State Consumer Disputes Redressal Commission
Suresh Km.Gupta vs Manager, New India Assurance Co. & Ors. on 16 January, 2009
APPEAL NO: 2208/2003
Suresh
Kumar Gupta, Nai Dhan Mandi, Kota
now
M/s, Kundanlal Kishorilal Buswale, Shardulshahar.
Complainant-appellant
Vs.
1. Manager,
New India Assurance Co.Ltd.,Kota.
2. Manager,
Bank of India Ltd.,Industrial Area, Kota.
Opposite parties-respondents
16.1.09
Before:
Mr.Justice
Sunil Kumar Garg-President
Mrs.Vimla
Sethia-Member
Mr.Rajesh Maharshi counsel for the appellant Mr.Rajeev Sharma counsel for respondent no.1 None for respondent no.2 This appeal has been filed by the complainant appellant against order dated 22.10.03 passed by the District Forum, Kota in complaint no. 249/2002 by which the complaint of the complainant appellant was dismissed on the ground that the complaint was filed with delay and further necessary papers were not submitted by the complainant appellant before the office of respondent no.1.
22. It arises in the following circumstances-
That the complainant appellant had filed a complaint against the respondents before the District Forum, Kota on 4.5.02 inter alia stating that his truck bearing no. RRO 991 was got insured with the respondent no.1 Insurance Co. for the period 11.8.92 to 10.8.93 for a sum of Rs.1,50,000/-. It was further stated in the complaint that on 3.6.93 while the truck in question was on the road of Pathankot (Punjab ), it had caught fire as a result of which it was damaged and the report was lodged with the Police Station Sujangarh on 3.6.93 and information was also given to the office of respondent no.1 Insurance Co. It was further stated that through letter dated 17.10.94 the complainant was informed by respondent no.1 that the claim could be settled for a sum of Rs.1,00,875/- but that amount was not found acceptable and further the complainant appellant was asked to perform some formalities. It was further stated that since the truck in question was purchased after taking loan from respondent no.2 the bank and since the truck in question was hypothicated with respondent no.2 therefore, respondent no.2 had filed a civil suit against the appellant bearing suit no. 20/94 and that suit was decreed in favour of the bank by the Addl.District Judge no.3, Kota through decree dated 18.3.02. It was further stated that when the matter was enquired by the complainant from respondent no.1, the Insurance Co., the respondent no.1 had informed that the amount in question would be deposited with the bank as that amount was being demanded by the bank and on file there is a letter dated 17.8.01 to that effect. It was further stated that the said amount was not deposited by respondent no.1 to the 3 office of the bank and thereafter the matter was persued by the complainant with respondent no.1 and the respondent no.1 had informed the complainant through letter dated 28.3.02 that since the claim of the complainant appellant had been declared ' no claim ' through letter dated 14.3.95 and since the complainant had not performed the necessary formalities earlier and therefore, the amount was not payable as the claim had already been made ' no claim ' earlier. Thereafter the present complaint was filed.
A reply was filed by respondent no.1, the Insurance Co. on 27.11.02 and in the reply it was stated that since the claim had been declared ' no claim ' through letter dated 31.3.95 and since the complaint had been filed on 4.5.02, therefore, it was time barred and it was prayed that complaint be dismissed.
A reply was also filed by respondent no.2 on 27.11.02 and it was stated in the reply that the suit of the bank had already been decreed in favour of the bank through judgment dated 18.3.02 and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum,Kota through impugned order dated 22.10.03 had found the claim of the complainant appellant as time barred because of the reason that since the claim had been repudiated by the respondent no.1 Insurance Co. through letter dated 14.3.95 and since the complaint had been filed on 4.5.02, therefore, the complaint was certainly time barred.
4Aggrieved from the said order dated 22.10.03 passed by the District Forum, Kota, this appeal has been filed by the appellant.
