State Consumer Disputes Redressal Commission
Prabhuvan Sindar vs The Oriental Insurance Company Limited on 6 February, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/13/65
Instituted on : 16.01.2013
Prabhuvan Sidar, S/o Shri Shiv Lal Sidar,
R/o : Devari,
Tahsil - Sakti, District - Janjgir Champa (C.G.) ... Appellant.
Vs.
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 : 06/02/2014 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.08/2011, whereby the complaint of the complainant/appellant, has been dismissed as barred by time.
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 Caliber 115 bearing registration No.C.G.-11-BA-2278. The said vehicle was insured with the //2 // O.P./Insurance Company for the period from 06.06.2005 to 05.06.2006 and Policy No. is 152404/31/303/2596/2006/10262. On 28.11.2005, the said vehicle was stolen by someone from Mudhpar Bazar, Manikpur, while it was in locked condition. The matter was reported to the concerned Police Station and First Information Report (FIR) was lodged. The complainant/appellant also intimated the O.P./Insurance Company regarding the incident, as well as R.T.O. On being received the intimation regarding the incident, the respondent/O.P. registered a claim case No.31/2006/155 and initiated proceedings. On 04.12.2006, the O.P./Insurance Company sent information regarding the closure of claim of the complainant/appellant and informed that as complainant/appellant has not produced the Final Report under Section 173 Cr. PC, as well as other documents, therefore, his claim case has been closed. The complainant further averred in the complaint that he received the Final Report under Section 173 Cr.P.C. on 23.07.2009 and requested 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.).
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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) averred that the vehicle was stolen on 28.11.2005, but the intimation regarding theft of the vehicle was not given to the O.P./Insurance Company immediately. The complainant/appellant violated the terms of the insurance policy. The complainant/appellant had not parked the vehicle properly at Mudhpar Bazar, Manikpur. He left the vehicle unattended. There was no lock in the vehicle. The complainant/appellant has not deposited both the keys of the vehicle with the respondent/Insurance Company. Thus, it is clear that the fact of theft of the vehicle, is false or it is also possible that the vehicle was not parked at the secured place by locking the vehicle. Thus, the respondent/Insurance Company, is not liable to pay any compensation to the appellant/complainant as the complainant/respondent has violated the terms of the insurance policy. Thus, the O.P./respondent/Insurance Company has not committed any deficiency in service or unfair trade practice. The complaint of the complainant/appellant was time barred and was liable to be dismissed.
4. Learned District Forum after having considered the material placed before it by both the parties, dismissed the complaint as barred by time.
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5. Shri Mukesh Sharma, learned counsel for the complainant/appellant argued that the matter was reported to OP Manikpur, P.S. Kotwali, District Korba (C.G.) immediately and vehicle was searched here and there, but the vehicle could not be traced. Thereafter the complainant/appellant lodged F.I.R. in OP Manikpur, P.S. Kotwali, District Korba (C.G.) and matter was also informed to R.T.O. Janjgir (C.G.) as well as to the respondent/Insurance Company. On 23.07.2009, the complainant/appellant received khatma report, the complainant/appellant submitted his claim before the respondent/Insurance Company through Development Officer Ramesh Dewangan on 21.09.2009, 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 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.
6. Shri R.N. Pusty, learned counsel for the respondent/Insurance Company submitted that the appellant/complainant lodged F.I.R. on 28.11.2005 at OP Manikpur, P.S. Kotwali, District Korba (C.G.). Shri R.N. Pusty, further submitted that the respondent/Insurance Company has already made order for closure of the claim case of the appellant //5 // /complainant on 04.12.2006, whereas 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.
7. We have heard learned counsel for both the parties at length and have also perused the record of the District Forum.
8. 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 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 //6 // 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."
9. 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 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 //7 // 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."
10. The appellant/complainant filed documents. Document A-1 is copy of First Information Report , document A-2 is bill of Preeetam Auto, document A-3 is Certificate of Registration of vehicle bearing registration No.C.G.11-BA-2278, document A-4 is letter dated 04.12.2006 sent by the Branch Manager, The Oriental Insurance Company Ltd., City Branch Office, Korba (C.G.) to Mr. Prabhuvan Sidar (complainant/appellant), document A-5 is reminder dated 21.09.2006 sent by the Branch Manager, The Oriental Insurance Company Ltd. To Mr. Prabhuwan Sidar (complainant/appellant), document A-6 is Certificate Cum Policy Schedule, document A-7 is acknowledgement of delivery of letter dated 05.10.2010 sent by the Shri Naresh Sevak, Advocate to the Oriental Insurance Co. Ltd. Korba (C.G.), document A-9 is notice sent through Advocate dated 05.10.2010 to the Oriental Insurance Company Ltd., document A-10 is letter dated 21.09.2009 sent by the complainant/appellant to the O.P/respondent/Insurance Company to reconsider his claim case and to pay the amount of compensation, document A-11 is letter sent by the complainant/appellant to R.T.O. Janjgir Champa intimating him //8 // regarding the incident, document A-12 is letter dated 24.07.2007 sent by the Superintendent of Police, Korba (C.G.) to Police Station, Kotwali
11. According to the appellant/complainant the vehicle in question was stolen on 28.11.2005. It is not disputed that the vehicle Bajaj Caliber 115 bearing registration No.C.G.11-BA-2278, 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 28.11.2005 and F.I.R. was lodged on 28.11.2005 itself.
12. Document A-8 is letter dated 04.12.2006 containing information sent by the Insurance Company to the appellant/complainant regarding closure of the claim. In the said letter it is mentioned that the claim file of the complainant/appellant, has been closed because the complainant / appellant has not submitted the following documents :-
(i) Copy of the letter written to R.T.O. (along with acknowledgement) in respect of theft of the vehicle
(ii) Letter of Undertaking,
(iii) Letter of Subrogation,
(iv) Final Investigation Report issued by the Court under Section 173 Cr.P.C.
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13. According to document A-4, the closure report was sent by the respondent/Insurance Company to the appellant/complainant on 04.12.2006 and thereafter appellant/complainant sent a letter to the respondent/Insurance Company on 21.09.2009 (document A-10) i.e. after near about two years and nine months to reconsider his claim case. It appears that the respondent/Insurance Company repudiated the claim of the 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 28.11.2005 and the claim of the complainant/appellant was repudiated by the respondent/Insurance Company on 04.12.2006. The complainant/appellant 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 of his claim and the complainant/appellant filed complaint on 08.04.2011. It appears that the cause of action was arosed on 04.12.2006, therefore, sending legal notice or request letter, does not extend limitation for filing the complaint. The complaint filed by the complainant/appellant is apparently barred by time.
14. 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.
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15. 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
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