State Consumer Disputes Redressal Commission
Shiv Lal Sahu vs D.M., United India Insurance Co.Ltd & ... on 22 September, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2018/582
Instituted on : 19.07.2018
` Shivlal Sahu, S/o Jugut Ram Sahu,
R/o : Village Pailimeta,
Tahsil - Chhuikhadan, Dist. Rajnandgaon (C.G.). ... Appellant (Complainant).
Vs.
1. Divisional Manager,
United India Insurance Company Ltd.,
First Floor, Tara Complex,
Power House, G.E. Road,
Bhilai, District Durg (C.G.).
2. Branch Manager,
Maharashtra Bank, Branch Pailimeta,
District Rajnandgaon (C.G.)
3. Branch Manager,
United India Insurance Company Limited,
Ashish Lodge Building, Jaistambh Chowk,
Old Bus Stand,
Khairagarh, District Rajnandgaon (C.G.) ..... Respondents (OPs)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Umakant Mahobiya, Advocate for the appellant (complainant).
Shri P.K. Paul, Advocate for the respondent No.1 & 3 (O.P. No.1 & 3).
Miss Radha Rani Gupta, Advocate for the respondent No.2 (O.P. No.2)
ORDER
DATED : 22/SEPTEMBER/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 12.04.2018, passed by District Consumer Disputes Redressal Forum, Rajnandgaon (C.G.) (henceforth "District Forum") in Complaint Case No.43/2017. By the impugned order, learned District Forum, has dismissed the complaint of the complainant.
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2. Briefly stated the facts of the complaint of the complainant are that, previously the complainant was having a Grocery Shop at Village Pailimeta, Tahsil Chhuikhadan and he is proprietor and owner of the above shop. The complainant was earning livelihood by self employment by running the above grocery shop. The O.P. No.1 and O.P. No.3 insured the goods kept in the shop of the complainant. The premium in respect of the insurance policy was deposited through O.P. No.2 with the O.P. No.1 and O.P. No.3. The Policy No.270383/48/14/91/00000107 was issued by the O.P. No.1 & O.P. No.3, which was effective for the period from 23.02.2015 to 22.02.2016. On 26.02.2015 in the night at about 11 P.M. all of sudden fire was caught in the grocery shop of the complainant, due to which all articles kept in the shop i.e. pulse, sugar, oil, besan, maida, potato, onion, soap, rice, wheat and other articles were damaged and the complainant suffered loss f Rs.3,50,000/-. The matter was immediately reported to the Police Station, Gandai on 27.02.2015. The complainant also gave intimation regarding the incident of fire to the OPs. The Nazri Naksha (Spot Map) of the spot was also prepared. In the shop of the complainant goods valuing Rs.2,75,705/- was kept, which was completely damaged due to incident of fire. The complainant suffered heavy loss. The O.P. No.1 and O.P. No.3 insured the grocery shop of the complainant and the complainant suffered loss due to incident of fire, therefore, the OPs are liable to pay compensation to the complainant. The complainant submitted claim before the O.P. No.1 for getting compensation, but the O.P. No.1 did not pay any compensation to the complainant till date. The OPs committed deficiency in service. Hence the complainant has filed the instant complaint before the District Forum and prayed for granting reliefs as mentioned in the complaint.
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3. The O.P. No.1 and O.P. No.3 have filed their written statement denied the insurance, for want of verification. The O.P. No.1 and O.P. No.3 have averred that the complainant has not sent any intimation to the O.P. No.1 and O.P. No.3 regarding the incident of fire, therefore, the cause of action was not accrued to the complainant against the O.P. No.1 and O.P. No.3. As the complainant had not sent intimation to the O.P. No.1 and O.P. No.3 regarding the incident of fire, therefore, the Surveyor could not be appointed by the O.P. No.1 and O.P. No.3 for making assessment of loss. The complaint of the complainant is false and baseless and the same is liable to be dismissed against the O.P. No.1 and O.P. No.3.
4. The O.P. No.2 has filed its written statement and averred that the complainant has obtained the insurance policy from the O.P. No.1 & O.P. No.3 (Insurance Company) through O.P. No.2. The complainant gave intimation regarding the incident of fire to the O.P. No.2 and the same was sent to the O.P. No.1 and O.P. No.3 (Insurance Company) by the O.P. No.2, therefore, the O.P. No.2 did not commit any deficiency in service and the complaint is liable to be dismissed against the O.P. No.2.
