National Consumer Disputes Redressal
Newi Ndia Assurance Co. Ltd. vs Girdhar Kumar Saraf on 13 August, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 451 OF 2014 (Against the Order dated 01/07/2014 in Complaint No. 14/2003 of the State Commission Bihar) 1. NEWI NDIA ASSURANCE CO. LTD. 87, M.G. Road, Fort, Mumbai and Regional Office at Jeevan Bharti Building, Level V, Tower II, 124, Connaught Circus, NEW DELHI-110001 ...........Appellant(s) Versus 1. GIRDHAR KUMAR SARAF (Partner) M/s. Hanumanbux Gaurishankar, Whole Cloth Merchants, Main Road, Jainagar, MADHUBANI ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Appellant : Mr. Salil Paul, Advocate For the Respondent : Mr. Bhopal Singh, Advocate
Dated : 13 Aug 2018 ORDER
This appeal has been filed by the appellant, New India Assurance Company Ltd. against the order dated 1.7.2014 passed by the State Consumer Disputes Redressal Commission, Bihar (for short, State Commission) in CC No. 14 of 2003.
2. Brief facts of the case are that on 11.2.1999, Appellant had taken an insurance cover for burglary and housebreaking for the period 11.2.1999 to 10.2.2000. The policy mandated that it was a condition precedent to liability that theft be followed by actual forcible and violent entry into and/or exit from the premises. On 23.5.1999, theft was committed by persons already inside the premises when the premises were locked for the night. Thieves escaped by opening shutters from inside with keys. On 24.5.1999 surveyor visited site and submitted his report dated 19.6.1999. Finally, the claim was repudiated by the insurance company on 21.7.2001. The complainant filed a consumer complaint before the State Commission. Vide order dated 1.7.2014, the State Commission directed the appellant to pay Rs.20,000/- for mental and physical harassment and settle the claim within three months.
3. Hence, the present appeal.
4. Heard the learned counsel for the parties and perused the record.
5. It was explained by the learned counsel for the appellant that the ground of limitation was inadvertently not taken before the State Commission, however, it is a legal ground and that can be taken at any stage. If the counsel appearing before the State Commission has inadvertently not taken this ground in the written statement filed before the State Commission, the party should not suffer for a mistake done by the counsel.
6. The learned counsel for the appellant further stated that the State Commission has erred in not deciding the issue of limitation first. He stated that the incident had happened on the night of 23/24-5-1999 whereas the complaint has been filed on 23.2.2003. Thus, complaint has been filed with delay if considered from the date of incident. The letter repudiating the claim from the OP was sent on 11.7.2001. The complainant/respondent is claiming limitation from a letter dated 24.12.2001 of the OP which is a reply to the complainant on his letter that was sent for reconsideration of the decision of the repudiation. Learned counsel argued that first of all limitation is to be counted from the date of incident. Learned counsel referred to the judgment of this Commission in Laxshmi Bai Vs. ICICI Lombard General Insurance and others, R.P. Nos.3118-3144 of 2010 with other RPs, wherein the following has been observed:
"10. The term "cause of action", as observed by Hon'ble Supreme Court of India in Kandimalla Raghavaiah and Co. Vs. National insurance Co. Ltd. III (2009) CPJ 75 (SC), "has not been defined under the Consumer Protection Act, 1986 nor in the Code of Civil Procedure but is of wide 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. 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."
7. Learned counsel for the appellant further argued that even if the date of incident is not considered as a cause of action, the next cause of action arose when the OP insurance company repudiated the claim on 11.7.2001. If any further correspondence is made by the complainant, that correspondence cannot stretch the period of limitation. The learned counsel referred to the judgment of this Commission in V.K. Appliances vs. New India Assurance Company Ltd. , IV(2013) CPJ 419 (NC), wherein it has been observed that the complaint should have been filed within two years from the date of repudiation and in that case the complaint was dismissed as it was filed beyond two years from the date of repudiation.
8. Learned counsel for the appellant further stated that the claim was repudiated on the ground that no violent and forcible entry and exit in the premises of the shop could be established as per clause 'A' of the policy. Admittedly, the thieves were inside and they opened the shutter from inside and exited without any force or violence, so it was a stage managed theft where no use of force or violent entry or exit is involved. Thus, clearly a violation of clause 'A' of the policy is there. Until the theft is accompanied by use of force or violent entry or exit, the incident is not covered under this burglary policy. The State Commission has not examined this aspect. In this regard, learned counsel for the appellant has relied upon the judgment of this Commission in National Insurance Company Ltd. vs. Ajay Industrial Corporation, Precision Pipes and Profiles, I (2013) CPJ 14 (NC), wherein the gist of decision is as follows:
"Consumer Protection Act, 1986 - Sections 2(1)(g), 21(a(ii) - Insurance - Infidelity risk of cash - Loss of money- Claim repudiated - Alleged deficiency in service - State Commission allowed complaint - Hence appeal - Money was taken from office cabinet of respondents by one of their employees by using a duplicate/master key and not through use of any violence or force - Loss could only have been indemnified if money was taken by employee when it was in transit - Repudiation justified - impugned order set aside."
