State Consumer Disputes Redressal Commission
M.M. Knitwers Pvt. Ltd. vs Bajaj Allianz General Insurance Co. ... on 28 April, 2016
IN THE STATE COMMISSION : DELHI
(Constituted under Section 9 of the Consumer Protection Act, 1986)
Date of Arguments : 28.04.2016
Date of Decision : 05.05.2016
Complaint No. 145/09
In the matter of:
M/s. M.M. Knitwears Pvt. Ltd.,
Having its registered office at
E-1, Amar Colony, Lajpat Nagar,
New Delhi-110024.
Through its Authorised Representative/
Duly constituted attorney
Shri K.S. Nair S/o Late Dr. K.C.K. Pillai,
r/o A-128, New Friends Colony, New Delhi. ...........Complainant
VERSUS
1.Bajaj Allianz General Insurance Co. Limited, 6th Floor, 93, Ashoka Bhawan, Nehru Place, New Delhi-110019.
2. Punjab National Bank, 46, Dohil Chambers, Nehru Place, New Delhi-110019 .........Opp. Parties CORAM O. P. Gupta, Member (Judicial)
1. Whether reporters of local newspaper be allowed to see the judgment? Yes/No
2. To be referred to the reporter or not? Yes/No O.P. Gupta, Member (Judicial)
1. The present comp laint is base d on the a llegations that complainant too k a fire po licy in s um o f Rs.2.20 Crore on 07.11.2006 for the period till 06.11.2007 and paid premiu m of Rs. 62,363/-. On 26.12.2006 a fire br oke out in the fac to ry of complainant. OP-2 was no tified abou t the fire. The fire brigade 1 was ca lled. Surv eyor came to the site only on 2 7.12.2006 i.e. after 24 hours. Fire officia ls h ad to pu mp tre mendous a mount of water to control and e xtinguish the fire and in that proc ess huge a mou nt of water had been lagged on the flooring of th e factory due to which the finished and semi-finis hed garments v irtually re mained subme rged in the water for more than 24 hours and their co ndition / quality deteriorated and the same had be come completely unusable . On acc ount of qualit y of the texture of the material, the sa me c annot be used ev en after 15 minutes. Surv eyor required to co mpla inant to furnis h certain docu ments wh ich they furnished. Fu rther in fo rmation soug ht for was also giv en v id e reply dated 20.01.2007, complainant h anded o v er the copie s of stoc k regis ter, inward materia l register, pro duction register, sample of effected garme nts to the surveyor, on 22.02.2007 s urv eyor v isited factory to verify the stoc k lying in the factory. The comp lainant men tioned that stoc k lying in the factory was worth Rs.18 ,0 8,945/-. Sudd enly, OP-1 sent a cheque for Rs.2,59,074/- dated 18.05.2007 cla iming the s a me to be aga inst full and final settle me nt against policy. The co mpla inant acc epted same unde r protest and wrot e a letter dated 14.06.2007 enclo sing purchase orders, export inv oice and cost of recondition ing etc. Correspondenc e went on betwee n the parties. OP-1 s ent ema il dated 14.08 .2 008 conv eying tha t the y were in disc ussion with s urveyor for rev ised assessment ba sed on relev ant documents p rov ided by co mp lainant "they wou ld rev e rt as soon as they receiv e final assessment o f los s fro m surv eyor". In the first wee k of March, 2009, OP conv eyed that nothing more could b e d one and comp la inant should resort any re med y a v ialbl e to it. Hence, this co mp laint f or balan ce payment of Rs.21,27,173/- alongwith intere st @18% per annum fro m the date of claim, Rs.5,00,000/- lacs as c omp ensa tion for mental agon y and inc onvenienc e.
