National Consumer Disputes Redressal
Astha International Rice Mill vs Oriental Insurance Company Limited on 17 February, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 884 OF 2015 1. ASTHA INTERNATIONAL RICE MILL ...........Complainant(s) Versus 1. ORIENTAL INSURANCE COMPANY LIMITED ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. PREM NARAIN, MEMBER
For the Complainant : : Ms. Charu Ambwani, Adv. with Mr. S. Chakraborty, Adv. For the Opp.Party : Dated : 17 Feb 2016 ORDER
Complainant a Sole Proprietor concern is running a Rice Mill by the name of "M/S. Astha International Rice Mill", situated at Gautam Budh Nagar. It has filed present Consumer Complaint under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short, 'Act') stating interalia, that it is carrying business of purchase of Paddy from sellers and to convert the same into polish rice and thereafter, sell the finished products. It had insured its rice mill including paddy rice with the Opposite Party (OP) and is regularly paying the insurance premium.
2. In 2008, complainant purchased paddy from one Chavi Goil for a sum of Rs.57 lacs and paid Rs.10 lacs as advance, in favour of Prasad Arath and Deepak International. Since, complainant could not repay the aforesaid amount on time, it deposited the paddy at U.P. State Warehousing Corporation, Bulandshar as security and paid balance amount to Chavi Goil. A letter of acknowledgement with regard to receipt of the entire amount, was given by Chavi Goil to the complainant.
3. Later on, Chavi Goil lodged a false F.I.R. in Crime Case No.670 of 2009 against the complainant for non-payment of Rs.57 lacs. The complainant deposited the entire amount in that F.I.R. On 1.12.2011, complainant's property along with paddy and rice were attached under Sections 82 and 83 of Cr.P.C. The court appointed one Sh.Brijpal Singh and Shri Dharmendra Singh as Custodians of the material attached.
4. In order to continue the existing business, complainant in November, 2011 purchased paddy from one Hira Lal on credit for a sum of Rs.2.45 crores, for which complainant paid a sum of Rs.15 lacs as advance. As the complainant was facing financial hardships, it could not repay the balance amount. Thereafter, Hira Lal lodged an F.I.R. in Crime Case No. 109/2012, under Sections 406/420 and 506 I.P.C. against the complainant.
5. On 16.03.2012, Brijpal Sigh, custodian filed an application before C.J.M., Bulandshar requesting to keep the stock in safe custody as the same will deteriorate due to rains. The application was allowed and articles were kept in his safe custody. It is alleged, that Brijpal Singh in connivance with police, looted the entire premises of complainant's mill and robbed articles worth Rs.11 crores approx. which were lying in the mill in safe custody as per order of the C.J.M. The premises and articles were covered under the insurance policy issued by the Opposite Party (O.P.) from 25.06.2011 to 24.06.2012.
6. On 20.3.2012, complainant intimated the OP about the incident so as to compensate for the loss occurred. Despite various reminders for payment, O.P. did not respond.
7. It is further stated, that on 18.05.2012 complainant was taken into judicial custody in the case lodged by Chavi Goil. The complainant was granted interim bail on 24.08.2012. The complainant has remained in judicial custody for about two years. However, O.P. has not paid the sum insured. Thus, alleging deficiency on the part of O.P, present complaint has filed stating, that cause of action arose on 20.03.2012 and following relief have been sought;
" (a) Allow the present complaint and direct the opposite party be ordered to pay to the Complainant a sum of Rs. 11.60 Crs.(Rupees Eleven Crores and Sixty Lacs only) being the insured value of the articles kept in the Mill along with interest @ 24% per annum from 20.3.2012 on the said amount; until payment/ realization;
(b) Allow the present suit and direct the opposite party to pay an amount of Rs.20,00,000/-(Rupees twenty lacs only) on account of loss in profit due to disruption of business transaction;
(c) Hold the Opposite Party guilty of deficiency in service and direct them to pay damages to the Complainant to the tune of Rs.50,00,000/-(Rupees Fifty Lacs);
(d) Hold the Opposite Party guilty of deficiency in service and direct them to bear the cost of litigation being an amount for s. 2,00,000/-(Rupees two lacs);
(e) Hold the opposite party liable to pay pendentlite and future interest till actual payment on the said amounts at the rate of 18% per annum."
8. Along with present complaint, an application seeking condonation of delay of 512 days has also been filed.
9. We have heard learned counsel for the complainant and gone through the record.
10. The main ground on which condonation of delay has been sought is, that complainant was in judicial custody since 19.12.2012, therefore delay should be condoned.
11. As per complainant's case, burglary has taken place on 17.3.2012 in his rice mill. Further, complainant was arrested on 18.05.2012 and later on was released on interim bail on 24.08.2012 and again arrested on 19.12.2012. Thus, complainant had sufficient time to file the complaint when he was on interim bail. There is no explanation as to why complainant did not file the complaint during the period when he was on interim bail.
12. Further, as per Complainant's own case, he is still in Judicial Custody, then how he has been able now to file this complaint still being in judicial custody.
13. Section 24-A of the Act, deals with the period of limitation and same is reproduced as under;
"24-A. Limitation period :-(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1) a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."
14. The above provision is clearly peremptory in nature requiring the Consumer Fora to see at the time of entertaining the complaint, whether it has been filed within the stipulated period of two years from the date of cause of action.
15. Hon'ble Apex Court in case of Kandimalla Raghavaiah & Co. versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made in case State Bank of India vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, as under:-
"12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has held;
8. It would be seen from the aforesaid provision that it is peremptory in nature and requires 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 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. 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 24A 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."
16. In para No.13, it has been held by the Hon'ble Supreme Court that;
"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. 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."
17. It is complainant's own case that cause of action arose on 20.3.2012, whereas consumer complaint has been filed only on 14.08.2015. Therefore, on the face of it, consumer complaint is barred by limitation.
18. Be that as it may, the complainant has no case even on merits. The complainant in its letter dated 20.3.2012 addressed to O.P., has nowhere stated as on which date the burglary in its mill has took place. Further, the articles lying in the mill had already been attached by the Court in Criminal Proceedings and same were lying in the custody of the custodian. Therefore, it is the custodian who could have filed the complaint with regard to the burglary with the O.P.
19. Lastly, , complainant has not placed on record any documents, that is, Stock Register, Purchase Bills, Sale Bills etc, with regard to alleged paddy worth Rs.11 crores lying in its mill on the date of incident. Thus, complainant has not filed even single document to show his ownership with regard to paddy worth Rs.11 crores, lying in the mill.
20. Accordingly, after going through the entire complaint and material placed on record, we find that there is no deficiency on the part of the O.P.
21. Therefore, present complaint stand dismissed in limini being barred by limitation as well as on merits.
......................J V.B. GUPTA PRESIDING MEMBER ...................... PREM NARAIN MEMBER