State Consumer Disputes Redressal Commission
N.H.P.C. Ltd. Parbati. vs New India Assurance Co. Ltd. & Ors. on 19 June, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
Misc. Application No. : 565/2018
Consumer Complaint No.: 08/2019
Date of Presentation : 09.08.2018
Order reserved on M.A : 15.05.2019
Date of Order on M.A : 19.06.2019
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N.H.P.C Limited Parbati H.E. Project Stage-II HRT Complex
Garsa District Kullu Himachal Pradesh through its Chief Engineer
(HRT).
...... Applicant/Complainant
Versus
1. The New India Assurance Company Ltd. Head Office 87
Mahatma Gandhi Marg Fort Mumbai-400001 through its
Managing Director.
2. Branch Manager The New India Assurance Company Ltd.
Branch Office N.N Building Akhara Bazar Kullu H.P.
3. Divisional Manager The New India Assurance Company
Ltd. Division Office Hospital Road Mandi H.P.
......Non-applicants/Opposite parties
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Applicant : Mr. Vijay Kumar Arora Advocate.
For Non-applicants : Mr. Jagdish Thakur Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present application is filed by complainant for 1 Whether reporters of the local papers may be allowed to see the order? Yes. N.H.P.C. Limited Parbati Versus New India Assurance Company Ltd. & Ors.
M.A. No.565/2018 & C.C. No.08/2019 condonation of delay of 971 (Nine hundred seventy one) days in filing consumer complaint.
Brief facts of matter :-
2. N.H.P.C Ltd. filed consumer complaint against opposite parties pleaded therein that N.H.P.C. Ltd. is a Central Public Sector undertaking of Govt. of India and is under the administrative control of Union Ministry of Power and is entrusted with the function of development of hydro power across the country. It is pleaded that with the view to cover the risk of road construction complainant procured Contractors All Risk (CAR) policy from opposite parties which was operative w.e.f. 03.07.2013 to 02.07.2014. It is pleaded that on dated 13.08.2013 during operation of insurance policy baley bridge which was constructed by complainant over Puliya nalah was washed away. It is further pleaded that complainant submitted claim before opposite parties but opposite parties repudiated the claim and committed deficiency in service. Complainant sought relief of Rs.5451982/-(Fifty four lac fifty one thousand nine hundred eighty two) with interest @ 18% per annum as compensation. Complainant also sought additional relief of Rs.500000/-(Five lac) for mental agony and physical torture. Alongwith complaint complainant filed application for condonation of delay of 971 (Nine hundred seventy one) days in filing consumer complaint. It is pleaded in the application that on 2 N.H.P.C. Limited Parbati Versus New India Assurance Company Ltd. & Ors.
M.A. No.565/2018 & C.C. No.08/2019 dated 09.12.2013 complainant received repudiation letter from opposite parties. It is pleaded that opposite parties repudiated the claim on the ground that bridges and culverts are not covered under insurance policy. It is pleaded that thereafter complainant filed representation against repudiation letter to higher authorities. It is pleaded that thereafter on dated 19.08.2014 non-applicant rejected the claim of applicant on the ground that bridges and civil works associated with it are not covered under insurance policy. It is further pleaded that thereafter again complainant filed representation to Divisional office of insurance company to review the decision and settle the claim in terms of CAR policy. It is pleaded that thereafter non-applicant No.2 vide letter dated 05.03.2018 again finally repudiated the claim on the ground that only road work is covered under the insurance policy and baley bridge does not fall within the insurance policy. It is pleaded that cause of action to file consumer complaint accrued to complainant on dated 05.03.2018 when finally claim was repudiated by higher authority. It is further pleaded that there is no intentional or wilful delay in filing consumer complaint. Prayer for condonation of delay of 971 (Nine hundred seventy one) in filing consumer complaint sought.
3. Per contra response filed on behalf of non- applicants pleaded therein that cause of action accrued to 3 N.H.P.C. Limited Parbati Versus New India Assurance Company Ltd. & Ors.