9. Further, the learned counsel relied upon the judgement of Hon'ble Supreme Court in M/s. Industrial Promotion Corporation of Orissa Ltd. vs. New India Assurance Company Ltd. and another, Civil Appeal No. 1130 of 2007, wherein it has been held:
"7. Having considered the submissions made on both sides, we are of the opinion that there is no error committed by the MRTP Commission in rejecting the Claim of the Appellant. It is clear from the facts of the present case that the Appellant has made out a case of theft without a forcible entry. The case of the Appellant is that forcible entry is not required for a claim to be made under the policy. Following the well- accepted principle that a contract of insurance which is like any other commercial contract should be interpreted strictly, we are of the opinion that the policy covers loss or damage by burglary or house breaking which have been explained as theft following an actual, forcible and violent entry from the premises. A plain reading of the policy would show that a forcible entry should precede the theft, and unless they are proved, the claim cannot be accepted."
10. On the other hand, learned counsel for the respondent/complainant stated that no point regarding limitation was taken in the written statement filed before the State Commission by the OP. Hence, this ground cannot be taken at the appellate stage. It was further pointed out that the letter dated 24.12.2001 is responsible for creating a cause of action for the complainant to file the complaint when the representation for reconsideration of the repudiation of the claim was rejected by the OP. The complainant wanted to avoid litigation and therefore, he submitted a representation after receiving the repudiation letter dated 11.7.2001. The complaint should not get discarded for avoiding litigation at the first instance on the basis of his effort to first settle the matter with the insurance company itself.
11. It was stated by the learned counsel for the respondent that the State Commission has observed that surveyor has not considered the FIR or the Police Investigation Report as seen from the following observation of the State Commission:
"On perusal of the surveyor's report, it would appear that no observation on the investigation of the Police, upon the FIR lodged by the complainant, is made. The surveyor has although taken notice of the first information report but did not discuss the outcome of the investigation in which the Police had found the facts to be true. There was no valid justification for the surveyor to observe that theft is doubtful since some of the local peoples did not support the fact of theft. It is an admitted fact that the occurrence of theft has taken place at about 1.30 AM on 24-05-1999 and it was not acceptable in the normal circumstances that the local people would be available to witness the occurrence, as such, observing the claim of theft being doubtful in absence of any supporting local people cannot be said to be justified."
12. I have carefully considered the arguments advanced by both the sides and have examined the material on record. In respect of the question of delay in filing the complaint, it is seen that this issue was not raised in the written statement before the State Commission, however, the same has been raised before this Commission in the appeal. The Section 24A mandates that a complaint shall be filed within a period of two years from the date of cause of action. Hon'ble Supreme Court in in case of Kandimalla Raghavaiah & Co. versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made in case State Bank of India vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, as under:-
"12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has held;
8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, 'shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside."
13. On the basis of the above, it is clear that the consumer forum is duty bound to ensure that either the complaint has been filed within a period of two years from the date of cause of action or it condones the delay after proper appreciation of the reasons submitted by the complainant for such delay, if there is any. In the present case, the State Commission has not decided the question of delay, though the learned counsel for the appellant pleads that the complaint was evidently filed beyond the period of two years from the date of cause of action. The State Commission vide impugned order has also not finally decided the complaint in terms of the reliefs sought by the complainant. The claim is to be decided in terms of the burglary and house breaking policy wherein the use of force during entry or exit is to be established alongwith theft. However, this issue has not been properly addressed by the State Commission. The claim of the complainant needs to be decided on the basis of pleadings submitted by both the parties. The insurance company has already repudiated the claim and therefore, further direction to decide the claim of the complainant puts the insurance company in an awkward position and this should only imply that they have to decide the claim in favour of the complainant which may not perhaps be the intention of the State Commission in passing the impugned order.
14. Based on the above discussion, the impugned order dated 1.7.2014 passed by the State Commission is not sustainable and accordingly, the same is set aside. The matter is remanded to the State Commission for deciding the complaint afresh in the light of the above observations made by this Commission. It has already taken about 13 years for the State Commission to decide the complaint and therefore, it is requested that the complaint be now decided within a period of six months on priority basis.
15. Parties to appear before the State Commission on 11.9.2018 ...................... PREM NARAIN PRESIDING MEMBER