State Consumer Disputes Redressal Commission
United India Insurance vs Kanya Lal Pandita on 22 April, 2010
J&K STATE CONSUMER DISPUTES REDRESSAL CONNISSION JAMMU J&K STATE CONSUMER DISPUTES REDRESSAL COMMISSION JAMMU Honble Mr. Justice (Retd) G.D.Sharma President And Mr. B.L.Saraf Member
Appeal no; - 2963 / 08 Date of Institution: 18-02-2008 Date of decision 22-04-2010 United India Insurance Co. Ltd Divisional Office-1,Gandhi Nagar Jammu Through Divisional Manager Shri SC Sharma Appellant Versus Kanhaiya Lal Pandita, S/O Late M.N. Pandita, R/O Migrant Quarter No 119 Phase-II Purkhoo Camp, Jammu Respondent
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Counsel for the parties:
Mr. Vishnu Gupta Advocate for the appellant Mr. Sanjay Pandita Advocate for the respondent Whether to be reported in press/Media Whether to be reported in Digest/Journal Per Justice Mr.G.D.Sharma
1.
The appellant United Insurance Co, has through the medium of this appeal, challenged the order passed by the Learned Divisional Forum (Forum hereinafter), on 20-7-07, whereby the complaint filed by the Respondent Kanyala Pandita was allowed and the appellant was directed to pay a sum of Rs. 79000/- alongwith interest @ 6 % from the date of repudiation i,e 18-12-1997 till final realization of the amount. According to the appellants this order was bad in law and against the facts. Therefore they have prayed for setting aside the same.The facts, which have given rise to the impugned order, are stated briefly, as under:-
2. The respondent originally belonged to Village Teng wara Payeen Tehsil on Baramulla Kashmir. He had to move out due to disturbed conditions in the valley. The respondent complainant before the Forum had insured his residential house at Tengwara with the appellant for Rs.
80000/- and the household goods lying therein for Rs. 20,000/. Insurance Policy was effective from 2-2-1990 to 1-2-1991.A jointly receipt was issued in the name of father of the respondent.
3. The insured house was allegedly set on fire by the miscreants in the intervening night of 31st Dec.1990 and 1stJan.1991. On receiving the knowledge of the occurrence; the respondent lodged insurance claim with the appellants which was registered as claim No 111504 /56/7/026/91 and the respondent was informed vide their letter No: 56/7/026/91. A. 04-04-91 (annexure D to the complaint) .The appellant had deputed Mr. M.A,.Sherwani as surveyor and loss assessor. The respondent made available all the documents to the said surveyor. However, latter on he received another letter from Sh. Aijaz.
A Kirmani-other surveyor deputed by the insurer, asking him to submit the same papers. His letter is annexed as Annexure G with the complaint. He was latter on informed that his insurable interest was not ascertained and was asked to prove the same. The respondent submitted all the required papers to Mr. Kirmani vide Annexure J. Thereafter, the surveyor assessed the loss to the tune of Rs 79000/. But it was not paid to him despite the repeated requests. He represented to the appellants vide Annexures L & M .In the meanwhile his father expired in the year 1992.The house in question exclusively belonged to the respondent. On failing to get his claim settled from the appellants, the respondent approached the Forum, which enquired into the matter and after hearing the parties came to pass the order mentioned at the out set. The same is under challenge in appeal.
4. Heard the Learned Counsel for the parties and perused file very carefully.
5. The appellants have challenged the impugned order on the ground that the complainants (respondent) case was time barred. Besides, the respondent had no insurable interest in the insured property which was insured in the name of Maheshwar Nath Pandita. The respondent was not the owner of the insured house. There has been no deficiency on the part of the appellants. The claim was bonafidely repudiated on 18-12-1997. The insured house was in the name of MaheshwarNath Pandita who did not raise the claim with the appellant. That the repudiation was made on 18-12-1997 and the complaint was made before the Forum on 18-12-1999.Therefore, according to the appellant the claim stood extinguished and abandoned.
