State Consumer Disputes Redressal Commission
The New India Assurance Company Limited vs Harpal Singh Rawat on 25 March, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 81 / 2011
The New India Assurance Company Limited
9, Subhash Road, Dehradun
through Regional Office, The New India Assurance Company Limited
Gulfam House, 8/6-7, Astley Hall
Dehradun
......Appellant / Opposite Party
Versus
Sh. Harpal Singh Rawat S/o Sh. Sayan Singh Rawat
R/o Village Haldapani, Post Gopeshwar
Vikas Khand Dasholi, District Chamoli
......Respondent / Complainant
Sh. M.K. Kohli, Learned Counsel for the Appellant
Sh. Kuldeep Singh Bhandari, Learned Counsel for Respondent
Coram: Hon'ble Justice B.C. Kandpal, President
Smt. Kusum Lata Sharma, Member
Dated: 25/03/2013
ORDER
(Per: Justice B.C. Kandpal, President):
This is insurer's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 05.04.2011 passed by the District Forum, Chamoli in consumer complaint No. 39 of 2009. By the order impugned, the District Forum has partly allowed the consumer complaint and directed the appellant - opposite party to pay sum of Rs. 7,21,275/- to the respondent - complainant as compensation; Rs. 5,000/- towards mental and financial agony and Rs. 2,000/- towards litigation expenses, within a period of one month from the date of the order, failing which the above amount was to carry interest @6% p.a. from the date of filing of the consumer complaint till payment.2
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant is the registered owner of vehicle No. UA07-L-1254, which was insured with the opposite party - The New India Assurance Company Limited (appellant before this Commission) for the period from 25.07.2005 to 24.07.2006 for sum of Rs. 8,64,500/-. It is alleged that on 10.01.2006 at about 8:00 p.m., when the insured truck was going from Rishikesh to Joshimath carrying cement of J.P. Company, at Chatuapipal, the left tyre of the truck got burst, on account of which the vehicle went out of control and fell in 250 feet deep gorge and got totally damaged and the cement loaded in the truck also got damaged. It is also alleged that in the said accident, the conductor Sh. Devendra Singh died at the spot and whereas the helper Sh. Deependra Negi sustained grievous injuries. The truck was being driven by the complainant himself and he was holding a valid and effective driving licence. The complainant lodged the FIR with the police on 12.01.2006 and also gave intimation of the accident to the insurance company. The insurance company sent its surveyor at the spot after one week, who found the truck totally damaged. However, the claim lodged by the complainant was not settled by the insurance company and alleging deficiency in service on the part of the insurance company, the complainant filed a consumer complaint before the District Forum, Chamoli.
3. The insurance company filed written statement before the District Forum and pleaded that the complainant did not complete the required formalities inspite of several letters written by the insurance company and, therefore, his claim was repudiated on 26.06.2007; that vide letter dated 25.07.2007, the complainant was informed that he is not entitled to compensation on total loss basis because the insured vehicle is repairable, but the complainant did not get the vehicle 3 repaired; that the consumer complaint is barred by time and that there is no deficiency in service on their part.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 05.04.2011 in the above terms. Aggrieved by the said order, the insurance company has filed this appeal.
5. We have heard the learned counsel for the parties and have also perused the record.
6. Learned counsel for the appellant - insurance company submitted that the consumer complaint filed by the complainant was barred by time and the plea to that effect taken by the insurance company before the District Forum, was wrongly rejected by the District Forum and it was wrongly held that the consumer complaint is within time.
