State Consumer Disputes Redressal Commission
Sanjay Kumar vs The National Insurance Company Limited on 15 July, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.294 of 2009
Date of institution : 09.03.2009
Date of decision : 15.07.2013
Sanjay Kumar Advocate son of Krishan Chander, resident of Shahpur
Chowk, Pathankot, District Gurdaspur.
.......Appellant- Complainant
Versus
1. The National Insurance Company Limited, Near Bus Stand,
Pathankot, District Gurdaspur through its Divisional Manager.
2. The Hindu Cooperative Bank Limited, Dalhousie Road,
Pathankot through its Manager.
......Respondents- Opposite Parties
First Appeal against the order dated
5.11.2008 of the District Consumer Disputes
Redressal Forum, Gurdaspur.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Present:-
For the appellant : Shri S.K. Mahajan, Advocate. For respondent No.1: None.
For respondent No.2 : None.
JUSTICE GURDEV SINGH, PRESIDENT :
The appellant/complainant has preferred the present appeal against the order dated 5.11.2008 passed by District Consumer Disputes Redressal Forum, Gurdaspur (in short "District Forum"), vide which the complaint filed by him under Section 12 of the Consumer First Appeal No.294 of 2009. 2 Protection Act, 1986 (in short "the Act") for issuance of direction to respondent No.1/opposite party No.1 to make a payment of Rs.8,04,300/- towards the loss/damage to poultry sheds, feed and the equipments due to cyclone/natural storm, along with interest and for direction to respondent No.2/opposite party No.2 not to charge any interest on the cash credit limit from the date of loss till the date of realization and a further direction to both the opposite parties to pay Rs.1,50,000/- towards damages for harassment, humiliation, mental agony and torture suffered by him, was dismissed.
2. As per the averments made by the complainant, in the complaint, he had availed loan and cash credit limit for business of poultry farming from opposite party No.2 and constructed poultry sheds in the Village Dadwan, Tehsil Pathankot and started the business of poultry by investing huge funds from his pocket also. He got insured the poultry sheds and the equipments from opposite party No.1 by obtaining cover note/policy dated 14.2.2002 after making the payment of the premium. On 25.5.2002 there was hail/natural storm resulting in the tumbling down and perishing/destroying of the poultry sheds, equipments and live stocks. He gave intimation about the loss to opposite party No.2 and opposite party No.1 was also apprised, who visited the spot and assessed the loss/damage suffered by him. He submitted forms and documents to that opposite party as per the requirement of both the opposite parties and his signatures were obtained on certain blank papers under the garb of the processing of First Appeal No.294 of 2009. 3 claim. The officials of opposite party No.1 asked him to assess the loss and submit the same to it. Thereafter Naresh Kumar Khajuria, Surveyor visited the spot on 6.6.2002 and after physical verification about the loss and damage due to natural storm submitted his report thereby assessing the loss to the tune of Rs.6,04,300/-. He submitted that report to opposite party No.1. The surveyor of that opposite party also visited the spot for assessing the loss. After one week of the visit of their surveyor he was assured that his claim would be furnished in short time. Though he visited opposite party No.1 on a number of times, yet his claim has not been processed in spite of the submission of all the documents; as a result of which, he has been subjected to great mental agony, torture, tension, harassment, humiliation and loss of business and income. In fact, he had informed opposite party No.2 about the loss/damage, vide letter dated 29.5.2002, who further gave intimation to the other opposite party and still it failed to allow his claim. Opposite Party No.2 levied exorbitant interest against the guidelines, rules and regulations of the Reserve Bank of India and even cancelled his cash credit limit in the year 2004 in total violation of the procedure. It had no right to levy exorbitant rate of interest despite the knowledge of the loss/damage suffered by him. He got legal notice dated 5.7.2006 served upon the opposite parties to process and pay the claim of damage/loss but they failed to do so.
3. Opposite party No.1 in its written reply denied the contentions of the complainant and averred that the complainant is an Advocate and First Appeal No.294 of 2009. 4 never engaged himself in the business of poultry farming. No intimation whatsoever was given to it nor any of its official visited the spot. In order to take concession from the Bank, he has coined a false story. Its official never asked the complainant to submit the documents for assessment of the loss nor any surveyor was sent by it for assessing the same. The complainant has no cause of action nor any locus standi to file this complaint, which is hopelessly barred by time. No claim was ever lodged with it by the complainant and he never visited its office. There is no deficiency in service on its part.
