State Consumer Disputes Redressal Commission
Sago Packaging Pvt. Ltd. vs The Senior Divisional Manager, The New ... on 1 April, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/1352/2013 (Arisen out of Order Dated 25/11/2013 in Case No. CC/160/2011 of District Kolkata-II) 1. Sago Packaging Pvt. Ltd. Represented by its Managing Director, Mr. Satyabrata Choudhury, 106/C, Raja Dinandra Street, P.S. Burtalla, Kolkata - 700 004. ...........Appellant(s) Versus 1. The Senior Divisional Manager, The New India Assurance Co. Ltd. Division No.5128000, 11, Prafulla Sarkar Street, P.S. Bowbazar, Kolkata - 700 072. 2. The State Bank of India Lake Town Br., P-871, Block -"A", Kolkata - 700 089. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: Mr. Ashis Chakraborty, Advocate For the Respondent: Mr. N. R. Mukherjee., Advocate ORDER
Date: 01-04-2015 Sri Debasis Bhattacharya This appeal is directed against the Order dated 25-11-2013 in C.C. No. 160/2011, passed by the Ld. District Forum, Unit-II, Kolkata, whereby the instant case has been dismissed on contest. Being aggrieved by and dissatisfied with the same, the Complainant thereof has preferred this appeal.
Case of the Complainant, very briefly, is that they intimated the OP Insurance Company vide letter dated 30-08-2006 about happening of a theft/burglary of company assets that took place in their factory on the very same day. On the basis of such information, a Surveyor inspected the factory and prepared a list of stolen articles and its value in his own handwriting. Besides, the matter was also reported to Barasat P.S. and on the basis of their complaint, a case being no. 697/2006 was started on 30-08-2006, u/s 461/379, IPC. Police have filed FRT before the Ld. CJM, Barasat on 30-09-2006. Thereafter, the Complainant made several requests to the OP for settling the claim, but no fruitful result came out. Being frustrated, the Complainant sent a letter on 28-08-2009 to the OP Insurance Company with a request to take all possible action for settlement of claim of loss at the earliest. As they did not receive any positive reply from the side of the OP Insurance Company, they sent a legal notice on 09-05-2011, but to no avail. So, finding no other alternative, the Complainant filed the instant complaint case before the Ld. District Forum.
OP No. 1 contested the case by filing W.V. whereby they stated that they repudiated the claim of the Complainant vide letter dated 15-03-2007. Thereafter no valid communication has been made from the end of the Insurance Company. The instant case was filed in the year 2011 though it should have been filed within two years from the date of repudiation, i.e., on or before 15-03-2009. Therefore, the instant complaint petition is barred by limitation as per section 24A of the Consumer Protection Act, 1986. The Surveyor, in his report, specifically stated that the alleged burglary was committed since the miscreants entered the factory premises through a gap created for installation of exhaust fan and they scaled with the help of a ladder set on the northern side of the factory and at the time of leaving the factory premises and after completion of their operation, the miscreants broke the padlock from inside the factory. The said survey report specifically stated that there was no forcible entry in respect of the incident and hence, such incident does not come within the purview of the policy condition and therefore, the claim is inadmissible. The Complainant never furnished the required documents as asked for and the Surveyor, deputed by the Insurance Company did not get any opportunity to make any assessment regarding the quantum of loss.
Point to be considered in this appeal is whether the impugned order is tenable from legal and factual aspects of the case, or not.
Decision with reasons Ld. Advocate for the Appellant has submitted that a theft/burglary took place in their factory premises on 30-08-2006 and due intimation to this effect was communicated to the Insurance Company as well as the local Police Station on the very same day. Although a Surveyor was deployed by the Respondent to investigate the matter, who during his visit to the factory premises, noted down details of stolen items and submitted a report to the Insurer, the latter has not yet settled their legitimate claim. By the FRT filed by the Police in the Ld. Court of CJM, Barasat, they reported the matter of theft/burglary as true. Although they regularly followed up the matter with the Insurance Company - by personally visiting the office of the OP Insurance Company as well as through written letters, the Insurance Company, seemingly unmoved, did not bother to even respond to their repeated communiqués, let alone settle their legitimate claim. So, finding no other alternative, the instant complaint case was filed before the Ld. District Forum. However, the Ld. District Forum, dismissed the complaint case on the ground that the case was barred by limitation though fact remains that cause of action arose when the Appellant lodged its bona fide theft/burglary Insurance Claim on 30-08-2006, followed by reminder dated 28-08-2009 and legal notice dated 09-05-2011. As the cause of action was a continuous one, as such, the instant complaint case is not barred by Law of Limitation and Consumer Protection Act, 1986. As such, for ends of justice, the impugned order be set aside, else they would be highly prejudiced. In support of his contention, the Ld. Advocate has referred to four decisions of the Hon'ble National Commission, reported in I (2010) CPJ 22 (NC), III (2011) CPJ 196 (NC, II (2014) CPJ 271 (NC), II (2014) CPJ 65 (NC), and two decisions of this Commission in F.A. Nos. 379/2010 and 704/2010.