5. The complainant has filed documents. Annexure A-1 is Certificate of Insurance, Annexure 2 is report dated 09.03.2015 sent by Officer Incharge, Police Station, Gandai, District Rajnandgaon to Executive Judicial Magistrate, Gandai, District Rajnandgaon (C.G.), Annexure 3 is Nuksani Panchnama, Annexure 4 is letter dated 04.08.2015 sent by the O.P. No.2 to The United India Insurance Co. Ltd., Khairagarh, Annexure 5 is Nazri Naksha (Spot Map), Annexure 6 is Lease of land, Annexure 7 is Form P-II Khasra, Annxure 8 is investigation report sent to Nayab Tahsildar, Gandai, Annexure 9 is panchnama, Annexure 10 is Cash / Credit // 4 // Memo dated 10.12.2014 issued by Prem Hardware, Gandai, District Rajnandgaon, Annexure 11 and 12 is bill dated 19.02.2015 issued by Bhagwati Provision Stores, Gandai,, Annexure 13 is letter dated 02.08.2016 sent by the complainant to the Divisional Manager, United India Insurance Company Ltd.
6. The O.P. No.1 and O.P. No.3 have filed documents. The documents are notice dated 19.06.2017 issued by the District Forum to the Divisional Manager, United India Insurance Co. Ltd.,, copy of complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986, along with his affidavit, order sheet dated 15.12.2016 passed by the District Forum whereby the complaint Case No.74/2016 was dismissed in default, letter dated 04.08.2016 sent by the O.P. No.2 to the United India Insurance Co. Ltd. Khairagarh, Certificate of Insurance, Proposal Form For Dukan Mitra,
7. The O.P. No.2 has filed statement of account of the complainant.
8. Learned District Forum after having considered the material placed before it by the parties has dismissed the complaint of the complainant.
9. Shri Umakant Mahobiya, learned counsel appearing for the appellant (complainant) has argued that the appellant (complainant) has obtained insurance policy from the O.P. No.1 & O.P. No.3 (Insurance Company) for his grocery shop through O.P. No.2 (Bank), which was effective for the period from 23.02.2015 to 22.02.2016. On 26.02.2016, in the night at about 11 P.M., all of sudden fire was caught in the shop of the complainant. Due to fire incident, the articles like pulse, sugar, oil, besan, maida, potato, onion, soap, rice, wheat etc. were completely burnt and the complainant suffered loss of Rs.3,50,000/-. The matter was reported to // 5 // Police Station, Gandai, District Rajnandgaon (C.G.) on 27.02.2015. The Police came to the spot and inspected the sport and prepared spot map and also prepared loss panchnama ¼uqdlkuh iapukek½ and police valued the loss to the tune of Rs.3,50,000/-. The intimation regarding the incident of fire was also given to the O.P. No.1 & O.P. No.3, but the O.P. No.1 and O.P. No.3 did not settle the claim of the complainant. The O.P. No.1 and O.P. No.3 committed deficiency in service. Learned District Forum on the erroneous ground dismissed the complaint by holding that the complaint of the complainant is barred by time. The complaint of the complainant is within limitation. The complainant is entitled to get compensation as prayed by him in the complaint. The impugned order passed by the District Forum, is liable to be set aside. The appeal filed by the appellant (complainant) be allowed.
10. Shri P.K. Paul, learned counsel appearing for the respondent No.1 & 3 (O.P. No.3) has argued that initially the appellant (complainant) before the District Forum, which was registered as Complaint Case No.74/2016 and the same was dismissed on 15.12.2016 in non-appearance of the complainant. The complainant did not mention regarding the earlier complaint filed by him, which was dismissed in default by the District Forum and thus he suppressed the material fact. Thereafter the complainant has filed the instant complaint on 08.03.2017. The cause of action was accrued to the complainant on 26.02.2015, therefore, the complaint is barred by time. The complainant has not filed any application under Section 24A of the Consumer Protection Act, 1986 for condonation of delay in filing the complaint. Therefore, the learned District Forum has rightly dismissed the complaint of the complainant. The impugned order passed by the District Forum, // 6 // is just and proper and does not call for any interference by this Commission. The appeal filed by the appellant (complainant) is liable to be dismissed against the Insurance Company.
11. Miss Radha Rani Gupta, learned counsel appearing for the respondent No.2 (O.P. No.2) has argued that the appellant (complainant) gave intimation regarding the incident of fire to the respondent No.2 (O.P. No.2) and the same was immediately sent to the respondent No.1 & 3 (O.P. No.1 & 3), therefore, the respondent No.2 (O.P. No.2) did not commit any deficiency in service. The impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. The appeal is liable to be dismissed against the respondent No.2 (O.P.).
