National Consumer Disputes Redressal
Babubhai Bhagvanji Tandel vs New India Assurance Company Ltd. on 19 August, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 516 OF 2012 (Against the Order dated 12/06/2012 in Complaint No. 83/2004 of the State Commission Maharashtra) 1. BABUBHAI BHAGVANJI TANDEL ADD: Ghaduchi Street, Valsad, Tal.: Valsad. Dist.: Valsad. Gujarat ...........Appellant(s) Versus 1. NEW INDIA ASSURANCE COMPANY LTD. Registered and Head Office at : New India Assurance Building, 87- M.G. Road, Fort, Mumbai-1 Maharashtra ...........Respondent(s)
BEFORE: HON'BLE MR. ANUP K THAKUR,PRESIDING MEMBER
For the Appellant : For the Appellant : Mr.Varshal M. Pancholi, Advocate For the Respondent : For the Respondent : Mr. Vishnu Mehra, Advocate
Dated : 19 Aug 2020 ORDER
Anup K. Thakur
1. This First Appeal No.516 of 2012 challenges the impugned order dated 12.06.2012 of the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai in C.C. No.04/83 filed by the appellant/complainant. Vide this order, the State Commission had dismissed the same.
2. Very briefly, facts of this case are that a cargo vessel M.S.V. Ganga Prasad, belonging to the appellant/complainant (hereafter, complainant) sank on 29.12.1999. The vessel was insured and the insurance was effective on the date the vehicle sank. The insurance claim filed was repudiated, finally, after considering a letter of explanation submitted by the complainant in response to the first letter of repudiation dated 21.10.2003, by letter dated 24.2.2004. Challenging this repudiation, the consumer complaint was filed on 26.7.2004. This was dismissed vide the impugned order, relevant portion of which is as below:-
"Normally, the claim ought to have been sanctioned under these circumstances. However, this consumer complaint is filed beyond the period of two years from the date of sinking of the vessel i.e. when the cause of action arose and that too without any application for condonation of delay. Therefore, in view of the decision of the apex court in the case of Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd., III (2009) CPJ 75 (SC), this consumer complaint cannot be entertained. We heard both the parties categorically referring to this aspect but the complainant failed to satisfy us on the point of limitation and on behalf of the Insurance Company it is pressed that the consumer complaint cannot be entertained by the consumer forum since barred by limitation. We accept such contention of the Insurance Company.
For the reasons stated above, we hold accordingly and pass the following order:-
ORDER Consumer complaint stands dismissed."
3. It is clear that the only issue before the National Commission is whether the State Commission had erred in dismissing the consumer complaint on the ground that it was filed well beyond two years from the date of sinking of the vessel when cause of action arose and that too without any application for condonation of delay. The argument of the appellant/complainant was that the claim was repudiated on 24.02.2004 and the cause of action began on that date. From this date, the complaint was filed within two years and was well within limitation. Therefore, the issue at hand is when the cause of action arose on the date of sinking or the date of repudiation of the insurance claim.
4. It is seen from the impugned order that the State Commission has relied upon the decision of the Apex Court in the case of Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd., III (2009) CPJ 75 (SC).
5. From the facts of the case and upon a careful perusal of the judgment of the Hon'ble Supreme Court in the case of Kandimalla Raghavaiah (Supra), it is clear that the appellant has no case in so far as it is arguing that the cause of action should be taken on the date of repudiation and not from the date of sinking of the vessel.
6. In this regard, it is worthwhile reproducing relevant paras, 18 and 22, from the order of Hon'ble Supreme Court in the case of Kandimalla Raghavaiah (Supra):
"18. The term "cause of action" is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide 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 Vs.Rajashetty & Ors.4). 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.
:
:
22. It is, therefore, clear from the aforenoted correspondence between the appellant and the Insurance Company that cause of action in respect of the special insurance policy arose on 22-3-1988/23-3-1988, when fire in the godown took place damaging the tobacco stocks hypothecated with the Bank in whose account the policy had been taken by the appellant. Thus, the limitation for the purpose of Section 24A of the Act began to run from 23-3-1988 and therefore, the complaint before the Commission against the Insurance Company for deficiency in service, whether for non-issue of claim forms or for not processing the claim under the policy, ought to have been filed within two years thereof. As noticed above, the complaint was in fact filed on or after 24-10-1997, which was clearly barred by time."
7. It is abundantly clear from a plain reading of these two paragraphs that as per the principle very clearly laid down by the Apex court, the cause of action, in the instant case, arose on the date the vessel sank and not on the date when the claim was repudiated, which was after almost five years.
8. It is also a reasonable proposition that if an insurance claim has been filed and if it continues to be delayed at the hands of the insurance company, the complainant would ordinarily take recourse to courts of law sooner rather than later, mindful of the period of limitation. It is therefore not clear at all as to why the appellant/complainant herein waited for the claim to be repudiated, first on 21.10.2003, followed by confirmation on 24.2.2004.
9. In view of above, this appeal is dismissed. No order as to costs.
...................... ANUP K THAKUR PRESIDING MEMBER