State Consumer Disputes Redressal Commission
Vijay Kumar Lahimor vs Manager on 24 January, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/13/64
Instituted on : 16.01.2013
Vijay Kumar Lahimor, S/o Lilaram Lahimor,
R/o : Ward No.14, Sakti,
Tahsil - Sakti, Dist. Janjgir Champa (C.G.) ... Appellant.
Vs.
Manager,
The Oriental Insurance Company Limited.,
Transport Nagar City Branch Office,
District Korba (C.G.) ... Respondent.
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Mukesh Sharma, Advocate, for appellant.
Shri R.N. Pusty, Advocate for respondent.
ORDER
Dated : 24/01/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against order dated 14.12.2012, passed by District Consumer Disputes Redressal Forum, Janjgir Champa (C.G.) (henceforth "District Forum" for short) in Complaint Case No.07/2011, whereby the complaint of the complainant/appellant, has been dismissed.
2. Briefly stated, the facts of the case of the complainant/appellant before the District Forum are that the complainant/appellant is registered owner of vehicle Bajaj C.T. 100 bearing registration No.C.G.- 11-BA-3455. The said vehicle was insured with the O.P/Insurance //2 // Company for the period from 04.07.2005 to 03.07.2006 and Policy No. is 152404/303/2556/31/2006/10337. On 27.06.2006, Syed Abdul Abid, who is friend of the complainant/appellant took the said vehicle and parked it near Peela Mahal, in front of Vicky Electronics shop. Syed Abdul Abid came out of shop at about 7.30 P.M., then he found that the vehicle was not parked where he parked the vehicle and some unknown person had stolen the vehicle. Syed Abdul Abid made complaint before Police Station, Sakti and also sent intimation to R.T.O. Janjgir and respondent/O.P./Insurance Company. The respondent/O.P. registered a claim case No.31/2007/54. On 15.12.2006, the O.P./Insurance Company sent information regarding the closure of claim of the complainant/appellant along with Final Report, which was submitted before the concerned Magistrate on 23.07.2009. Thereafter the complainant/appellant again made an application on 21.09.2009 before the O.P./ Insurance Company for reconsideration of his claim case and to give compensation to the complainant/appellant, but no response was given by the O.P./Insurance Company and thus the O.P./Insurance Company committed deficiency in service. The complainant / appellant filed consumer complaint under Section 12 of the Consumer Protection Act, 1986 before the District Forum, Janjgir Champa (C.G.).
3. The O.P./respondent (Insurance Company) filed it's written version and denied the allegations levelled in the complaint by the complainant/appellant. The O.P./respondent (Insurance Company) //3 // averred that the vehicle was stolen on 27.06.2006 but the intimation regarding theft of the vehicle was given to the R.T.O. Janjgir (C.G.) and Police Station, Sakti (C.G.) on 08.09.2006 and First Information Report (F.I.R.) was lodged on 15.09.2006 after three months of the incident of theft at Police Station, Sakti (C.G.) and also the complainant/appellant informed belatedly to the O.P./respondent (Insurance Company), therefore, the O.P./respondent (Insurance Company) intimated the complainant/appellant regarding closure of his claim case on 15.12.2006. On 15.12.2006, the claim of the complainant/appellant was closed by the Insurance Company, therefore, there is no necessity for the O.P./Insurance Company to again re-open and consider the claim case of the complainant/appellant on the basis of final report submitted by the Police. The complainant/appellant has violated the terms and conditions of the insurance policy and he filed complaint before the District Forum after five years of the incident, which is barred by time, and therefore, the complaint filed by the complainant/appellant, is liable to be dismissed.