7. Having carefully considered the submission raised by the learned counsel for the appellant and after perusing the material available on record, we find force in the said submission. The reason being that the claim of the complainant was repudiated by the insurance company vide letter dated 26.06.2007 and the limitation shall start running from the said date. After repudiation of the claim, the insurance company sent letter to the complainant on 25.07.2007, whereby the complainant was informed that he is not entitled to compensation on total loss basis because the insured vehicle is repairable. The said letter was replied by the complainant through reply dated 11.10.2007. Thus, at the most, for arguments sake, the limitation shall be counted from 11.10.2007. The consumer complaint was filed on 24.12.2009. The complainant sent a legal notice to the 4 insurance company on 14.09.2009 and the District Forum took the said legal notice into consideration, for counting the limitation for filing the consumer complaint. The said approach of the District Forum was not justified, mainly on account of the reason that the claim of the complainant was repudiated by the insurance company on 26.06.2007 and the limitation for filing the consumer complaint shall be counted from the said date and at the most, from 11.10.2007, when the letter dated 25.07.2007 was replied by the complainant and the consumer complaint having been filed on 24.12.2009, the same was clearly barred by time and the District Forum fell in error in holding to the contrary and deciding the consumer complaint on merit.
8. Learned counsel for the appellant cited a decision dated 26.11.2012 of the Hon'ble National Commission in the case of Dolphin Offshore Enterprises (India) Ltd. Vs. The United India Insurance Co. Ltd. In the said case, the claim of the complainant was repudiated by the insurance company through letter dated 30.10.2002, whereas the consumer complaint was filed on 21.05.2006. Learned counsel for the complainant submitted that vide letter dated 12.08.2003, the complainant requested the insurance company to reconsider decision dated 30.10.2002 and vide letter dated 03.11.2004, the insurance company dismissed the review petition and hence the consumer complaint filed on 21.05.2006, was within limitation. It was held that as the claim was repudiated by letter dated 30.10.2002, period of limitation for filing consumer complaint will not be counted from 03.11.2004 and that the review petition will not extend limitation for filing consumer complaint and the consumer complaint had to be filed within period of two years from the date of repudiation, i.e., 30.10.2002. In the case in hand, the letter dated 25.07.2007 issued by the insurance company to the complainant, its reply by the complainant through letter dated 11.10.2007 and 5 thereafter the legal notice dated 14.09.2009 sent by the complainant to the insurance company, will not extend the limitation for filing the consumer complaint and the same has to be counted from the date of repudiation of the claim, i.e., 26.06.2007 and, therefore, the consumer complaint filed on 24.12.2009 was clearly barred by time.
9. Learned counsel for the appellant also cited a decision of the Hon'ble Apex Court in the case of State Bank of India Vs. B.S. Agricultural Industries (I); II (2009) CPJ 29 (SC), in which it is held that, "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".
10. Learned counsel for the appellant cited another decision of the Hon'ble Apex Court in the case of Kandimalla Raghavaiah & Co. Vs. National Insurance Co. Ltd. and another; III (2009) CPJ 75 (SC). It was a case of fire in tobacco godown, in respect of which, insurance policy had been taken by the insured. Fire broke out in the godown in the night intervening 22/23.03.1988 and the insured, for the first time, on 06.11.1992 and then again on 26.10.1995, requested the insurance company to issue claim form to enable it to prefer a claim. The request was declined by the insurance company on 6 21.03.1996. Insured then filed consumer complaint for award of compensation under the policy of insurance and contended that the limitation period will commence from the date when his request for claim form had been declined by the insurance company on 21.03.1996. The contention was not accepted and it has been held by the Hon'ble Apex Court that, "cause of action in respect of the insurance policy arose on 22/23.03.1988, 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 and, thus, the limitation for the purpose of Section 24A of the Act began to run from 23.03.1988 and, therefore, the complaint before the Commission against the insurance company for deficiency in service ought to have been filed within two years thereof". It had not been done so and the complaint has been held to be barred by time and no application for condonation of delay was also filed and the complaint was held to be manifestly barred by time and dismissal of the complaint by the Commission was found justified.
11. For the reasons aforesaid, we are of the definite view that the consumer complaint filed by the complainant was barred by time and the view, to the contrary, taken by the District Forum can not be sustained and, as such, the order impugned is liable to be set aside and the consumer complaint is liable to be dismissed and hence the appeal is fit to be allowed.
12. Appeal is allowed. Order impugned dated 05.04.2011 passed by the District Forum is set aside and consumer complaint No. 39 of 2009 is dismissed, being barred by time. No order as to costs.
(SMT. KUSUM LATA SHARMA) (JUSTICE B.C. KANDPAL) K