State Consumer Disputes Redressal Commission
Shreenathji And Company vs Oriental Insurance Company Ltd. on 5 February, 2016
M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
C.C. No.3 /2006.
FILED ON : 31.1.2006.
DECIDED ON : 5 .2.2016.
M/s Shreenathji & Company
through Proprietor Shri Dinesh Gupta,
38, Shradhanand Marg,
Chhawani, Indore (M.P.).
....COMPLAINANT.
VERSUS
The Oriental Insurance Company Ltd.,
Shiv Vilas Palace, Rajbada,
Indore (M.P.).
....OPPOSITE PARTY.
BEFORE:
HON'BLE SHRI JUSTICE RAKESH SAKSENA, PRESIDENT
HON'BLE SMT. NEERJA SINGH, MEMBER
COUNSEL APPEARING FOR THE PARTIES :
SHRI VIVEK AGRAWAL, LEARNED COUNSEL FOR COMPLAINANT
SHRI V. K. SAXENA, LEARNED COUNSEL FOR OPPOSITE PARTY.
ORDER
The following order of the Commission was delivered by Rakesh Saksena, J. :
This complaint was admitted keeping the question of limitation open to be decided later on. In view of the settled position that the question of limitation should be decided first, we heard learned counsel for the parties on IA/1, application for condonation of delay filed by the complainant.
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2. As stated by the complainant this complaint has been filed after expiration of 113 days of the period of limitation. In short, facts of the case as narrated in the complaint are that complainant / company had taken fire policy cover from the opposite party / Oriental Insurance Company. Insurance coverage extended upto 25.3.2001. On 27.3.2000 at about 2:45 PM gunny bag godown of the company caught fire by fall of wire from high tension electricity line passing over the godown as a result of which all the stocks and material kept in the godown turned into ashes. The fire also spread in the Dal Mill, Pipe Factory and other godown. Police report was lodged and intimation to Insurance Company was given. Surveyor was appointed, who assessed loss of Rs.64,07,199/-. The Insurance Company despite giving assurance to reimburse the claimed amount repudiated the claim on 10.10.2003. The complainant, however filed the complaint before this Commission on 31.1.2006.
3. In the complaint, it has been averred that the complaint was being filed with a delay of 3 months and 19 days because since 4 last months the complainant was suffering with some ailment of ear and was taking rest as per advice of doctor. Complainant also filed a separate application under section 24A of the Consumer Protection Act, 1986 stating that due to heavy losses to company, the proprietor of the company (complainant) suffered adversely in his health which resulted in hyper tension and strain of the vessels of the neck. He took treatment of Dr. Ashok Maloo continuously from October 2005. Since doctor advised him to take rest and not to move he could not file complaint within time. When he recovered, on 28.1.2006 he discussed the matter with his counsel who asked him to come to Bhopal on 30.1.2006. On 30.1.2006 complainant came to Bhopal and met his counsel and as per his instructions filed -3- the complaint before the Commission on 31.1.2006. It has been averred in the application that since the insurance claim of the complainant was repudiated on 10.10.2003 and the complaint was filed on 31.1.2006 it was about 113 days beyond limitation which deserved to be condoned for the aforesaid bonafide reasons. In support of the application the complainant filed his affidavit and also the medical certificate of Dr. Ashok Maloo of Indore dated 29.1.2006. Certificate reads as under :-
"Certificate Not for Medico Legal Purpose This is to certify that Shri Dinesh Kumar Gupta s/o R.S. Gupta, 42 yr M resident of 146 Sneh Nagar Indore is under my treatment. He had hypertension c vertigo since 1st Oct 2005. I advised rest for above period. Now he is fit to resume duty in his service."