M.A. No.565/2018 & C.C. No.08/2019 complainant on dated 09.12.2013 when initial original repudiation letter was issued to applicant. It is pleaded that consumer complaint is barred under section 24A of Consumer Protection Act 1986. It is pleaded that there is no sufficient cause for condonation of delay of 971 (Nine hundred seventy one) days in filing consumer complaint. Prayer for dismissal of application filed for condonation of delay sought.
4. We have heard learned Advocates for parties and also perused the entire record carefully.
5. Following points arise for determination in present application.
1. Whether there are sufficient cause for condonation of delay of 971 (Nine hundred seventy one) days as mentioned in memorandum of ground of application in view of ruling announced by Hon'ble National Consumer Commission comprised of five members bench reported in 1997(II) CPJ 36 NC titled Sirpur Paper Mills Ltd. Versus National Insurance Co. Ltd. and in view of ruling announced by Hon'ble Apex court of India reported in 2009(1) CPJ 55 SC titled Oriental Insurance Company Ltd. Versus Prem Printing Press?
2. Final order.
Findings upon point No.1 with reasons:
6. Applicant filed affidavit of Shri Vishal Tyagi Deputy Manager (Civil) Parbati NHPC Nagwain Ext.A-I in evidence. There is recital in affidavit that applicant obtained Contractors All Risk (CAR) policy from non-applicant No.2 with the view to cover the risk of road construction for a 4 N.H.P.C. Limited Parbati Versus New India Assurance Company Ltd. & Ors.
M.A. No.565/2018 & C.C. No.08/2019 period of 03.07.2013 to 02.07.2014. There is recital in affidavit that on dated 13.08.2013 during operation of insurance policy baley bridge which was constructed by complainant was washed away due to natural calamity. There is recital in affidavit that insurance claim was submitted before opposite parties. There is recital in affidavit that on dated 09.12.2013 deponent received response from insurance company that bridges and culverts are not covered under the insurance policy. There is recital in affidavit that thereafter complainant filed various representations to higher authority against original repudiation letter and on dated 05.03.2018 non-applicants again repudiated insurance claim. There is recital in affidavit that delay in filing consumer complaint was not intentional and wilful in nature but was bonafide in nature. State Commission carefully perused all the annexures filed by applicant.
7. Non-applicants filed affidavit of Sh. Pankaj Kumar Sr. Divisional Manger Ext.NA-I in evidence. There is recital in affidavit that version filed by non-applicants be read as part and parcel of affidavit. There is further recital in affidavit that applicant has failed to show sufficient cause for not filing consumer complaint within stipulated period as prescribed under section 24A of Consumer Protection Act 1986. 5
N.H.P.C. Limited Parbati Versus New India Assurance Company Ltd. & Ors.
M.A. No.565/2018 & C.C. No.08/2019
8. Submission of learned Advocate appearing on behalf of applicant that limitation to file consumer complaint will start from 05.03.2018 from the date of final repudiation letter issued by higher authority of insurance company and will not start from original repudiation letter dated 09.12.2013 issued by insurance company is decided accordingly. It is proved on record that original repudiation letter was issued by opposite parties on 09.12.2013 and it is also proved on record that thereafter representation was filed by applicant before higher authority and higher authority reconsidered the matter afresh several times and finally issued repudiation letter on dated 05.03.2018. It is proved on record that present consumer complaint was filed by applicant on dated 09.08.2018. Hon'ble Apex Court of India in case reported in 2009(1) CPJ 55 SC titled Oriental Insurance Company Ltd. Versus Prem Printing Press held that final decision about the repudiation conveyed to consumer by higher authority would be operative for the purpose of limitation under section 24A of Consumer Protection Act 1986 because till the final decision about repudiation was not conveyed to applicant till then applicant kept on dangling a carrot of hope before non-applicants that matter regarding repudiation claim would be considered afresh. Hon'ble Apex Court of India held that limitation for filing consumer complaint will accrue from latest repudiation 6 N.H.P.C. Limited Parbati Versus New India Assurance Company Ltd. & Ors.