4. Shri Mukesh Sharma, learned counsel for the complainant/appellant argued that the matter was reported to Police Station, Sakti (C.G.) immediately and vehicle was search here and there and the vehicle could not be traced. Thereafter the complainant/appellant lodged F.I.R. in Police Station, Sakti (C.G.) and matter was also informed to R.T.O. Janjgir (C.G.) and //4 // respondent/Insurance Company. When Police submitted final report before the competent Court, then the complainant/appellant immediately submitted his claim before the respondent/Insurance Company, but the respondent/Insurance Company has not decided the claim of the complainant/appellant in it's right perspective. Even after submission of final report, the complainant again made request to the respondent/Insurance Company for reconsideration of his claim case, but the respondent/Insurance Company did not respond properly, therefore, the respondent/Insurance Company committed deficiency in service and complainant/appellant is entitled for compensation.
5. Shri R.N. Pusty, learned counsel for the respondent/Insurance Company submitted that the appellant/complainant lodged F.I.R. on 15.09.2006 at Police Station, Sakti (C.G.). There is material contradiction in legal notice sent by the appellant/complainant to the respondent/Insurance Company and the F.I.R. In the legal notice, it is mentioned that vehicle of the appellant/complainant was stolen on 27.06.2006 but in the F.I.R., which was lodged on 15.09.2006, it is mentioned that the vehicle was stolen one and half month prior of lodging F.I.R. Looking to the F.I.R., it appears that the vehicle was stolen between the period of last week of July, 2006 and first week of month of August, 2006, therefore, the claim of the appellant/complainant, is suspicious. Shri R.N. Pusty, further submitted that the respondent/Insurance Company has already made //5 // order for closure of the claim case of the appellant/complainant on 15.12.2006. According to the appellant/complainant, final report was submitted by the Police before the concerned Court in the month of December, 2006 and the appellant/complainant filed consumer complaint on 08.04.2011. It appears that the complaint of the appellant/complainant is hopelessly barred by time, therefore, learned District Forum, has rightly dismissed the complaint of the appellant/complainant and order of the District Forum does not suffer from any illegality or infirmity and does not call for any interference by this Commission.
6. We have heard learned counsel for both the parties at length and have also perused the record of the District Forum.
7. In Kandimalla Raghavaiah And Co. Vs. National Insurance Co. & Anr., (2009) 7 Supreme Court Cases 768, Hon'ble Supreme Court observed thus:
"17. Section 24-A of the Act bars any fora set up under the Act, from admitting a complaint, unless the complaint is filed within two years from the date on which the cause of action has arisen. The provision expressly casts a duty on the Commission, admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen. Recently, in SBI v. B.S.Agriculture Industries (I) this Court, while dealing with the same provision, has held: (SCC p. 125, paras 11-
12) "11. ...It would be seen from the aforesaid provision that it is peremptory in nature and requires the 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 //6 // 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 24-A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within the limitation period prescribed thereunder.
12. 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 24-A 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.
18. The term "cause of action" is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of 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. (See Sidramappa v. Rajashetty.) 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."
8. In H.P.State Forest Co. Ltd. Vs. M/s. United India Insurance Co. Ltd, 2009 AIR SCW 865, Hon'ble Supreme Court observed thus:
"5. It is clear from the record that the timber had been washed away some time in September 1988 and after prolonged correspondence, the respondent ultimately vide its communication dated 13th October, 1988 repudiated the appellant's claim. It is also clear from the counter-affidavit filed by the respondent that the appellant had, vide its letter dated 7th November, 1987, asked for insurance cover for a period of 8 months and that the period of one year fixed in the insurance policy was evidently a typographical mistake which had, in any case, been rectified in the records of the company on 17th December, 1987, that is long before the flood. The claim of the //7 // appellant that the respondent - company had, even after the 13th October, 1988, impliedly admitted its liability under the policy also appears to be incorrect as the surveyors had been appointed on the persistent demand of the claimant / appellant and the premium taken thereafter was only to make good the deficiency in the premium that had been paid for the policy for the period of eight months. It is therefore, apparent that as on the date of the flood, there was no insurance policy in existence or any commitment on behalf of the respondent to make the payment under the policy. We therefore, endorse the argument raised by the respondent that even accepting the case of the appellant at its very best that the period of limitation would be 3 years under Section 44 of the Limitation Act, the complaint would, even then, be beyond time, having been filed in April 1994."
