National Consumer Disputes Redressal
M/S. Paras Industries, vs National Insurance Company Ltd. on 3 August, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1756 OF 2012 (Against the order dated 1.2.2012 in Appeal No.1166 of 2006 of the State Commission, Haryana, Panchkula) M/s. Paras Industries, Near Bhupinder Spinning Mills, Kabri Road, Panipat, Through its Proprietor Munish Garg Petitioner Vs. 1. National Insurance Company Ltd. SCO 337-340, Sector-35B, Chandigarh through its Regional Manager, 2. National Insurance Company Ltd. Near IB College, GT Road, Panipat, Haryana, Through its Manager . Respondents BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. ANUPAM DASGUPTA, MEMBER For the Petitioner : Mr. Harsh Jaidka, Advocate Pronounced on: 3rd August, 2012 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER . Present petition has been filed by the petitioner challenging impugned order dated 1.2.2012, passed by State Consumer Disputes Redressal Commission, Haryana ( for short, the State Commission)
2. Brief facts as emerge from the record are that factory premises of petitioner/complainant was insured with the respondents/OPs for the period 11.6.1999 to 10.6.2000. According to petitioner on 13.12.1999, due to sudden fire in the insured factory, stocks of goods amounting to Rs.10,00,000/- were burnt to ashes. Information was given to police vide D.D.R. No. 13 dated 14.12.1999, Police Station Model Town, Panipat. Information was also given to the respondents. The grievance of petitioner before the District Consumer Forum was that respondents did not settle its claim despite repeated requests.
3. Respondents in their written statement took the plea that petitioners claim was closed as No Claim on 30.6.2000 due to non-supply of the necessary documents by the petitioner. Thereafter, there was no correspondence between the parties. Thus, complaint was barred by limitation and it merits dismissal.
4. District Forum while accepting the complaint of the petitioner passed the following order;
we accept the present complaint and direct the OPs to pay the sum of Rs. Ten lacs to the petitioner on account of loss to the stock and Rs. One lacs on account of loss to the machinery, with interest @ 9% from the date of surveyor report, till the realization, within a period of thirty days from the date of receipt of copy of this order. The petitioner shall also be entitled to Rs.2200/- as litigation expenses.
5. Aggrieved by the order of District Forum, respondents filed appeal before the State Commission which accepted the same and order of District Forum was set aside. Consequently, complaint of the petitioner was dismissed being barred by limitation.
6. Hence, the present revision petition.
7. It is contended by learned counsel for the petitioner that letter dated 30.6.2000 of respondents does not say that claim of the petitioner has been rejected/closed. Moreover, petitioner did not receive this letter nor the factum of dispatch of this letter by the respondents has been proved. Further, petitioner had written letters dated 11.1.2004 and 2.2.2005, which were duly received in the office of the respondents. Despite that, claim of the petitioner was not settled and only thereafter complaint was filed on 18.3.2005. Thus, complaint had been filed by the petitioner just after one month of the last representation and the same is not time barred. Learned counsel in support of its contentions has relied upon the following judgments;
(i) Sirpur Paper Mills Ltd. Vs. National Insurance Co. Ltd.
II (1197) CPJ 36 (NC);
(ii) Tanawala Synthetic Textile Ltd. Vs. Oriental Insurance Co. Ltd.
III (1996) CPJ 99(NC) and
(iii) New India Assurance Co. Ltd. Vs. B. N. Sainani AIR 1997 Supreme Court 2938
8. State Commission in its impugned order has held;
It is the case of the opposite party that complainants claim was closed on 30.6.2000 as No Claim. Though the complainant has taken the plea that the opposite party did not settle its claim despite repeated request till the filing of the complaint, but complainants contradictory stand itself has established on the record, the complainant was well aware about the closing of its claim on 30.6 .2000. It is the case of the complainant that a letter dated 16.10.2001 and legal notice dated 25.5.2002 was served upon the opposite party. In other words, the complainant had availed the remedy by serving legal notice dated 25.5.2002 upon the opposite party but despite that complaint was not filed by the complainant within the prescribed period of two years and the complaint was filed on 18.3.2005. Thus, the complaint filed by the complainant was not within the period of limitation. The subsequent correspondence, if any (though it has been denied by the opposite party), the same does not extend the period of limitation. Inference can be drawn from the case law cited as State Bank of India vs. B.S. Agricultural Industries 2009 CTJ 481 (SC) (CP)=JT 2009(4) SC 191, wherein it has been held that;
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.
Honble Supreme Court in case cited as V.N. Shrikhande (Dr.) versus Anita Sena Fernandes 2011 CTJ 1 (Suprme Court) CP) has held that;
Section 24A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. In other words, the consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen.
This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(
2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A (2), the consumer forums will have no option but to dismiss the same.
The facts of the instant case are fully attracted to case law State Bank of India v. B.S. Agricultural Industries (supra) and V.N. Shrikhande (Dr.) v. Anita Sena Fernandes (supra). Thus, the impugned order passed by the District Forum is not sustainable on the ground of limitation.
As the complaint is barred by limitation it cannot be decided on merit in view of the law settled by Honble Supreme Court.
9. Short question which arises for consideration is as to whether complaint filed by the petitioner before the District Forum was within time or the same was time barred.
10. The main plea of learned counsel for the petitioner is that vide letter dated 30.6.2002 of the respondents, petitioners case was closed as No Claim. Petitioner has not placed on record copy of this letter. Be that as it may, as per petitioners case it has served a legal notice dated 25.5.2002 upon the respondents calling upon them to settle the claim and pay the claim amount, within one month from the receipt of the legal notice. Even thereafter, petitioner did not file any complaint before the District Forum. As apparent from record, fire in the factory of the petitioner took place on 13.12.1999, whereas complaint was filed before the District Forum only on 18.3.2005. Legal notice dated 25.5.2002 was duly served upon the respondents, even then petitioner did not file the complaint within the period of limitation. Thus on the face of it, complaint of the petitioner is hopelessly time barred.
11. In State Bank of India Vs. B. S. Agricultural Industries (supra) Apex Court has also observed;
The term cause of action is neither defined in the Act nor in the Code of Civil Procedure, 1908 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.
12. Recently, Apex Court in case Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has observed ;
It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras.
13. Thus, looking from any angle, we have no option but to hold that the complaint of the petitioner filed before the District Forum was hopelessly barred by limitation.
14. Various judgments relied upon by the counsel are not at all applicable to the facts and circumstances of the present case.
15. Under these circumstances, we do not find any reason to disagree with the findings given by the State Commission. Accordingly, present revision petition is not legally maintainable and the same is hereby dismissed with cost of Rs. 5,000/-
16. Petitioner is directed to deposit the cost of Rs. 5,000/- (Rupees Five Thousand Only) by way of demand draft in the name of Consumer Legal Aid Account of this Commission, within four weeks from today.
17. In case, petitioner fails to deposit the aforesaid cost within the prescribed period, then petitioner shall also be liable to pay interest @ 9% p.a., till realization.
18. List for compliance on 14.09.2012.
...J (V.B. GUPTA) (PRESIDING MEMBER) ....
(ANUPAM DASGUPTA) (MEMBER) Sg/SSB