12. We have heard learned counsels appearing for both the parties and have also perused the record of the District Forum as well as the impugned order.
13. Firstly we shall examine whether the complaint of the appellant (complainant) is barred by time ?
14. The respondent No.1 & 3 (O.P. No.1 & 3) have filed copy of order sheet dated 15.12.2016 passed by the District Forum in Complaint Case No.74/2016, whereby the learned District Forum, dismissed the complaint of the complainant for non appearance of the complainant i.e. the complaint has been dismissed in default.
15. In the Consumer Protection Act, 1986, the District Forums, have not vested with any power to review, recall their earlier orders and to restore the cases, which // 7 // were dismissed earlier in default. Therefore, the only remedy available to the complainant is to file appeal against the order dated 15.12.2016 or to file fresh consumer complaint.
16. In Rajeev Hitendra Pathak & Others v. Achyut Kashinth Karekar, IV (2011) CPJ 35 (SC) = 2011 (9) SCC 541, Hon'ble Supreme Court observed thus :
"35. We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned Counsel for the parties.
36. On carefully analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex-parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far it has held that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review of recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law."
17. In the case of Bastar Jila Upbhokta Sanrakshan Samiti & Anr. vs. General Manager, District Trade and Industries Centre, Jagdalpur, 2012 (3) CPR 273 (NC), Hon'ble National Commission has observed thus :-
"14. It is settled law (vide Rajeev Hitendra Pathak & Others v. Achyut Kashinath Karekar & Another), (2011) 9 SCC 541 that neither a State Commission nor a District Forum has, under the provisions of the Act, the power to review or recall/modify any order passed by it. Thus, the District Forum has rightly dismissed the application filed by the complainant seeking restoration of her // 8 // complaint dismissed earlier for non-prosecution. The State Commission has also correctly dismissed the appeal against that order."
18. In Manager, Hinduja Leyland Finance Ltd. Vs. Motilal Swain, 2014 (4) CPR 199 (NC), Hon'ble National Commission has observed thus :-
"5. After disposing Revision Petition, Learned State Commission had no authority to review its order in the light of judgment of Hon'ble Apex Court in Rajeev Hitendra Pathak VS. Achyut Kashinath Karekar 2012 (1) CPR 78 (SC)".
19. In State Bank of Patiala Vs. M/s. Jagan Nath Sadhu Ram (Commission Agent), 2015 (2) CPR 570 (NC), Hon'ble National Commission has observed that "Review Petition is not maintainable before State Commission." 20 In Director Versentile Plantation Limited Vs. Sant Ram Agrahari and Anr. 2016 (3) CPR 253 (NC), Hon'ble National Commission has observed that "State Commission cannot review its order."
21. In Jagnnath Prasad Mishra Vs. Regional Manager, LIC and Anr. 2017 (2) CPR 359 (NC), Hon'ble National Commission has observed that " State Commission cannot recall its order."
22. In Global Health Pvt. Ltd. and Anr. Vs. Nisarg Shailesh Shah, 2017 (1) CPR 705 (NC), Hon'ble National Commission has observed that "State Commission does not have power to review or recall its own order."
23. Therefore, the remedy available to the appellant (complainant) is to file appeal against the order dated 15.12.2016 passed by the District Forum in Complaint Case No.74/2016 or to file fresh consumer complaint.
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24. In Indian Machinery Company Vs. M/s. Ansal Housing & Construction Ltd., 2016 (2) CLT 1 = I (2016) CPJ 15 (SC) = (2016) 3 SCC 689= AIR 2016(4) SCW 2209, Hon'ble Supreme Court of India, has observed thus :-
"7. Thus, there is no provision parallel to the provision contained in Order 9(1) CPC which contains a prohibition that if a suit is dismissed in default of the plaintiff under Order 9 Rule 8, a second suit on the same cause of action would not lie. That being so, the rule of prohibition contained in Order 9 Rule 9(1) CPC cannot be extended to the proceedings before the District Forum or State Commission. The fact that the case was not decided on merits and was dismissed in default of non-appearance of the complainant cannot be overlooked and, therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default.
8. We have also not been shown any rule similar to Order IX, Rule 9(1) of the Code of Civil Procedure, 1908. That being so, and in view of the decision rendered by this Court, with which we have no reason to disagree, we are of the opinion that the second complaint filed by the appellant was maintainable on the facts of this case. Under the circumstances, we set aside the order passed by the National Commission and remit the matter to the National Commission for adjudicating the disputes on merits."