Ld. Advocate for the Respondent No. 1, on the other hand, has submitted that they repudiated the claim on 15-03-2007 itself on the basis of the report of the Surveyor who opined that he did not find any trace of forcible entry of miscreants as alleged by the Appellant. In fact, it transpires from the said report that some miscreants entered the factory premises through a gap created for installation of exhaust fan and they scaled with the help of a ladder set on the northern side of the factory and at the time of leaving the factory premises and after completion of their operation, the miscreants broke the padlock from inside the factory. Since the incident was beyond the purview of policy terms and conditions, they rightly repudiated the claim and intimated the matter to the Appellant in writing. Since then no valid communication has been made from the side of the Insurance Company. Since the claim was repudiated on 15-03-2007, the Appellant should have lodged the case on or before 15-03-2009, but they filed the instant case on 19-07-2011, i.e., after a gap of more than four years. So, the instant complaint case has been very rightly dismissed by the Ld. District Forum, which be upheld. In his defense, the Ld. Advocate has referred to a decision of the Hon'ble National Commission reported in III (1996) CPJ 41 (NC) and another decision of the State Commission, Delhi, reported in I (1996) CPJ 109.
Proceedings under every Act are guided by the inherent provisions of that particular Act. Likewise, the instant complaint petition moved by the Appellant is guided by the provisions of the Consumer Protection Act, 1986. One of the key features of this Act is that cases are to be invariably filed within a period of two years from the date of occurrence of cause of action. Section 24(A)(2) of the Act notwithstanding empowers a District Forum/State Commission/National Commission to entertain a complaint after the above specified period, but a string is attached to this provision, i.e., this can only be done provided the petitioner satisfies that he had "sufficient cause" for not filing the complaint within such period. Therefore, whenever a case is filed after the specified period, the first and foremost consideration it invites is whether or not 'sufficient cause' has been assigned behind such belated filing of the case. Needless to say, if the assigned cause(s) failed to pass muster the judicious consideration of the concerned Forum/Commission, the journey ended there itself. Also important to note that whenever a case is filed after the expiry of specified limitation period, a delay condonation petition, accounting for every single day delay, must accompany the petition of complaint.
In the instant case, however, no such delay condonation petition has been filed by the Appellant before the Ld. District Forum out of their misplaced notion that with every fresh representation/persuasion/follow-up of the matter by them with the Respondent, the limitation period kept on lingering. In this regard, the decision of State Commission, Delhi, referred to by the Ld. Advocate for the Respondent No. 1 is worth mentioning wherein the Hon'ble Commission has held that 'making a representation to the Insurance Company and following up that representation does not tantamount to prosecuting one's remedy before a statutory body constituted by law. Making such representation cannot stop limitation from running.' In the instant complaint case, no cause, nay sufficient cause being placed behind delayed filing of the case before the Ld. District Forum by the Appellant, the instant case has rightly been dismissed by the Ld. District Forum.
Looking at it from another perspective, we find that in between the period from 15-03-2007 (date of repudiation of claim) to 19-07-2011 (date of filing the case before the Ld. District Forum), the Appellant only sent two missives - one a reminder letter on 28-08-2009 and a legal notice on 09-05-2011. To whatever extent we stretch our imagination, it does not speak high of the sincerity of purpose on the part of the Appellant. In fact, the manner in which Appellant has pursued his claim also raises serious doubt about his intent to get the claim settled. From the Survey Report, it transpires that the Appellant did not furnish any paper in support of his claim because of which, he could not assess the loss. On going through the petition of complaint, we find that no explanation is given therein as to why they did not render requisite documents to the Surveyor. Also important to note that the Appellant quite conspicuously refrained from disclosing the fact that the Respondent repudiated their claim long before filing of the instant case and tried to create an impression that the Insurance Company kept the matter of settlement in abeyance. It is always desirable that one, who wants justice, be candid enough to place on record every factual aspect of a dispute to enable an Adjudicator arrive at a just decision.
In any case, it is the settled position of law that delay cannot be condoned as per the whims and fancies of a party to a case. Unless sufficient/cogent ground is shown, such a prayer stands merit outright rejection at the very threshold as has been done by the Ld. District Forum. Therefore, the Ld. District Forum, by dismissing the instant complaint petition, has not done any wrong. From both legal and factual aspects, the impugned order is perfect in nature and therefore, we do not see any scope, rather any compelling reason to interfere with the same.
In the result, the instant appeal fails.
Hence, ORDERED that the appeal be and the same is dismissed on contest against the Respondent No. 1 and ex parte against the Respondent No. 2, but without any order as to costs. The impugned order is hereby affirmed. [HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER