State Consumer Disputes Redressal Commission
Gurmeet Transport Company vs The New India Assurance Co. Ltd. on 26 February, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 278 / 2007
Gurmeet Transport Company
......Appellant
Versus
Divisional Manager, The New India Assurance Co. Ltd.
.....Respondent
FIRST APPEAL NO. 285 / 2007
The New India Assurance Co. Ltd.
......Appellant
Versus
Gurmeet Transport Company
.....Respondent
Sh. H.L. Khanna, Learned Attorney for the Complainant
Sh. M.K. Kohli, Learned Counsel for the Insurance Company
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Dated: 26/02/2008
ORDER
(Per: Justice Irshad Hussain, President):
Both these appeals, one by the complainant - consumer and the other by the insurance company, have been filed against the order dated 30.07.2007 passed by the District Forum, Dehradun, partly allowing consumer complaint No. 15 of 2003 and directing the insurance company to pay compensation of Rs. 56,000/- within a period of 60 days from the date of the order, failing which, the amount has been directed to carry interest @9%p.a. from the date of filing of the complaint till the date of payment and also to pay Rs. 5,000/- as damages towards harassment and mental agony and litigation expenses.2
2. Complainant had claimed compensation of Rs. 1,70,000/- together with interest @18%p.a. and Rs. 15,000/- by way of litigation expenses. By way of his appeal, the complainant has urged that the compensation awarded by the impugned order, is inadequate and is not based on proper appreciation of the material on record and the expenses incurred in the repair of the accidental vehicle. The insurance company has, however, urged that the District Forum has not properly and legally considered the fact that the complaint was hopelessly barred by time and that the complainant having not complied with the formalities of the company and having not brought the vehicle for re-inspection, the claim had been validly repudiated and the complainant was not entitled to any compensation by way of reimbursement of loss suffered to the vehicle in the accident, which took place on 23.09.1989, when the insured vehicle No. DIG-5717 fell down in a gorge at Kolukhet, Mussoorie, District Dehradun.
3. The submissions of the learned attorney for the complainant and the learned counsel for the insurance company, give rise to the following points for determination of these appeals on merit:
(i) Whether the complaint was barred by time and the finding to the contrary of the District Forum, is incorrect?
(ii) Whether the compensation awarded is inadequate or the complainant was not entitled to any compensation at all?
4. Point No. (i) - Section 24A of the Consumer Protection Act, 1986, provide limitation period for a consumer complaint and the same is two years from the date on which the cause of action has arisen. Para 7 of the consumer complaint clearly narrate the fact that the claim preferred for reimbursement of the loss, was repudiated vide letter dated 29.06.1994 of the insurance company. This letter No. 310900/OPS/SM/94-93 dated 29.06.1994 is Paper No. 25 on the 3 record of insurance company's appeal. There can be no doubt that the cause of action has arisen by repudiation of the claim on 29.06.1994 and the learned attorney for the complainant rightly submitted that the period of limitation started running from this date. Since the consumer complaint No. 15 of 2003 was filed on 23.01.2003, much after period of two years from the date of the cause of action, the period during which, the complainant was prosecuting earlier complaint and consequential legal proceedings, need to be excluded for computation of the period of limitation, keeping in view the mandate of Section 14 of the Limitation Act, 1963, which has been made applicable to the proceedings under the provisions of the Consumer Protection Act, 1986. The following facts would suggest as to how much time during which the complainant was prosecuting earlier complaint and consequential proceedings, need to be excluded for computation of the period of limitation of two years for the consumer complaint No. 15 of 2003, the order in which gave rise to these appeals:
Sl. Nature of the Date of Date of Number of
No. Proceedings institution / disposal / days of the
filing dismissal pendency
required to
be excluded
(a) Complaint No. 21.09.1994 28.02.1995 160 days
621 of 1994
(b) Application for 14.07.1997 27.10.1998 470 days
restoration of
complaint No.