9. The appellant/complainant filed document A-3 i.e. legal notice dated 04.10.2010 sent to the respondent/Insurance Company, A-4 i.e. F.I.R., A-5 Certificate-Cum-Policy-Schedule, A-6 Certificate of Registration of vehicle bearing No.C.G.11-BA-3455, A-7 Certificate-Cum- Policy-Schedule, A-8 letter sent by the respondent/Insurance Company to the appellant/complainant on 15.12.2006 regarding closure of the claim case of the appellant/complainant, A-9 is letter sent by the appellant/complainant to the Branch Manager, Oriental Insurance Company Ltd, Korba (C.G) on 21.09.2009. Another letter dated 08.09.2006 sent by the appellant/complainant to R.T.O, Janjgir-Champa (C.G.) is A-10. A-13 is intimation sent to Syed Abid by Police Station, Sakti, District Janjgir - Champa (C.G.) regarding final report, A-14 is Final Report under Section 173 Cr. P.C.
10. According to the appellant/complainant the vehicle in question was stolen on 27.06.2006. It is not disputed that the vehicle Bajaj C.T. 100 //8 // bearing registration No.C.G.11-BA-3455 is recorded in the name of the appellant/complainant and the appellant/complainant is registered owner of the said vehicle. According to the appellant/complainant, the incident of theft was took place on 27.06.2006 and F.I.R. was lodged on 15.09.2006 i.e. after near about 3 months. In the F.I.R. it is mentioned that the incident took place prior to one and half month of lodging F.I.R. and in the legal notice dated 04.10.2010 (document A-3) sent by the appellant/complainant to the respondent/Insurance Company, the date of incident is mentioned as 27.06.2006. There is material contradiction regarding the date of incident in the F.I.R. and in the complaint itself.
11. Document A-8 is letter dated 15.12.2006 containing information sent by the Insurance Company to the appellant/complainant regarding closure of claim. In the said letter it is mentioned that "iathd`r i= nsus ds i'pkr~ Hkh vkids }kjk fuEu dkxtkr tek ugha fd;s x;s& ¼1½ ysVj vkWQ vaMjVsfdax ¼2½ ysVj vkWQ lcjksxs'ku ¼3½ xkM+h dh nksuksa pkfc;ka ¼4½ dksVZ }kjk tkjh ,oa Lohd`r /kkjk&173 Cr.PC ds rgr tkjh vafre tkap fjiksVZA mijksDr ds vHkko esa ge nkok fuiVkus esa vleFkZ gSA vr% mDr nkok izdj.k can le>sAa "
12. According to document A-8, the closure report was sent to the appellant/complainant on 15.12.2006 and thereafter he sent a letter to the respondent/Insurance Company on 21.09.2009 (document A-9) i.e. after near about two years and nine months. It appears that the respondent/Insurance Company repudiated the claim of the //9 // appellant/complainant in the month of December, 2006 and the complaint was filed on 08.04.2011 i.e. after two years. In the instant case, the incident of theft took place on 27.06.2006 and the claim of the complainant/appellant was repudiated by the respondent/Insurance Company on 15.12.2006 and the complainant/appellant again made an application before the respondent/Insurance Company for reconsideration of his claim case on 21.09.2009 i.e. after two years from the date of repudiation and the complainant/appellant filed complaint on 08.04.2011. It appears that the cause of action was arosed on 15.12.2006, therefore, sending legal notice , does not extend limitation for filing the complaint. The complaint filed by the complainant/appellant is apparently barred by time.
13. Therefore, the District Forum, has rightly recorded the finding that complaint of the complainant/appellant is barred by time, hence, the order passed by the District Forum does not suffer from any infirmity or illegality and does not call for any interference by this Commission.
14. Therefore, the appeal filed by the appellant / complainant being devoid of any merit, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S.Sharma) (Ms.Heena Thakkar)
President Member
/01/2014 /01/2014