State Consumer Disputes Redressal Commission
The Oriental Insurance Company Limited vs Arjun & Anr. on 24 January, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/13/255
Instituted on : 01.04.2013
The Oriental Insurance Company Limited,
The Divisional Manger, Division Office,
Rama Trade Centre, Opposite Rajiv Plaza, Bus Stand,
Bilaspur (C.G.) ... Appellant.
Vs.
1. Arjun, S/o Shri Baijnath,
R/o : Kotma Colliery,
Tehsil - Anuppur, District Anuppur (M.P.)
2. S.E.C.L. Through - Personnel Manager OMC
Sub Area, Jamuna Kotma Area,
P.O. Jamuna Colliery, District Anuppur (M.P.) ... Respondents.
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Ghanshyam Patel, Advocate, for appellant.
Shri Pankaj Khedkar, Advocate for respondent No.1.
Shri O.P. Agrawal, Advocate for respondent No.2.
ORDER
Dated : 24/01/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against order dated 02.02.2013, passed by District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth "District Forum" for short) in Complaint Case No.72/2009. By the impugned order the complaint of the complainant/respondent no.1 has been allowed by the District Forum and O.P.No.1/appellant, has been directed to pay a sum of Rs.2,50,000/- as compensation to the //2 // complainant/respondent no.1. along with interest @ 7% p.a. from the date of filing of the complaint i.e. 04.04.2009 till date of order within a period of two month further directed that if the appellant/Insurance Company fails to pay the said amount within two months from the date of order, then it will be liable to pay interest @ 9% p.a. The District Forum also awarded a sum of Rs.1,000/- as compensation for mental agony and Rs.1,000/- as cost of litigation in favour of the complainant/respondent no.1.
2. Briefly stated, the facts of the case of the complainant/respondent no.1 before the District Forum are :-
3. That the complainant/respondent No.1 is a permanent employee of O.P.No.2/S.E.C.L. and he under insured with the appellant/O.P.No.1 through his employer O.P.No.2/S.E.C.L. under Group Janta Personal Accident Policy. The said insurance policy was effective for the period from 16.10.1999 to 15.10.2009 and Policy No. is 47/2000/00257 for the period of 10 years. The insured amount payable to the insured is to the tune of Rs.2,50,000/-. On 24.11.2000, when the complainant/respondent No.1 was working under the mine and was loading coal in the trolley, he met with an accident with trolley and sustained injuries on his leg. The complainant/respondent No.1 was taken to S.E.C.L. Hospital, and he was admitted in the Hospital from 24.11.2000 to 12.12.2000. His further treatment was continue in other hospital also and his left leg was amputed between waist and knee and the complainant/respondent no.1 //3 // suffered 70% permanent disability. The O.P.No.2/employer of the complainant/respondent No.1 declared him unfit vide letter No.1321 dated 07.08.2001. The complainant/respondent No.1 submitted his claim before the O.P.No.1/Insurance Company, but the O.P.No.1/Insurance Company did not respond it. The complainant/respondent No.1 sent legal notice to the O.P.No.1/Insurance Company on 15.10.2008 and the O.P.No.1/Insurance Company replied the said legal notice stating that the insurance policy was already cancelled vide order dated 08.03.2002 and repudiated the claim of the complainant/respondent no.1. Hence complainant/respondent No.1 filed consumer complaint before the District Forum.
4. The appellant/O.P.No.1 (Insurance Company) filed its written version before the District Forum and denied the allegations levelled by the complainant/respondent no.1 in his complaint. The appellant/Insurance specifically averred that the claim of the complainant/respondent no.1 is barred by time and the complainant/respondent no.1 did not inform the O.P.No.1/appellant within 15 days from the date of incident and he violated the terms and conditions of the insurance policy. The complaint was filed by the complainant/respondent no.1 before the District Forum after 9 years of the incident. According to the complainant/respondent No.1, he suffered only 70% disability and as per terms and conditions of the insurance policy, the insurance amount is payable only in case of loss of //4 // 100% permanent disability, otherwise, the insured amount is not payable. Therefore, the complainant/respondent No.1 is not entitled to receive any compensation from the O.P.No.1/Insurance Company and the complaint of the complainant is liable to be dismissed.
