State Consumer Disputes Redressal Commission
Arun Kumar Ojha vs Icici Lombard Bank Ltd. on 10 October, 2022
Daily Order M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL PLOT NO.76, ARERA HILLS, BHOPAL FIRST APPEAL NO. 166 OF 2012 (Arising out of order dated 20.12.2011 passed in C. C. No.773/2011 by District Commission, Gwalior) ARUN KUMAR OJHA, S/O SHRI RAMSWAROOP OJHA, R/O HANUMAAN NAGAR, GOLA KA MANDIR, GWALIOR (M.P.) .... APPELLANT. Versus 1. ICICI LOMBARD GENERAL INSURANCE CO.LTD. THROUGH MANAGER, JANAK VIHAR COMPLEX, SECOND FLOOR, 6, MALVIYA NAGAR, OPPOSITE AIRTEL, NEAR NEW MARKET, BHOPAL (M.P.) 2. ICICI LOMBARD GENERAL INSURANCE CO.LTD. THROUGH MANAGING DIRECTOR, BANK TOWERS, BANDRA-KURLA COMPLEX, MUMBAI, MAHARASHTRA-400 091 .... RESPONDENTS. BEFORE: HON'BLE SHRI A. K. TIWARI : PRESIDING MEMBER
HON'BLE DR. SRIKANT PANDEY : MEMBER HON'BLE SHRI D. K. SHRIVASTAVA : MEMBER COUNSEL FOR PARTIES : Shri Hemant Sharma, learned counsel for the appellant. Shri Aditya Sharma, learned counsel for the respondents. O R D E R (Passed on 10.10.2022)
The following order of the Commission was delivered by A. K. Tiwari, Presiding Member:
This appeal by the complainant/appellant is directed against the order dated 20.12.2011 passed by the District Consumer Disputes Redressal Commission, Gwalior (for short 'District Commission') in C.C.No.773/2011 whereby the complaint filed by the complainant/appellant has been dismissed as barred by limitation.
-2-2. The case of the complainant/appellant in brief is such that a dumper bearing registration no. MP-07 GA-1127 owned by the complainant was insured with the opposite parties-insurance company for a period from 23.02.2008 to 22.02.2009 for IDV of Rs.7,20,000/-. On 08.01.2009 at Bhitarwar, unknown miscreants robbed his dumper of which police complaint was made and a crime was registered as Crime No.10/2009. A claim was filed with the insurance company. It is alleged that on 29.09.2010 he had filed FR with the insurance company but the insurance company did not decide his claim which amounts to deficiency in service and unfair trade practice. He therefore, filed a complaint with the District Commission seeking IDV of vehicle Rs.7,20,000/- along with 12% interest, Rs.25,000/- as compensation and Rs.10,000/-as costs.
3. The District Commission after hearing learned counsel for the complainant on the question of limitation and admission, dismissed the complaint holding that as per Section 24A, the complainant did not file the complaint within a period of two years from the date of cause of action.
4. Heard. Perused the record.
5. Learned counsel for the complainant/appellant argued that the District Commission failed to appreciate the fact that the complaint is filed during pendency of claim with the insurance company. He had applied for final report on 15.09.2010 and received the same on 27.09.2010. He sent -3- the same through courier on 25.03.2011 to the insurance company. Thereafter legal notice was also sent on 24.08.2011. The District Commission committed grave error in dismissing the complaint as barred by limitation at the admission stage only. The District Commission ought to have issued notice to the opposite party and after receipt of reply, the point of limitation was to be considered. The impugned order is against the facts and law. It is therefore prayed that the impugned order be set-aside and the appeal be allowed.
6. Learned counsel for the opposite parties-insurance company supported the impugned order and argued that from the record, it is established that the complaint is hopelessly barred by limitation and therefore, the District Commission has rightly dismissed the complaint
7. We have gone through the record. From the averments made in the complaint as also from the impugned order, we find that the dumper owned by the complainant was robbed by some unknown miscreants on 08.01.2009 of which police complaint was made on 09.01.2009 (C-9) and crime no.10/2009 was registered. Thus cause of action for the first time arose for the complainant on 08.01.2009 itself. We find that the Final Report (FR)/challan was filed on 08.11.2009 (C-1) and the complainant applied for copy of the same on 15.09.2010 and received on 29.09.2010 and he sent the same through courier to the insurance company on 25.03.2011 i.e. -4- almost after six months. In the complaint, the complainant did not mention anywhere that when he wrote to the insurance company or when he filed claim along with requisite documents with the insurance company. On the other hand the insurance company vide letter dated 10.02.2009 and letter dated 18.02.2009 (C-7) & (C-4) sent second reminder and sought some documents including FR.
