation that the vehicle got repaired. After about 2 years and 09 months a notice was sent to the respondents (OPs). The same was also done after the prescribed // 4 // limitation in Consumer Protection Act, 1986. The complaint is not maintainable for want of cause of action and complaint of the appellant (complainant) is liable to be dismissed with cost. The appellant (complainant) has failed to provide necessary documents to the respondents (OPs). Moreover any intimation regarding the alleged accident has not been provided in time. Thus immediate intimation regarding the alleged accident was not provided to the respondents (OPs) and thus there was no immediate intimation as required under the term and condition no.1 of the insurance policy and therefore the appellant (complainant) has not filed any complaint before the District Forum within the prescribed limitation. The appellant (complainant) has made the complaint relying on the terms of the policy and as per terms of the policy any dispute should be adjudicated by the Arbitrators. The complaint filed by the appellant (complainant) is not maintainable as the respondents (OPs) have not committed any deficiency in service. The complaint is liable to be dismissed with cost. The District Forum has no jurisdiction to entertain and adjudicate upon the dispute involve in the complaint in as much as it is not a consumer dispute and does not fall within the ambit of provisions of the Consumer Protection Act, 1986 and as such the complaint is liable to be dismissed summarily on this score alone. The alleged accident was not occurred. Any intimation regarding the accident was not given by the appellant (complainant) to the respondents (OPs). The // 5 // respondents (OPs) have not committed any deficiency in service. The complaint may kindly be dismissed with exemplary cost.
4. The appellant (complainant) has filed documents. Document A-1 is Reliance Goods Carrying Vehicle Package Policy Certificate Cum Policy Schedule, A-2 is national permit for goods carrying vehicle, A-3 is Certificate of Fitness of vehicle bearing registration No.C.G.04-HA-1788, A-4 is Certificate of Registration of vehicle bearing registration No.C.G.04-HA-1788, A-5 is Police Hastakshep Ayogya Apradh ki suchna, A-6 is Gate Pass, A-7 is Cash / Credit Memo dated 13.01.2012 of M/s Preet Automobiles, A-8 and A-9 are postal receipt, A-10 is registered notice dated 22.02.2012 sent by Shri D.P. Sharma, Advocate to the Manager, Reliance General Insurance, Raipur (C.G.), A-11 is registered notice dated 22.02.2012 sent by Shri D.P. Sharma, Advocate to Manager, Reliance General Insurance, Mumbai, A-12 is Inal Survey of Vehicle, Claim details.
5. The respondents (OPs) have filed documents. Annexure OP-1 is Policy terms and conditions.
6. After having considered the material placed before it by the District Forum, the District Forum, dismissed the complaint.
7. Shri Jatinder Singh Sainsari, learned counsel for the appellant (complainant), has argued that the appellant (complainant) obtained // 6 // insurance policy from the respondents (OPs) and the policy was effective for the period from 30.03.2009 to 29.03.2010. On 08.05.2009, the vehicle in question met with accident and turtled due to accident. The dala, cabin, and chassis were damaged badly. The matter was intimated to the respondents (OPs) immediately and on being the directions given by the respondents (OPs), the vehicle was taken to Preet Automobiles for repairing work and the vehicle was repaired by the repaired. The appellant (complainant) incurred a sum of Rs.2,45,334/- in repairing of the vehicle. The vehicle in question was kept in the Garage for near about two years and due to financial crisis the vehicle was not got repaired by the appellant (complainant). The vehicle was kept in Garage and the matter was reported to the respondents (OPs), the claim was submitted by the appellant (complainant) before the respondents (OPs). The claim of the appellant (complainant), is pending before the respondents (OPs) and the authorized web site of the respondents (OPs) shows that the claim No.2091098306/2009 is pending before the respondents (OPs) and the same is exhibiting in the web site of the respondents (OPs), therefore, cause of action is continuous cause of action and the complaint filed by the appellant (complainant) is within limitation, but learned District Forum has erroneously held that the complaint filed by the appellant (complainant) is bared by limitation, therefore, the impugned order passed by the District Forum is erroneous and is liable to be set aside.
// 7 // He placed reliance on Lakshmi Bai & Ors. Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. III (2011) CPJ 507 (NC).
8. Shri Manoj Prasad, learned counsel for the respondent (OPs) has argued that the accident took place on 08.05.2009, but the intimation regarding the incident was not immediately given to the respondents (OPs). The appellant (complainant) has filed complaint on 02.04.2012, therefore, the complaint is barred by time, hence the learned District Forum has rightly dismissed the complaint of the appellant (complainant) by holding that the complaint is time barred.
9. We have heard learned counsel for both the parties and have also perused the record of the District Forum.+
10. Now we shall examine whether the complaint is barred by time ?
11. According to the appellant (complainant), still the claim of the appellant (complainant) has not been repudiated by the respondents (OPs), therefore, the cause of action is continuous cause of action because cause of action will arise from the date of repudiation of the claim, hence the complaint is within limitation. On the contrary, Shri Manoj Prasad, learned counsel for the respondents (OPs) has argued that the cause of action will arise from the date of incident and not from the date of repudiation of the claim.
// 8 //
12. 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."
13. In Smita Madhav Patki Vs. National Insurance Co. Ltd. & Ors, I (2013) CPJ 331 (NC), Hon'ble National Commission observed thus:
"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 // 9 // 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."
14. In Ganpat Rama Madhavi Vs. New India Assurance Company Ltd.IV (2011) CPJ 210 (NC); Hon'ble National Commission has 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."
15. 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 // 10 // 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.
16. In Eggro Paper Moulds Limited Vs. New India Assurance Company Ltd. I (2016) CPJ 404 NC, Hon'ble National Commission has observed that "Insurance Claim - Discharge voucher signed by complainant on 17.2.1998 - No immediate protest was ever raised - Protest was raised for first time vide letter dated 6.5.1998 - Such like correspondence do not extend time, particularly, when case is 'fully and finally settled' - Case was filed beyond expiry of two years."
17. In the instant case, the appellant (complainant) pleaded in para 10 of the complaint that the cause of action for filing complaint has been continuously accrued to the appellant (complainant) from 08.05.2009 when the vehicle bearing registration No.C.G.04-HA-1788 met with accident and from 30.12.2011 when the repairing of the vehicle was completed and when intimation regarding the payment of the amount given through e-mail and the respondents (OPs) refused to make payment and when the appellant (complainant) himself paid the amount on 13.01.2012. The above contention of the appellant (complainant) is not acceptable. The facts of the judgment cited by the appellant (complainant) is quite distinguishable from the facts of the instant case and will not help the appellant (complainant).
// 11 //
18. 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."
19. In Jansatta Sahkari Awas Samiti Limited Vs. Kone Elevators India Pvt. Ltd. & Anr., I (2016) CPJ 190 (NC), Hon'ble National Commission, has observed that "Merely sending a notice does not constitute a cause of action nor does it extend period of limitation."
20. Therefore, merely the vehicle in question was kept in garage for repairing and intimation was given by the appellant (complainant) to the respondents (OPs) on 30.12.2011 regarding the completion of the repairing work and after payment of the amount on 13.01.2012 does not rise to fresh cause of action and merely sending notice or representation to the respondents (OPs) does not arrest time. The incident took place on 08.05.2009 whereas the complaint has been filed on 02.04.2012 i.e. after 2 years of the occurrence of the accident, therefore, the complaint is barred by time, hence the learned District Forum, has rightly observed in para 11 of the impugned order that the complaint is time barred.
// 12 //
21. Therefore, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member 01 /03/2016 01 /03/2016 01 /03/2016 01 /03/2016