State Consumer Disputes Redressal Commission
United India Insurance Company Limited vs Gurvinder Kaur & Anr. on 31 August, 2010
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SCO NO.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.483 of 2009.
Date of Institution: 08.04.2009.
Date of Decision: 31.08.2010.
United India Insurance Company Limited, Branch Office, Bus Stand, Nakodar
through Sh. O.P. Kanava, Deputy Manager, Regional Office, 136, Feroze Gandhi
Market, Ludhiana.
.....Appellant.
Versus
1. Gurvinder Kaur Wd/o of Gurpal Singh S/o Mohinder Singh;
2. Mandeep Singh S/o Gurpal Singh S/o Mohinder Singh;
Both residents of Village Dhippanwali, Tehsil Fazilka, District Ferozepur.
.....Respondents.
First Appeal against the order dated
25.02.2009 of the District Consumer Disputes
Redressal Forum, Ferozepur.
Before:-
Sh. Inderjit Kaushik, Presiding Member.
Sh. Piare Lal Garg, Member.
Present:-
For the appellant : Sh. Munish Goel, Advocate.
For the respondents : Sh. Amit Mehta, Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
The United India Insurance Company Limited (In short "the appellant") has filed this appeal against the order dated 25.02.2009 passed by the learned District Consumer Disputes Redressal Forum, Ferozepur (in short "the District Forum").
2. The facts giving rise to the present appeal are that the complainants (hereinafter to be referred as "respondents") filed a complaint u/s 12 of the Consumer Protection Act, 1986 (in short, "the Act"). It was averred that Gurpal Singh husband of respondent no.1 and father of respondent no.2 was owner of Maruti Zen car bearing registration no.CH-01-N-3258 which was comprehensively insured with the appellant vide cover note dated 3.2.1999 for the period from 6.2.1999 to 5.2.2000. On 17.3.1999, Gurpal Singh left for Chandigarh but he did not return and Jatinder Pal Singh, nephew of Gurpal Singh lodged FIR No.87 First Appeal No.483 of 2009 2 dated 5.4.1999 u/s 364 IPC at P.S. Sadar, Fazilka regarding abduction of Gurpal Singh with an intention to murder him. Later on, said Jatinder Pal Singh, the respondent and other six persons were got falsely implicated by the sister of the deceased but they were acquitted vide judgment dated 26.4.2006 of the learned Additional Sessions Judge, Ferozepur.
3. Thereafter, respondent no.1 orally lodged the claim with the insurance company for the payment of insurance amount on total loss basis, as the car was totally damaged but the insurance company did not reply. Respondent no.1 vide letter dated 18.4.2007 informed the company regarding total loss of the car and requested for payment of the insurance amount. Reminder dated 10.7.2007 was also sent to the appellant.
4. Respondent no.1 remained busy in pursuing the above said criminal case of murder and the claim case could not be filed earlier. The value of the car at the time of loss/accident, was Rs.2,50,000/- and the respondents were entitled to the full amount. Vide letter dated 4.7.2008, it was mentioned that Sh. Ravinder Kumar Gupta surveyor of the company in his report dated 3.7.2008, had intimated that the said car was lying in Police Station, Sadar, Fazilka and the police did not allow him to inspect the vehicle or take photographs, but no information was sent to respondent no.1 about the alleged letter. The Divisional Manager, Abohar of the insurance company vide his letter dated 26.6.2008 informed respondent no.1 that M/s J. Lal & Company had been appointed as surveyor for the assessment of the loss and advised respondent no1 to intimate them the name/place of the workshop where the said vehicle was lying for survey and also demanded an affidavit from respondent no.1.
5. It was further pleaded that M/s J. Lal & Company wrote a dated 26.6.2008 to respondent no.1 to get the car released from Police Station, Sadar, Fazilka and to bring it to her residential place or to some workshop where it will be inspected in presence of the representative of the respondents but without waiting First Appeal No.483 of 2009 3 for the reply, the appellant rejected the claim of the respondents by giving wrong facts.
6. Respondent no.2 was minor at that time and the complaint was dismissed by the District Forum vide order dated 1.4.2008 being pre-mature. It was ordered that the respondent shall submit the requisite documents to the appellant within a period of 15 days and the appellant shall make efforts to decide the claim case of the respondent within a period of one month.
7. Respondent no.1 submitted requisite documents but the appellant wrongly and illegally rejected the claim vide letter dated 4.7.2008. Hence, it was pleaded that the appellant was deficient in rendering services to the respondents and prayed that the complaint be accepted and the appellant be directed to pay Rs.2,50,000/- sum assured along with interest @ 18% p.a. from the date of intimation till realization .Compensation and costs were also prayed.
8. In written reply, the appellant took objections that complicated questions of law and facts were involved and the respondent had not come to the Forum with clean hands. The respondent had moved the claim after the expiry of 8 years of the incident, whereas within 15 days from the accident, the respondent was required to move the claim. As such, the claim was hopelessly time barred.
9. On merits, it was submitted that the claim was lodged by the respondent and a letter dated 14.5.2007 was sent to the respondent asking her to send the requisite documents but the respondent did not respond. The insurance policy expired on 5.2.1999 and the alleged accident took place between 17.3.1999 to 16.8.2000 after expiry of the policy period. No detailed facts were given as to how the deceased died and when the accident took place. The company appointed Sh. Ravinder Kumar Gupta as surveyor to assess the loss of the respondent, who vide his report dated 3.7.2008, confirmed that the car was still lying in P.S. Sadar, Fazilka but the police authorities did not allow him to inspect the vehicle and to take the photographs. Letter dated 26.6.2008 was written to the respondent by the First Appeal No.483 of 2009 4 surveyor to get the car released from the police station and to take the car to other place or concerned workshop but the respondent did not respond.