8. The complainant's dumper was robbed on 08.01.2009, therefore the cause of action arose for the complainant/appellant on the very same day, whereas the complaint under question has been filed on 01.12.2011 beyond the prescribed time limit of two years which was hopelessly barred by limitation. Appellant tried to take shelter of legal notice dated 24.08.2011 (C-3) for considering the limitation, but it is well settled that by serving legal notice or by making any representation, the period of limitation cannot be extended.
9. The complainant, just to bring the complaint within prescribed time limit, in paragraph 12 of his complaint has stated that cause of action arose after 29.09.2010, when he sent copy of FR to the opposite party insurance company. There is no application under Section 24 A of the Act for condonation of delay in filing complaint. Thus we find that the complaint is hopelessly barred by limitation.
-5-10. So far as the argument of learned counsel for the appellant, that the District Commission committed grave error in dismissing the complaint as barred by limitation at the admission stage only. The District Commission ought to have issued notice to the opposite party and after receipt of reply, the point of limitation was to be considered is concerned, it is the primary duty of the District Commission before admitting the complaint to see, whether complaint is within limitation and maintainable under the Consumer Protection Act, 1986 or not. Without any application for condonation of delay, the District Commission cannot extend period of limitation sue-motto. On the point of limitation, reply to the complaint is not required. The District Commission has to see the legal position and if the complaint is not filed within limitation, the District Commission has power to dismiss the complaint as barred by limitation without awaiting the reply of the opposite party. Even otherwise the law is settled on this issue. The Hon'ble Supreme Court in Kerala Agro Machinery Corporation Limited Vs Bijoy Kumar Roy and Others (2002) 3 SCC 165 in paragraph 8 has held that "the question of stage of the proceeding has no relevance so far as the question of limitation is concerned."
11. The Hon'ble Supreme Court in Haryana Urban Development Authority Vs B. K. Sood IV (2005) 1 SC in paragraph 9 & 10 has held as under:
-6-9. "Section 24A of the Consumer Protection Act, 1986 expressly cast a duty on the Commission admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within a period of two years from the date on which cause of action had arisen."
10. The Section debars any fora set up under Act, admitting a complaint unless the complaint is filed within two years from the date of which cause of action has arisen.....
In the present case, cause of action arose on 08.01.2009 and the complaint has been filed on 01.12.2011 and no application under Section 24A of the Consumer Protection Act, 1986 has been filed.
12. Recently, the Hon'ble Supreme Court in Hema Hitesh Shah & Anr Vs HDFC Bank Limited III (2022) CPJ 63 (NC) has held that action of communication between the parties after cause of action has arisen does not amount to cause of action starts running, it continues and remedy is to be sought within prescribed period of limitation.
13. In Kandimalla Raghavaiah & Co. Vs National Insurance Company Limited & Anr. III (2009) CPJ 75 (SC) has held that Section 24A, Consumer Protection Act bars Consumer Fora from admitting complaint after two years from date of cause of action. It is further held that cause of action could not be assumed to continue till the date of denial of the claim.
14. There is closure letter dated 18.07.2009 of the insurance company is also on record in which reference was made to earlier reminders dated 10.02.2009 and 18.02.2009. In the said closure letter, it has been -7- specifically mentioned that failing to send the documents we would be compelled to close your claim in our records. Even otherwise, from the aforesaid closure letter dated 18.07.2009, the complaint filed on 01.12.2011 is barred by limitation. If the complainant should have been vigilant he could have filed the complaint earlier but he did not bother to file any application under Section 24A seeking condonation of delay. Apart from this the complainant/appellant failed to file any decision of Hon'ble Supreme Court or Hon'ble National Commission to show that the period of limitation will start from the date of filing of FR/challan and not from the date of cause of action.
15. In view of the above discussion, we have no hesitation to say that the complaint filed 01.12.2011 for the cause of action arose on 08.01.2009 as also from the closure letter dated 18.07.2009 and that too without an application for condonation of delay under Section 24A of the Act was manifestly barred by limitation and the District Commission was justified in dismissing the complaint holding that the complaint was barred by limitation. Thus the appeal being devoid of substance is liable to be dismissed.
16. In view of the above discussion, we do not find any illegality or infirmity in the order passed by the District Commission calling interference in appeal.
-8-17. In the result, the appeal fails and is hereby dismissed with no order as to costs.
(A. K. Tiwari) (Dr. Srikant Pandey) (D. K. Shrivastava) Presiding Member Member Member