621 of 1994 at its
original number
(c) Appeal No. 60 of 11.12.1998 10.12.2002 1459 days
2002, filed to set (filed before
aside the order State
dated 27.10.1998 Commission
passed in , Lucknow)
restoration
application
Total 2089 days
4
5. The other facts relevant for the purpose pertain to period / time, which elapsed between the cause of action and the filing of the consumer complaint No. 15 of 2003. The cause of action has arisen on 29.06.1994 and the complaint was filed on 23.01.2003, i.e., after 3127 days.
6. To determine as to whether the complaint filed was within time or not, the computation of the period of limitation has to be made by deducting the total number of days taken during the above proceedings plus period of two years as provided under Section 24A of the Consumer Protection Act, 1986 from the total number of days between the date of cause of action and the date of filing of the complaint. This way, the total number of 2089 days of earlier proceedings plus 730 days (two years period of limitation) = 2819 days, need to be deducted from above-mentioned 3127 days (number of days between the cause of action and the date of filing of the complaint) and by doing so, i.e., 3127 - 2819 = 308 days, it turn out to be delay, by which the complaint No. 15 of 2003 was filed.
7. This aspect of the matter may also be considered by another angle. Although the cause of action has arisen on 29.06.1994, as referred above, the complainant had filed an earlier consumer complaint No. 458 of 1991 (Paper Nos. 88 to 93 on the record of the insurance company's appeal) for reimbursement of the loss and alleged that cause of action arose on 23.09.1989, the date of accident of the vehicle. This complaint was registered on 27.06.1991 and was dismissed on 24.03.1992. This complaint, thus, remained pending for 270 days. The complainant thereafter filed Writ Petition No. 2942 of 1992 (Paper Nos. 113 to 115 on the same record, first page is memo of writ petition and the rest is copy of order), against the financier and 5 the insurance company and this was dismissed on 21.04.1997, with the observation that, "if the petitioner has any claim against the insurance company, it may proceed against it, if so permissible under law". The writ petition remained pending for 1702 days. If for arguments sake, the days spent under these two proceedings are added to above-mentioned 2089 days spent in the proceedings referred above, the total comes to 2089+270+1702 = 4061 days. The other fact relevant for the purpose of this assumption pertain to the period / time, which elapsed between the cause of action, i.e., 23.09.1989 (the date of the accident of the vehicle) and 23.01.2003, the date of filing of the consumer complaint No. 15 of 2003 and the total number of days of the said period comes to 4866 days. In order to see as to whether the complaint No. 15 of 2003 was within time, the total number of 4061 days of earlier proceedings plus 730 days (two years' period of limitation) = 4791 days, need to be deducted from 4866 days (number of days between the cause of action, i.e., 23.09.1989 and the date of filing of the complaint, i.e., 23.01.2003) and by doing so, i.e., 4866 - 4791 = 75 days, turn out to be the delay, by which the complaint was filed by the complainant, even though 160 days spent in the proceedings of consumer complaint No. 621 of 1994 (complaint filed on 21.09.1994 and dismissed on 28.02.1995), overlap with the period spent in the proceedings of the writ petition, referred above. In other words, the delay in filing the complaint would come to 75 + 160 = 235 days.
8. From perusal of the record, it is evident that the complainant neither sought to condone the delay in filing the consumer complaint, by showing any sufficient cause in the complaint itself, nor filed a separate application with a prayer for condonation of delay. The District Forum has, however, opined that the complaint having been filed per order dated 10.12.2002 of State Consumer Disputes 6 Redressal Commission Uttarakhand, Dehradun in Appeal No. 60 of 2002 (new number), the same was in time. Learned attorney for the complainant submitted that the view taken by the District Forum was just and proper, whereas per contra, learned counsel for the insurance company it can't be so in view of the settled legal principle that no court or legal fora, has power to extend the period of limitation. Considering the legal aspect of the matter, we see merit in the argument of the learned counsel for the insurance company in view of the settled principle that Law of Limitation has to be applied with all its rigour, when a statute so prescribe. We also have no hesitation in observing that the order dated 10.12.2002 passed by the State Commission in the above appeal, merely gave an option to the complainant to file fresh complaint and it did not legally extend the period of limitation for filing fresh complaint. We also cannot lose sight of the fact that the order of the State Commission dated 10.12.2002 could not be legally interpreted to condone the negligence, inaction and laches on the part of the complainant in the prosecution of relevant legal proceedings.