25 Looking to the above citation Indian Machinery Company Vs. M/s. Ansal Housing & Construction Ltd. (Supra), the provision of Order 9 Rule 9 of CPC, is not applicable in the instant case and the complainant has right to file second complaint on same cause of action. According to the complainant, the incident of fire was occurred in his shop on 26.02.2016 and the First Information Report was lodged by the complainant in Police Station, Gandai, District Rajnangaon (C.G.) on 27.02.2015. The complainant also sent intimation regarding the incident of fire to the O.P. No.2 (Bank). The complainant has filed copy of letter Ref.
// 10 // No.AH46/Insurance/2015-16 dated 04.08.2016 sent by the O.P. No.2 to the O.P. No.3. Vide above letter, the O.P. No.2 (Bank) had sent the intimation to the O.P. No.3 (Insurance Company) regarding the incident of fire occurred in the shop of the complainant. It appears that the intimation regarding the incident of fire was given by the O.P. No.2 (Bank) to the O.P.No.3, therefore, the cause of action was accrued on 04.08.2015. The complaint filed by the complainant in the year 2016 before the District Forum, which was registered as Complaint Case No.74/2016, which was dismissed in default on 15.12.2016 and the second complaint has been filed on 08.03.2017.
26. Section 14 of The Limitation Act, 1963 runs thus :-
"14. Exclusion of time of proceeding bona fide in court without jurisdiction:- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court, which, from defect of jurisdiction or other cause of a like nature, is unable to entertain.
Explanation - For the purposes of this Section -
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(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted:
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding:
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
27. From bare perusal of provisions of Section 14 of The Limitation Act, 1963, it appears that the time for computing period of limitation, the time during which the former proceeding was pending, shall be excluded. The earlier complaint filed by the complainant was dismissed in default by the District Forum on 15.12.2016 and subsequently instant complaint was filed by the complainant on 08.03.2017. Looking to the order sheet dated 15.12.2016 passed by the District Forum in Complaint Case No.74/2016, it appears that the first complaint filed by the complainant is within limitation and if the time spent by him in prosecuting the first complaint, is excluded, then the second complaint filed by the complainant before the District Forum, is within limitation.
28. Now we shall examine whether the complainant is entitled to get compensation, as prayed by him in the complaint ?
29. According to the complainant, he suffered loss of Rs.3,50,000/-. The Police inspected the place of occurrence of incident of fire and assessed the loss to the tune of Rs.3,50,000/-. The complainant has filed copy of the insurance policy, in which the sum assured is mentioned Rs.70,000/-. Under the above policy, the // 12 // grocery articles are insured. The Policy issued is Dukan Mitra Shopkeeper's Insurance Policy and the sum assured under the above policy is Rs.70,000/-, therefore, the complainant is only entitled to get compensation upto limit of the sum assured i.e. Rs.70,000/-. Merely on the basis of Nuksani Panchnama prepared by the Police, it cannot be held that the complainant is entitled to get a sum of Rs.3,50,000/-. On the basis of the insurance policy, the liability of the insurer is only upto Rs.70,000/- which is sum assured. Therefore, the complainant is only entitled to get Rs.70,000/- from the respondent No.1 & 3 (O.P. No.1 and O.P. No.3), but the appellant (complainant) is not entitled to get any compensation towards mental agony and the respondent No.2 (O.P. No.2), is not liable to pay compensation to the complainant and the respondent No.2 (O.P.No.2), deserves to be exonerated.
30. Therefore, the appeal filed by the appellant (complainant), is allowed against the respondent No.1 & 3 (O.P. No.1 & 3) and the impugned order dated 12.04.2018, is set aside and it is directed that :-
(i) The respondent No.1 & 3 (O.P. No.1 & 3) will jointly and severally pay a sum of Rs.70,000/- (Rupees Seventy Thousand), to the appellant (complainant) within 30 days from the date of this order.
(ii) The respondent No.1 & 3 (O.P. No.1 & 3) will jointly and severally pay interest @ 6% p.a. on Rs.70,000/- from date of filing of the instant complaint i.e. 08.03.2017 till realization.
(iii) The appellant (complainant) is not entitled to get any compensation towards mental agony.
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(iv) The respondent No.1 & 3 (O.P. No.1 & 3) will also jointly and severally pay a sum of Rs.5,000/- (Rupees Five Thousand) towards cost of litigation of this appeal, to the appellant (complainant).
(Justice R.S. Sharma) (D.K. Poddar) (Smt. Ruchi Goel)
President Member Member
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