4. Opposite party No.2 in its written reply admitted the advancement of the loan and cash credit limit to the complainant for poultry farming and that due intimation as required by the complainant was sent by it to opposite party No.1. It denied the other contentions made in the complaint and averred that the request made by the complainant for the enhancement of the loan limit was agreed to by it. It has no concern with the contract of insurance entered into between the complainant and opposite party No.1. It never levied any exorbitant rate of interest and the same is being charged at the agreed rate. The cash credit limit was cancelled as per the terms and conditions of the agreement of loan and there is no question of any utter violation of the procedure or law. The complaint is barred by limitation and the complainant has no cause of action to file the same. The District Forum has no territorial jurisdiction to entertain and decide the same.
First Appeal No.294 of 2009. 5
5. The parties produced evidence in support of their respective contentions before the District Forum, which after going through the same and hearing learned counsel on their behalf dismissed the complaint, vide aforesaid order, on the ground that the same was hopelessly time barred.
6. We have heard learned counsel for the complainant and have carefully gone through the records of the case.
7. It was submitted by the learned counsel for the complainant that the claim of the complainant was not repudiated by opposite party No.1 and, as such, legal notice dated 5.7.2006 was issued. The cause of action accrued to the complainant from that date and, as such, the complaint is within limitation. It was wrongly concluded by the District Forum that the cause of action had accrued to the complainant on 25.5.2002 when the damage/loss was suffered by him on account of hail/natural storm. He also raised the submission that the cause of action would have accrued to the complainant on the repudiation of the claim by opposite party No.1 and as the claim has not been repudiated, so the complaint is within time.
8. We have not been able to appreciate the contradictory submissions made by the learned counsel for the complainant. If the cause of action was to accrue after the repudiation of the claim itself, which has not been repudiated so far, the complaint is to be held premature. The question to be decided is, as to from which date the period of limitation is to be computed?
First Appeal No.294 of 2009. 6
9. No doubt, it has been averred by the complainant in the complaint that the claim was lodged by him with opposite party No.1 and deposition was also made to that effect in his affidavit but no such document has been proved on the record for proving that any such claim was submitted by him. The notice sent by him to the opposite parties was proved on the record as Ex.C-20. Even in that notice it has not been mentioned as to on which date the claim was so submitted. He proved on record the letter dated 29.5.2002, which was written to opposite party no.1 and vide which it was required to assess the loss caused to the poultry shed as a result of the natural storm on 25.5.2002. The other letter relied upon by him is dated 30.5.2002 Ex.C-12, which was written by opposite party No.2 to opposite party No.1. The letter dated 29.5.2002 was sent by opposite party No.2 to the other opposite party for taking the necessary action and for doing the needful. On account of the omission of the date of submission of the claim in the complaint, affidavit of the complainant and the notice, and in view of the above referred evidence it is to be inferred that it was in the year 2002 itself that the claim was lodged by the complainant with opposite party No.1. That inference is also to be drawn by virtue of the averment made in para no.4 of the complaint. It is stated therein that Naresh Kumar, Surveyor visited the spot on 6.6.2002 and made physical verification for assessing the loss and that the surveyor of opposite party No.1 also visited the spot. If it was so, the complainant was to wait for a reasonable time and in case of non- First Appeal No.294 of 2009. 7 furnishing of that claim by opposite party No.1 he was to approach the District Forum with a complaint under Section 12 of the Act. The above said notice was served by him in the year 2006 after waiting for four years. In the present case, it is to be held that the cause of action had arisen to the complainant in the year 2002 itself, as according to him, the claim submitted by him was not processed by opposite party No.1. He was not to wait for four years and then to serve a notice. He allowed the time to pass and the period prescribed for filing the complaint expired. He did not file any application with the complaint for condoning that delay. A correct finding was recorded by the District Forum that the complaint is hopelessly barred by time and the same is hereby upheld. The appeal is dismissed accordingly. However, no order is made as to costs.
10. The arguments in this case were heard on 10.7.2013 and the order was reserved. Now, the order be communicated to the parties.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH)
PRESIDENT
July 15 , 2013 (BALDEV SINGH SEKHON)
Bansal MEMBER
First Appeal No.294 of 2009. 8