9. From above, it is, thus, abundantly clear that the consumer complaint was filed after delay of 308 or alternatively 235 days and the same being barred by time, was not legally maintainable and was liable to be dismissed as such. The view taken by the District Forum to the contrary, is incorrect. The point is answered accordingly.
10. Point No. (ii) - In determining the loss sustained, the District Forum placed reliance on final survey report (Paper Nos. 47 to 55 on the same record) and did not accept the contention of the complainant that the complainant spent sum of Rs. 1,95,450/- towards repairs of the vehicle, for which the estimate was submitted. The plea that the salvage of the accidental vehicle was worth Rs. 1,30,000/-, was also 7 rejected and in our view, rightly so. The reason being that despite asking, the complainant neither submitted genuine bills showing expenses to the tune of Rs. 1,95,450/-, nor brought the vehicle after repair for re-inspection. Not only this, it turn out that the complainant submitted fake / fictitious bills of the parts of the vehicle by alleging that the accessories were purchased by him from Kuldip Motor Company, Delhi. The copies of these bills are Paper Nos. 59 to 63 on the same record. On a query being made from the said concern, it was found that the cash memos were not genuine and that the accessories were not purchased from the said concern, as was affirmed by it vide letter dated 28.12.1990 (Paper No. 64 on the same record). It is of significance that the insurance company had, way back in the year 1992 while contesting the above-mentioned Writ Petition No. 2942 of 1992, taken plea that the complainant filed bogus cash memos in support of his claim. There was, thus, no cogent evidence to prove the allegation of the complainant regarding the amount spent in the repairs of the vehicle and, therefore, the District Forum was justified in accepting the loss assessed by the surveyor Sh. B.B. Garg vide his report referred above, except that the District Forum did not notice that the surveyor had in addition to the loss assessed, recommended payment of Rs. 4,000/- as expenses for retrieving the vehicle from the gorge. Considering the damage sustained to the vehicle as detailed in the surveyor's report, the value of the salvage was also rightly assessed at Rs. 5,000/-. It is immaterial that the complainant later on went on to sell the truck for sum of Rs. 1,30,000/- and it could not have been taken to dispute the propriety and correctness of the assessment of the loss made by the surveyor. Argument to the contrary advanced by the learned attorney for the complainant carry no conviction and the reported decisions in the matter of M/s Special Machines, Karnal Vs. Punjab National Bank and others; I (1991) CPJ 78, Koyal Textiles Vs. United India Insurance Co. Ltd.; I (2007) CPJ 8 135 (NC) and M/s Bhag Singh Pretam Singh Vs. M/s Maruti Udyog Limited and others; I (1992) CPJ 7 (NC), pressed into service, also have no bearing on the peculiar facts of the case.
11. In view of above, the complainant was only entitled to be reimbursed for losses to the tune of Rs. 56,000/-, as determined by the District Forum and further sum of Rs. 4,000/- by way of retrieving expenses. The District Forum has awarded interest and, as such, there was no point in awarding damages for mental agony and in the totality of the circumstances of the case, a sum of Rs. 2,000/- as litigation expenses, could have justly been awarded to the complainant. To that extent, the order of the District Forum could have been modified, in case the complaint was not be to be dismissed as barred by time in view of the finding under point No. (i). At any rate, in view of the finding that the complaint was barred by time, the contrary view of the District Forum cannot be upheld and the complaint is liable to be dismissed. The appeal filed by the insurance company is fit to be allowed accordingly. The point is answered accordingly.
12. First Appeal No. 278 of 2007 is dismissed and First Appeal No. 285 of 2007 is allowed. Order dated 30.07.2007 of the District Forum is set aside and the consumer complaint No. 15 of 2003 is dismissed. No order as to cost.
13. Let the copy of the judgment be kept on the record of First Appeal No. 285 of 2007.
(C.C. PANT) (JUSTICE IRSHAD HUSSAIN) Kawal