4. Counsel for opposite party filed the written reply and stated that it was strange that the claim of complainant was rejected on 10.10.2003, but the adverse effect on the health of complainant started from October 2005, when the period of limitation elapsed. The diseases which have been diagnosed by Dr. Maloo, are of ordinary type and could be managed within a week or two by use of medicines. Learned counsel argued that to substantiate the diagnosis mentioned by the doctor in the certificate no prescriptions, investigation reports or bills of medicines have been filed. Had the diseases with which the complainant suffered were serious he would have definitely got them sincerely investigated and taken treatment after diagnosis. Counsel submitted that it has been clearly mentioned by the doctor that the certificate issued by him was not to be used for any medico legal purpose. Since it has been mentioned in the certificate that on -4- the date of issue of certificate patient was fit to resume the duty in his service it indicated that the said certificate was obtained, probably, on the pretext of seeking leave in service. Counsel submitted that the cause of not filing the complaint within limitation as shown in the application is not genuine or bonafide. As such no sufficient cause is made out for condoning the inordinate delay.
5. Apart from above, learned counsel for the opposite party submitted that in case of breaking of fire the cause of action arises on the date of occurrence. He placed reliance on the ratio of Apex Court decision rendered in case of Kandimalla Raghavaiah & Co. Vs. National Insurance Co. Ltd. & Another, 2009 CTJ 951 (Supreme Court) (CP) wherein it has been held that 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. In the light of above proposition if we examine the facts of this case, the cause of action arose on 27.3.2000 when the incident of fire occurred.
6. Learned counsel for the complainant argued that the period of limitation should be reckoned from 10.10.2003 the date of repudiation, but learned counsel for the opposite party contested it on the basis of decision rendered by the National Commission in case of Ganpat Rama Madhavi Vs. New India Assurance Company Ltd., 2012 (1) CPC 105 where the National Commission held such plea not acceptable. It observed that if settlement of claim was delayed for a long period, insured could not have waited indefinitely but should have filed the complaint within two years from occurrence of the peril. The complaint was rightly dismissed as time barred.
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7. Learned counsel for the opposite party further objected the maintainability of the complaint on the basis of clause No.6 (ii) of the condition of the Insurance Policy which is reproduced hereunder :-
"6(ii) In no case whatsoever shall the company be liable for any loss or damage after the expiration of 12 months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration; it being expressly agreed and declared that if the company shall declaim liability for any claim hereunder and such claim shall not within 12 calendar months from the date of the disclaimer have been made the subject matter of a suit in a court of law then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder."
8. Learned counsel for the complainant placing reliance on Apex Court decision in E.I.C.M. Exports Ltd. Versus South Indian Corpn. (Agencies) Ltd. & Anr., III (2009) CPJ 73 (SC) submitted that the complaint before the Consumer Fora is not a suit, therefore the provisions of Indian Carriage of Goods by Sea Act were not applicable which provided limitation of one year for filing the complaint. Contrary to it, learned counsel for the opposite party on the strength of law laid down by Apex Court in Patel Roadways Ltd. Versus Birla Yamaha Ltd., I (2000) CPJ 42 (SC) submitted that the proceedings before the National Commission came within term of the 'suit'. The Apex Court in very clear terms observed that "accepting the contention that proceedings before Forum were not suit would defeat the object and purpose for which the Consumer Protection Act was enacted. A proceeding before the National Commission, in our considered view comes within the term "suit". Learned counsel submitted that in case of conflict of decisions of the Supreme Court -6- comprising equal number of Judges, the decision of earlier Bench is binding [Jabalpur Bus Operators Association and others vs. State of M.P. and others,2003 (1) M.P.L.J. (Special Bench of 5 Judges)]. In this view of the matter, we find that the ratio of Patel Roadways, supra holds the field.
