State Consumer Disputes Redressal Commission
The United India Insurance Co Ltd vs Shri Japjeet Singh Chadda & Anr. on 14 March, 2012
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
First Appeal No. A/10/363
(Arisen out of Order Dated 16/12/2009 in Case
No. 308/2006 of District DCF, South Mumbai)
1. THE UNITED INDIA
INSURANCE CO LTD
CMBATTA BUILDING, 3 RD FLOOR, M K ROAD, CHURCHGATE, MUMBAI 400
020.
...........Appellant(s)
Versus
1. SHRI JAPJEET SINGH
CHADDA
22nd DILIP
NIVAS,DD SATHE MARG,OPERA HOUSE,MUMBAI 400004
2. SRIVATSAN
SURVEYORS PVT. LTD.,
THROUGH UNITED INDIA
INSURANCE CO. LTD., CAMBATTA
BUILDING, 3RD
FLOOR, M. K. ROAD,
CHURCHGATE, MUMBAI 400 020.
...........Respondent(s)
BEFORE:
Hon'ble Mr. P.N. Kashalkar
PRESIDING MEMBER
Hon'ble Mr. Dhanraj Khamatkar Member PRESENT:
Mr. A. S. VIDYARTHI , Advocate for the Appellant Ms.Rashmi Manne, Advocate, for Mr. U. B. Wavikar, Advocate for the Respondent 1 ORAL ORDER Per Shri P.N. Kashalkar, Honble Presiding Judicial Member This is an appeal filed by the Insurance Company against the judgement and award passed by District Consumer Disputes Redressal Forum, South Mumbai in consumer complaint No.308/2006 decided on 16/12/2009.
By allowing the complaint filed by the respondent-Shri Japjeet Singh Chadda. The District Consumer Disputes Redressal Forum directed the Insurance Company/opponent No.1 to pay a sum of `4,14,608/-
towards insurance claim with interest @ 9% p.a. from 29/03/2004 and also directed to pay `2,000/-
towards mental harassment and `1,000/-
towards costs and this order was directed to be complied with within 45 days from the receipt of order.
Aggrieved by this order, Insurance Company has filed this appeal.
2. The facts in nutshell are that the respondent is in business of importing and selling the electronics goods. He is a proprietor of Singson Overseas Company having its shop at 22, Dilip Niwas, D.D. Sathe Marg, Opera House, Girgaon, Mumbai. He had taken from the appellant/Insurance Company a burglary policy to insure the shop and goods stored therein styled as Burglary & Housebreaking Policy. He had paid premium and policy was in force 03/12/2002 to 02/12/2003. The assured sum of indemnity was mentioned as `6 Lakhs. It so happened in the night of 20/01/2003 & 21/01/2003 some thieves burgled the shop of the complainant, they entered in the shop by removing AC unit and then committed theft of various electronics items worth `6 Lakhs which included various mobile phones of various companies. On 21/01/2003 when this burglary came to the notice of complainant, he immediately lodged F.I.R. in D.B. Marg Police Station, Mumbai. On the basis of which police registered a Crime No.18/2003 under Section 454, 457 & 380 of I.P.C. The complainant also lodged insurance claim with the Insurance Company.
Insurance Company appointed Srivatsan Surveyors Pvt. Ltd. as Surveyor. The Surveyor conducted the survey. After receipt of survey report, the Insurance Company was pleased to repudiate the claim presented by the complainant and on repudiation, the complainant knocked the doors of District Consumer Disputes Redressal Forum, South Mumbai by filing consumer complaint and claimed amount of `6 Lakhs under the policy along with some other reliefs.
3. The opponent filed written version and contested the complaint.
According to the opponent, the complaint as filed by the complainant is absolutely false and frivolous.
The complaint was not filed within the limitation. There was no proof adduced by the complainant to prove that there was actually burglary committed by the thieves. The Insurance Company pleaded that Surveyor had made detailed survey and inspected the shop of the complainant and came to the conclusion that there was no theft in the shop of the complainant. Moreover, entry taken by the thieves could not be styled as burglary. Therefore, Surveyor recommended that claim should be repudiated. Acting upon the recommendation made by the Surveyor, the Insurance Company pleaded that it had rightly repudiated the claim by sending repudiation letter. The Insurance Company also pleaded that in the F.I.R. the value of the goods lost mentioned is `4,50,000/- whereas the complainant has claiming `6 Lakhs. The Insurance Company therefore pleaded that complaint should be dismissed with costs.
4. The District Consumer Disputes Redressal Forum however, on the basis of documents and affidavits placed on record held that there was burglary and claim was not repudiated by the Insurance Company on the sound grounds and therefore, it held the Insurance Company guilty of deficiency in service and passed the award against the Insurance Company.
Aggrieved by the award, Insurance Company has filed this appeal.