5. O.P. No.2/S.E.C.L. admitted in his written version that he had co-operated the employees in obtaining Group Janta Personal Accident Insurance Policy and in this regard a Memorandum of Understanding (M.O.U) was executed on 06.09.1999 between the appellant/O.P.No.1 and representative of workers of S.E.C.L. In said M.O.U. it is mentioned that "if certain modification is required, this will be done with the representatives of the Insurance Company from the Insurance side and the representatives from the S.E.C.L. Management side by CGM (P & A) and Keshav Kanskar, JCC Member. The payment of benefit shall be regulated as per standard policy and condition. The salient features will not be changed." The appellant/O.P.No.1 without complying the above M.O.U. cancelled the insurance policy unilaterally and it did not comply the conditions mentioned in the M.O.U. and O.P.No.2 & 3 filed writ petition before High Court of Chhattisgarh, which is registered as Writ Petition No.327/2002.
6. Shri Ghanshyam Patel, learned counsel for the appellant/O.P. No.1 argued that in condition no.5 of the insurance policy, it has been mentioned that the company may at any time cancel the policy. In the instant case, the appellant/Insurance Company had already cancelled //5 // the policy. He further argued that the complainant/respondent No.1 did not lodge any formal claim within prescribed period before the appellant/Insurance Company. He further argued that the complaint filed by the complainant/respondent No.1, is time barred. He further argued that the appellant/Insurance Company, is not liable to pay compensation to the complainant/respondent No.1.
7. Shri Pankaj Khedkar, learned counsel for the respondent No.1/complainant, supported the impugned order.
8. Shri O.P. Agrawal, learned counsel for the respondent Nos.2 & 3, also supported the impugned order.
9. We have heard learned counsel for both the parties at length and have also perused the record of the District Forum.
10. 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) //6 //
"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 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."
11. 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 //7 // 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 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."
12. The respondent no.1/complainant filed document P-1 i.e. identity card of S.E.C.L, P-2 is Certificate of Insurance issued by the Insurance Company, P-3 is I.O.D. form of S.E.C.L., P-4 is letter of S.E.C.L. regarding Service Book, P-5 is discharge ticket, P-6 is Disability Certificate issued by District Medical Board, Shahdol, P-7 is letter of S.E.C.L. regarding termination of the complainant, P-8 is Ration Card issued by office of Nagar Palika Parishad, Pasan, P-7 is legal notice dated 15.10.2008, P-8-A & B is postal receipt dated 15.10.2008 & acknowledgement.
13. In the instant case, the incident took place on 24.11.2000. The complainant filed document i.e. Certificate of Insurance and Injury Report of the complainant and document is Medical Certificate for physical handicapped. In Disability Certificate, it has been mentioned //8 // that the disability of the complainant/respondent no.1 is 70% (Seventy Percent) as per the description given vide Govt. of India, Ministry of social welfare Gagette Notification No.4-2/D-3-DW-III-Dt. 6.8.86. Looking to the Medical Certificate for Physical Handicapped it appears that the respondent No.1/complainant sustained 70% permanent disability and another document filed by the complainant is office order dated 7/8.8.2001 by which complainant/respondent no.1 was terminated by S.E.C.L. The respondent no.1/complainant has not filed any document relating to claim submitted by him before the appellant/Insurance Company. The respondent no.1/complainant only filed legal notice dated 15.10.2008 sent to the appellant/Insurance Company. The incident took place on 24.11.2000 and Medical Certificate for Physical Handicapped has been issued by District Medical Board, Shahdol (M.P.) on 29.07.2002 and complainant/respondent No.1 sent legal notice to the appellant/Insurance Company on 15.10.2008. The respondent no.1/complainant has not been able to prove that prior to sending legal notice to the appellant/Insurance Company, he submitted his claim before the appellant/Insurance Company and the appellant/Insurance Company has repudiated his claim. It appears that the cause of action was arosed on 24.11.2000, therefore, sending legal notice, does not extend limitation for filing the complaint. The complaint filed by the complainant/respondent no.1 is apparently barred by time.
//9 //
14. The cause of action arosed on 24.11.2000. Mere sending legal notice relating to a stale claim or dead grievance, it does not give rise to fresh cause of action and mere submission of legal notice or representation to the competent authority does not arrest time. We hold that the complaint filed by the complainant/respondent no.1 is barred by time and is liable to be dismissed under Section 24A of the Consumer Protection Act, 1986.
15. Therefore, we allow the appeal filed by the appellant/O.P.No.1 and set aside the impugned order dated 02.02.2013, passed by District Forum, and complaint of the complainant/respondent No.1, is dismissed as barred by time. No order as to the cost of this appeal.
(Justice R.S.Sharma) (Ms.Heena Thakkar)
President Member
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