9. Learned counsel for the complainant argued that the provisions of the Article 3 Clause 6 of the Indian Carriage of Goods by Sea Act, 1925 which provided limitation of one year are the statutory provisions whereas the conditions of insurance policy are merely contractual, therefore such condition would be ineffective in view of the provisions of limitation provided under the Consumer Protection Act, and condition would be violative of Section 28 of the Indian Contract Act. Learned counsel again placed reliance on the ratio of E.I.C.M. Exports Ltd.'s case, (supra). We are unable to accept the argument advanced by learned counsel in view of the fact that Supreme Court in case of H.P. State Forest Company Ltd. Versus United India Insurance Co. Ltd., 2009 CTJ 117 (Supreme Court) (CP) categorically upheld the clause 6 (ii) of the policy of the Insurance Company. It held that a clause in an insurance policy fixing a period of limitation exginguishing the right to file a suit or complaint within a certain stipulated period which could be less than that prescribed by the Limitation Act, was not violative of Section 28 of the Indian Contract Act. Quoting the cases of National Insurance Co. Ltd. V. Sujir Ganesh Nayak & Co. & Another, (1997) 4 SCC 366 and Vulcan Insurance Co. Ltd. V. Maharaj Singh and another, (1976) 1 SCC 943. The Apex Court held that there could be agreements which do not seek to curtail the time for enforcement of the right but which provide for the forfeiture or waiver of the right itself if no action is commenced within the period stipulated by the agreement. Such a clause in the agreement would not fall within the mischief of Section 28 of the Contract Act. If -7- the policy of insurance provides that if a claim is made and rejected and no action is commenced within the time stated in the policy, the benefits flowing from the policy shall stand extinguished and any subsequent action would be time barred. Such a clause would fall outside the scope of Section 28 of the Contract Act. Thus, in view of the provisions of clause 6 (ii) of the policy if the issue of loss or damage was not made the subject matter of a suit or complaint in a court of law then the claim of the insured should for all purposes be deemed to have been abandoned and should not thereafter be held recoverable.
10. In the light of above discussion, in our opinion, it is apparent that clause 6 (ii) of the policy condition is applicable in the instant case. Since the complaint was not filed within 12 months after the date of occurrence i.e. 27.3.2000 the claim by the complainant is deemed to have been abandoned. Our this conclusion finds further support from the ratio of decision rendered by the National Commission in case of Royal Sundaram Alliance Gen. Ins. Co. Ltd. Versus Rapeti Aruna, 2015 (4) CLT 86.
11. Learned counsel for the complainant placing reliance on the decision of the Apex Court in cases of S. Ganesharaju (D) Thr. L.Rs. and Anr. Versus Narasamma (D) Thr. L.Rs. And Ors., decided on March 27, 2012, Indian Oil Corporation Ltd. Versus Subrata Borah Chowlek, decided on November 12, 2010 and Collector, Land Acquisition, Anantnag vs. Katiji, decided on February 19, 1987 submitted that it is settled position that in the matter of limitation the court should adopt a liberal approach in condoning the delay. Since the complainant was suffering seriously by hyper tension and vertigo, the delay ought to have been condoned.
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12. We are not impressed by the submission made by learned counsel for the complainant. It has been settled by Apex Court that the law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the Legislature. The law of limitation prescribed a period within which legal remedy can be availed for redress of the legal injury. The courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. It has been settled that although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, but courts are justified to adopt liberal approach in condoning the delay if the delay is of short duration and a stricter approach where the delay is inordinate. See, Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation, I (2010) CLT 333 (SC).
13. The certificate issued by Dr. Maloo appears to have been obtained merely for the purpose of using in the proceeding before the Commission for condonation of delay, although it has been specifically stated in it that the certificate was not for any medico legal purpose. It purported to be a certificate to patient for resuming his duty on service. Though, according to complainant his ailment of hyper tension with vertigo was so serious that he could not file the complaint for about 4 months, but it is strange that no prescription, investigation report, diagnosis or any medical bills have been filed to substantiate opinion of the doctor. Even if, for the sake of argument we assume that the cause of action arose on 10.10.2003 the date of repudiation of the claim, there appears no explanation why the complainant made no effort to file the -9- complaint before October 2005 when he fell ill. In these circumstances, the ground of illness taken in the application for condonation does not seem to us genuine and bonafide. It is made further suspicious by the fact that complainant himself in paragraph 18 of the complaint stated that he could not file complaint because he was suffering with some ailment in his ear. In the aforesaid circumstances, we find no sufficient cause made out to condone the inordinate delay in filing the complaint. Even otherwise, we have held the complaint not maintainable in view of clause 6 (ii) of the condition of the insurance policy. The application for condonation of delay is accordingly, dismissed and consequently the complaint is also dismissed as barred by limitation.
(Justice Rakesh Saksena) (Smt. Neerja Singh)
PRESIDENT MEMBER
Phadke