M.A. No.565/2018 & C.C. No.08/2019 letter issued from higher authority and will not accrue from original repudiation letter issued by subordinate authority. It is well settled law that ruling announced by Hon'ble Supreme Court of India is binding upon all Courts, Tribunals and Commissions under Article-141 of Constitution of India.
9. Submission of learned Advocate appearing on behalf of non-applicant that cause of action to file consumer complaint will accrue to applicant w.e.f. 09.12.2013 when the original repudiation was issued to applicant is decided accordingly. State Commission is of the opinion that in view of ruling given by Hon'ble Apex Court of India cited supra there are sufficient cause for condonation of delay in filing consumer complaint. Even Hon'ble National Consumer Commission in case reported in 1997(II) CPJ 36 NC (Five Members Bench) titled Sirpur Paper Mills Ltd. Versus National Insurance Co. Ltd. held that limitation to file consumer complaint will start from final repudiation letter issued by higher authorities and will not start from original repudiation letter issued by subordinate authority. Latest final repudiation letter issued by opposite parties dated 05.03.2018 is quoted in toto :-
REGD.
05-03-2018 Chief Engineer (HRT) PARBATI H.E. PROJECT STAGE-II HRT COMPLEX GARSA DISTT.KULLU HIMACHAL PRADESH-175141 7 N.H.P.C. Limited Parbati Versus New India Assurance Company Ltd. & Ors.
M.A. No.565/2018 & C.C. No.08/2019 Sub- Loss to Bailey bridge due to cloud burst on 13-08-2013.
Policy No.35240144130300000002.
Sir This has reference to your letter ref.No.NH/PP- II/HRT/234/2018 dated 20.02.2018 and earlier letters.
In this regards Please refer our letters dated 09.12.2013, 23.04.2014 and 19.08.2014. Please also refer letter from our worthy Sr. Divisional Manager dated 17.08.2015 (copy enclosed). We again clarify that we have never assured to revert the case and settle accordingly.
We once again inform you that captioned policy was issued covering only Road works and loss to Bailey bridge does not falls under scope of captioned policy and hence your claim pertaining to loss to Bailey bridge due to cloud burst on 13.08.2013 stands closed as "No Claim".
"Endorsements attached to & forming part of the policy"
means if any change is made in policy after issuance of policy those change will be part of policy. Since no changes were made after issuance of policy hence there is no endorsements copy that could be provided to you.
We sincerely hope that we have clarified all your points raised vide your letter dated 20.02.2018.
Thanking you With kind regards Sd/-
(SR. BRANCH MANAGER) CC SR. DIVISOINAL MANAGER D.O. MANDI-FOR YOUR KIND INFORMATION PLEASE.
10. It is well settled law that when there is conflict between order of larger bench and smaller bench then order of larger bench always prevails as per law. In view of above stated facts it is held that there are sufficient cause for condonation of delay of 971 (Nine hundred seventy one) days 8 N.H.P.C. Limited Parbati Versus New India Assurance Company Ltd. & Ors.
M.A. No.565/2018 & C.C. No.08/2019 in filing consumer complaint. Point No.1 is decided accordingly.
Point No.2: Final Order
11. In view of findings upon point No.1 application filed for condonation of delay of 971 (Nine hundred seventy one) days in filing consumer complaint is allowed in view of ruling announced by Hon'ble National Consumer Commission comprised of five members bench reported in 1997(II) CPJ 36 NC titled Sirpur Paper Mills Ltd. Versus National Insurance Co. Ltd. and in view of ruling announced by Hon'ble Apex court of India reported in 2009(1) CPJ 55 SC titled Oriental Insurance Company Ltd. Versus Prem Printing Press subject to payment of costs to the tune of Rs.25000/- (Twenty five thousand) by applicant to non-applicants. Observations shall not effect merits of consumer complaint in any manner. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. M.A. No.565/2018 is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Sunita Sharma Member 19.06.2019 K.D 9