10. The respondent did not make a mention of Mandeep Singh, respondent no.2 and his identity was deliberately concealed. The respondent did not get the vehicle inspected from any surveyor. Although she obtained the order dated 9.12.2006 for return of articles to the registered owner. But respondent no.1 was neither the registered owner nor she got changed the RC of the car in her name or in the name of respondent no.2. Hence, dismissal of the complaint was prayed.
11. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum accepted the complaint and directed the appellant insurance company to make payment of Rs.2,50,000/- within 30 days from the receipt of the documents signed by the respondents and in case the same is not paid within 30 days after the receipt of documents, then the said amount will carry interest @ 9% p.a. from 4.7.2008 till realization.
12. Aggrieved by the impugned order dated 25.2.2009, the appellant insurance company has come up in appeal.
13. We have gone through the pleadings of the parties, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
14. Learned counsel for the appellant insurance company has laid much stress that the claim was filed after 8 years of the incident and the complaint was hopelessly time barred. There is no report of the surveyor. No application for condoning the delay was filed. The appellant appointed the surveyor and got the loss assessed, but time barred claim cannot be allowed.
15. On the other hand, learned counsel for the respondents argued that the accident took place on 17.3.1999 and the car remained under water for about one and half years. It was recovered on 16.8.2000. Respondent no.1 was in First Appeal No.483 of 2009 5 custody and respondent no.2 was minor. The delay in filing the complaint has been fully explained and the complaint was filed when the cause of action arose to the respondents, as such, it is not time barred.
16. We have carefully considered the submissions of the learned counsel for the parties.
17. The question touching the crux of the problem is regarding limitation. As per the appellant, the claim is hopelessly time barred, whereas as per the respondents, the delay has been explained. Admittedly, the accident took place on 17.3.1999. FIR Ex.C6 was registered on 5.4.1999 at P.S. Sadar, Fazilka against respondent no.1 along with others and respondent no.1 was also arrested in the said case. As per judgment Ex.C7, she was acquitted along with others on 26.4.2006 and all the accused were shown on bail in the said case. Respondent no.1/complainant has failed to bring on record any evidence that since the registration of the case in the year 2000, she remained in custody and could not lodge the complaint within the period of limitation. Had she remained in custody throughout, then the things would have been different and some benefit of unavoidable circumstances could be given. At the cost of repetition, nothing has come on record as to when respondent no.1 was released on bail and why the present complaint was not lodged till 12.8.2008. It was for respondent no.1 to explain the delay which she has failed. Application for condonation of delay was also not filed.
18. Hon'ble National Commission in a case reported as "M/s Zenith Computers Limited Vs Managing Director, New India Assurance Company Limited & Others", 2002(1) CLT-243(NC), in para no.2, observed as follows:-
"2. Another question which cannot be lost sight of, is that of limitation. The Consumer Protection Act was amended in June, 1993 and Section 24A provides as under:-
24A Limitation Period:-
(i) 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.First Appeal No.483 of 2009 6
(ii) 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.
In the present case the complainant had not asked for any condonation of delay nor has he shown any ground which could bring this case within limitation. In the light of this, present complaint which was filed on 18.2.1994 in respect of the claim that arose on 13.11.1991, is clearly barred by limitation and no efforts have been made by the complainant to seek condonation of delay".
19. In case reported as "Kandimalla Ragavaiah & Co. Vs New India Assurance Company Limited & Others", 2003(1) CLT-549(NC), the Hon'ble National Commission observed that "the cause of action cannot be assumed to continue till the date of denial of claim".
20. From the above discussion, it is clear that respondent no.1 has failed to explain the delay. Even if she was pursuing the claim before the authorities of appellant insurance company, that cannot give her a recurring cause of action and u/s 24A of the Act, the complaint has to be filed within two years from the date when cause of action arose.
21. In the present case, even if it is taken that the car was recovered on 16.8.2000, then the complaint should have been lodged within 2 years of the recovery of the car, if not from the date of cause of action, but that has not been done. Learned District Forum also lost sight of the fact that respondent no.1 was on bail and nothing prevented her from lodging the complaint and it was not that after acquittal only, she was to lodge the complaint. She was acquitted on 26.4.2006 but the present complaint was filed on 12.8.2008. Thus, seeing from all angles, the complaint is hopelessly time barred and the impugned order under appeal of the learned District Forum, can not be sustained, being erroneous and against the facts on record.
First Appeal No.483 of 2009 7
22. Accordingly, the appeal is accepted and the order of the learned District Forum dated 25.2.2009 under appeal, is set aside. Consequently, the complaint filed by the respondents is dismissed with no order as to costs.
23. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 08.04.2009 and another sum of Rs.1,00,000/- in compliance with the order of this Commission dated 6.5.2009. This amount of Rs.1,25,000/-(25,000+1,00,000) with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
24. The arguments in this appeal were heard on 25.08.2010 and the order was reserved. Now the order be communicated to the parties.
25. The appeal could be finalized within the stipulated timeframe due to heavy pendency of Court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member.
August 31, 2010.
(Gurmeet Singh)