6. There are certain admitted facts on the record. They are: the house in question was insured for Rs. 80000/ and house hold goods lying therein for Rs. 20,000/- The insurance policy was effective from 2-2-90 to 1-2-1991.The house along with the household goods was set on fire during the intervening night of 31st of Dec. 1990 and 1st Jan. 1991.Two questions arise for the determination viz-i whether the respondent has an insurable interest and (ii) whether the claim has been raised belatedly. This is also admitted that intimation of loss was given to the appellant on 4-4-1991, vide claim no-567/7/026/91
7. The surveyors Mr. Sherwani, vide his letter dated 14-6-1992 (Annexure G with complaint) sought certain documents from the respondent. The appellant also wrote to the respondent vide letter dated 14-2-94 (Annexure-J) to furnish documents to Mr. Kirmani, who received them on 12-8-1995.That the surveyor had assessed the loss to Rs 79000/ is not disputed by the appellant. It is in the record of the case that the respondent vide Annexures L&M dated 2-9-2002 and 7-8-1999 had made representations to the appellant for settlement of the claim, but no action was taken. The appellant has averred that since the insured Maheshwar Nath Pandita who was the owner of the house had not raised the claim, so the claim of the respondent, who had no insurable interest in the property ,was repudiated vide letter dated 18-12-1997.
8. There is one letter no GNM FAM-1271-93 addressed by the appellant (insurer) to the respondent which is to the effect: - After perusal the policy docket it has been observed that Sh. Maheshwar Nath Pandita has taken 4 policies of his assets three in his own name and one in the name of his son Sh. Kanaaya Lal Pandita for which our Development Officer has issued cover notes to him on spot. But he has issued single receipt of the all four cases in the name of Sh. Maheshwar Nath Panduita.As per our records the building, which has been damaged due to fire, is in the name of Sh.
K.L.Pandita. Since the building has been damaged due to fire and same has been expired as such we are unable to change the title of the policy as requested by you.
9. This letter substantiates the claim of the respondent that building in question was insured in the name of the respondent but the development officer had issued cover notes to M.N.Pandita.The policies were 4 in number, for them a single receipt was issued in the name of M.N.Pandita.For those reasons the Learned Forum has rightly observed that merely on this ground the repudiation of respondents claim was bad. Regarding the other contention raised by the appellant that the complaint was not preferred within 12 calendar months from the date of repudiation, it is stated said that no record has been produced by the appellant, to show when such repudiation was brought to the notice of the respondent. The period of 12 calendar months would start to run from the date when repudiation was conveyed to the respondent. The Learned Forum has rightly held that the letter, which is claimed to be an intimation of repudiation of the claim, was not sent on the address given by the respondent in annexure-J and issued by him to Mr. Aijaz A Kirmani, the surveyor. So we hold that repudiation was not conveyed properly to the respondent.
10. Mr. Vishnu Gupta appearing for the appellant has placed reliance on 1999 KLJ 232. Wherein it has been held that the claim could be entertained by the Commission within 3 years from the date of cause of action and beyond that period the insured has to satisfy the Commission about the existence if sufficient cause. In this case as said above the cause of action would arise only when the respondent was intimated about the repudiation of his claim. But as it was not done the limitation would not run against him. Therefore, in our opinion the law referred above would not advance the case of the appellant. Mr. Gupta has, then, referred 2008 SCCR 542 Kamlesh Babu and ors appellant v/s Lajput Raj Sharma & ors Respondent 2009 (2) Supreme 784 S B I v/s M/S B.S. Agriculture Industries. In 2008 SCCR 542. It has been held that the court is duty bound to dismiss a suit or an appeal or an application, made after the prescribed period, although, limitation is not set as a defence. This a legal proposition nobody can dispute. In the given case, this authority is not applicable. Similarly in 2005 (7) Supreme 467 a proposition of law has been laid down that a complaint must be dismissed which has been filed after the limitation period and the complainant does not account for the delay. In 2009 (2) Supreme 784 it has been held that if the complaint is barred by time and yet the Consumer Forum decides the same on merits, the Forum would be committing the illegality.
On the facts of the case at hand these authorities may not help the cause of the appellant. Against the backdrop of the above discussion, we find no merit in this appeal, which is dismissed with cost of Rs. 2000/. The appeal is consigned to records and the record of the Forum be returned at once.
PRESIDENT MEMBER