5. We heard Mr.A.S. Vidyarthi, Advocate for the appellant/Insurance Company and Ms.Rashmi Manne, Advocate for the respondent/org. complainant.
6. We are finding that the consumer complaint as filed by the respondent is barred by limitation and this point was raised before the District Consumer Disputes Redressal Forum, but it was not properly answered by the District Consumer Disputes Redressal Forum. The claim was repudiated by the Insurance Company by letter dated 29/03/2004 signed by Mr.R.M. Damle, Divisional Manager. He has listed so many points what prompted him to repudiate the claim presented by the complainant. Since, repudiation letter is dated 29/03/2004, the complaint ought to have been filed on or before 28/03/2006 but the complaint came to be filed on 16/06/2006 much after two years were over since the date of repudiation letter and when the complaint was filed it was not accompanied with any condonation of delay application. The District Consumer Disputes Redressal Forum at the time of admission of complaint should have held that the complaint as filed by the complainant was absolutely barred by limitation.
7. That apart, it was tried to be contended by Advocate Ms.Manne for the respondent/complainant that after the repudiation letter dated 29/03/2004, on 28/12/2004 the Insurance Company by letter from the Department of Grievance Cell informed the complainant that they were in receipt of letter dated 17/12/2004 under Grievance Cell and the claim file will be reviewed and he will be hearing from them very shortly. This letter was sent by the Consumer Grievance Cell Department of Insurance Company. This is a standard letter sent to everybody if any letter containing grievance against the working of Insurance Company is made to the Consumer Grievance Department of the Insurance Company. This letter in no way assured the complainant to review the repudiation letter they had already sent on 29/03/2004. So, this letter dated 28/12/2004 cannot be pressed into service to contend that by this letter, period of limitation is extended and from 28/12/2004 within two years complainant had filed consumer complaint. This argument is devoid of any substance. Limitation starts on the date of accrual of cause of action and accrual of action is the day on which burglary took place at the shop of the complainant. The burglary took place on 21/01/2003. From that date within two years i.e. on or before 20/01/2005 the consumer complaint should have been filed in terms of ratio laid down by the Supreme Court in the case of Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd. , III (2009) CPJ 75 (SC). So, from the date of accrual of cause of action within two years this complaint has not been filed. Secondly, it must be filed within two years from date of repudiation of the claim by the Insurance Company i.e. on or before 28/0/3/2006 but, the complaint came to be filed on 16/06/2006. So, on these two grounds, it must be held that complaint as filed by the respondent in the District Consumer Disputes Redressal Forum was absolutely barred by limitation and on that ground complaint ought to have been dismissed by the District Consumer Disputes Redressal Forum.
8. That apart, another aspect of the matter is that, in the policy, there is a specific clause (which is at page-88 of appeal compilation), regarding period of limitation available in case the Insurance Company repudiates the claim. Said clause reads as under :-
It is also hereby expressly agreed and declared that if the Company shall disclaim liability to the Insured for any claim hereinunder, and such claim shall not within 12 calendar months from the date of such disclaimer have been made the subject matter of a suit in a court of law, then the claim shall for all purpose be deemed to have been abandoned and shall not thereafter be recoverable hereunder.
In terms of this clause, the consumer complaint ought to have been filed within one year from the date of repudiation i.e. from 29/03/2004. So, it should have been filed on or before 28/03/2005. This disclaimer clause was a matter of judicial review by the Supreme Court in the case of H.P. State Forest Company Ltd. V/s. United India Insurance Co. Ltd., 1(2009)CPJ 1 (SC). The Honble Supreme Court clearly laid down that if the claim is not pressed within 12 months from the date of loss, the Insurance Company would cease to be liable. No claim/arbitration proceeding made during the prescribed period of one year. So, the insurer was not liable under the policy. Insured was not entitled to get any relief in the circumstances. In Para 10 of this judgement, same condition (as found in our policy) was incorporated by the Insurance Company and so, the Supreme Court clearly held that in view of said clause, action should have been filed within one year from the date of repudiation and since, it was not filed, the insured was not entitled to get any relief. This ratio is clearly applicable to our case in hand and relying on the disclaimer clause as found in favour of the Insurance Company, we hold that even on this ground also the consumer complaint as filed could not have been decreed at all.
9. For all these reasons stated above, we hold that the consumer complaint as allowed by the District Consumer Disputes Redressal Forum by passing the award is erroneous, bad in law and it cannot be allowed to sustain in law and therefore, by allowing this appeal, same will have to be quashed and set aside. Hence, we pass the following order :-
-: ORDER :-
1.
Appeal is allowed.
The impugned order dated 16/12/2009 is quashed and set aside. In the result, consumer complaint No.308/2006 stands dismissed.
2. Parties to left their own costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 14th March 2012.
[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mr. Dhanraj Khamatkar] Member dd