3. In this appeal the main contention of the learned counsel for the complainant appellant is that findings recorded by the District Forum by which claim was treated as time barred could not be sustained as the period of limitation would start from the letter dated 28.3.02 on which the claim was declared as ' no claim ' and not from the letter dated 14.3.95 and since the complaint had been filed on 4.5.02, therefore, the complaint had been filed within two years from 28.3.02 and the complaint was within limitation and the District Forum had committed serious error and illegality in dismissing the claim of the complainant appellant as time barred . Hence, the impugned order could not be sustained and liable to be quashed and set aside and this appeal be allowed.
4. On the other hand the learned counsel appearing for the respondent no.1 has supported the impuned order passed by the District Forum.
5. We have heard the learned counsel appearing for the appellants as well as for the respondent no.1 and gone through the entire materials available on record.
6. There is no dispute on the point that incident had taken place on 3.6.93 and the vehicle in question was insured with the respondent no.1 Insurance Co. for the period 11.8.92 to 10.8.93 for a sum of Rs.1,50,000/-.
7. There is also no dispute on the point that through letter 5 dated 17.10.94 the respondent no.1 Insurance Co. demanded some documents from the complainant appellant.
Note- The letter dated 17.10.94 had been produced by the respondent no.1 Insurance Co. before this Commission and the same is not available with the record.
8. There is no dispute on the point that through letter dated 14.3.95 the respondent no.1 Insurance Co. had further asked the complainant appellant to furnish some papers so that his file could remain open.
9. Thus, from the above two letters dated 17.10.94 and 14.3.95 it could not be said that the claim of the complainant appellant was repudiated finally.
10. A bare perusal of letter dated 28.3.02 of the respondent no.1 Insurance Co. reveals the following facts-
(i) That the claim of the complainant appellant was settled for a sum of Rs.1,00,875/- on total loss basis and that could only be possible if some papers were to be executed by the complainant appellant and they were not executed by the complainant appellant.
(ii) That the claim of the complainant appellant was treated as ' no claim ' through letter dated 31.3.95.
11. In this case the learned counsel for the complainant appellant has further argued that the period of limitation would accrue from the letter dated 28.3.02 while the case of the learned 6 counsel for the respondent no.1 Insurance Co. is that this letter was issued in respect to the notice and since the claim had already been treated as ' no claim ' through letter dated 31.3.95, therefore, the complaint was time barred.
12. On file we see no letter dated 31.3.95 by which claim was treated as ' no claim ' and we find the reference of letter dated 28.3.02 in respect of letters dated 14.3.95 and 31.3.95 and as stated above in letters dated 17.10.94 and 14.3.95 claim was not finally repudiated and further in letter dated 28.3.02 we find the reference that earlier the claim was settled for a sum of Rs.1,00,875/-, therefore, this Commission is of the view that period of limitation would start in the present case from the letter dated 28.3.02 and not from letter dated 31.3.95 and since the complaint was filed on 4.5.02, therefore, the complaint should have been treated within limitation.
13. For the reasons stated above, the findings of the District Forum dismissing the claim of the complainant appellant on ground of limitation could not be sustained as they suffer suffer from basic infirmity, illegality and perversity and the impugned order is liable to be quashed and set aside and hence, the appeal filed by the appellant deserves to be allowed.
On point of compensation
14. In this case since the respondent no.1 Insurance Co. in letter dated 28.3.02 had made a reference that earlier the claim was settled for a sum of Rs.1,00,875/-, therefore, in our considered opinion, respondent no.1 Insurance Co. would pay a sum of Rs. 1,00,875/- to the complainant appellant alongwith interest @ 9% 7 p.a. from the date of filing of the complaint till the payment is made.
Accordingly, the appeal filed by the appellant is allowed and the impugned order dated 22.10.03 passed by the District Forum, Kota is quashed and set aside and the complaint of the complainant appellant is allowed in the manner that the respondent no.1, the Insurance Co. would pay a sum of Rs. 1,00,875/- to the complainant appellant alongwith interest @ 9% p.a. from the date of filing of the complaint till the payment is made and would further pay a sum of Rs.5000/- as costs to the complainant appellant.
Member President