22. OP-1 filed written v ers ion rais ing preliminar y objections that complaint was barred by Order II Rule 2 CPC in as muc h as the complainant v ide letter dated 10.01.2008 made co mpla int in respect of the same con tract with trunc ated claim thereb y relinquis hing the entire rema ining c laim. Th e co mplaint was barred by limitation as the same has been filed on 25.05.2009 after la pse of t wo years fro m the date when f ire too k plac e. The complainant is not a co nsumer and he has not av ailed any servic e. The insurance wa s of go od meant for co mmercial purpose. On me rits , the OP submitted that to ta l clai m of complainant was Rs.18 ,0 8,948/ - out of which Rs .2,59,074/- has been paid and d ispute c ould n ot be in ex cess of Rs.15,49,871 /- wh ich is sh ort of pec uniary jurisdiction o f this Co mmission.
3. Co mpla inan t filed rejoinde r and ev ide nce by wa y of aff idav it. OP also filed ev idence by wa y of affidav it . Both the parties have filed written a rgu ments.
4. This Co mmis sion allo wed the complaint v ide o rder dated 28.05.2014 , interest @1 0% from the date of filing comp laint was allo wed and a c ompensa tion of Rs.1,00 ,0 00/ - was allowed. In appeal no.409/14 titled as Bajaj Alli anz General Insurance Co. Ltd. Vs. M. M. Kn itwears Pv t. L td . and Punjab Nationa l Ban k decid ed on 17.11.2015, the Nationa l Co mmission held that OP-1 had specifically p leaded that co mpla int was ba rred by limitat ion, it was obligator y on this Co mmis sion to decide the sa id objection, it should hav e allo wed co mplaint only afte r holding co mp laint to be within limitat ion, declined to c onsider the said objectio n at the appeal being lega l, the appea l was allo wed and matter was re manded back for deciding the complaint afresh a fter cons idering objectio ns of limitatio n. This is how the matter is again be fo re this Co mmission.
35. Both the partie s filed addit ional sub missions on the poin t of limita tion. W e hav e go ne th roug h the sa id submis sions and heard oral argu ments a dv anced by the counsel for the parties.
6. The first c ontrov ersy is as to whether this Commission has to decid e question on limitation on ly or d ecide the whole case. From the tenor o f the order o f National Co mmiss ion it app ears that the order of this Commiss ion was set aside in whic h the question of limita tion was not decid ed. So I find that we hav e to con fine to the questio n of limitat ion only.
7. The counse l for OP relied u pon the d ecision of Hon'ble Supre me Court in Civ il Appeal No. 4962/02 titled as Kand imalla Raghav aiah & Co. Vs . National Insurance Co. & An r. decided on 10.07.2009 to ma ke out that date of fire is the date for deter mining the c ause of action an d limita tion. The c ounsel for claimant distinguis hed the same by ar guin g that in the s aid case the fire bro ke out in the night between 22/23 March,1988 whereas the co mpla int was file d in 1997, the firs t action was taken b y insured of November, 19 92 after the gap of four and half yea r when insuranc e compan y aske d for c laim for m. The Nat ional Co mmis sion found the complaint to be barre d by limitation . I agree with the sub mis sions of the cou nsel for claima nt.
8. The co unsel for claimant sub mitted t hat claimant infor med the insuranc e compa ny on the sa me day, f iled the c laim on 13.01.2007 v ide enclosure P-5 copy o f which is placed at Page- 34 of bunch of doc uments filed a lon gwith co mplaint. The surveyor of the OP h ad bee n de manding documents fro m time to time wh ich were s upplied. Th e OP abruptly issued a c heque for Rs.2,59,074/- v ide cheque d ated 18.05.2007. The OP re v ised the same to Rs.5,24,620/- v ide letter dated 15.12.2008 wh ich was not acc epted b y the claimant. Emai l date d 14.08.200 8 s ent by OP-1 and referred to in para-26 of the complaint is deter min ing factor 4 for commence ment of l imitation. W hen OP was still c onsidering the request of claiman t for final assessment and had pro mised to rev ert as soo n as they receiv e final ass essment of loss fro m surveyor, the claimant wa s justified in wa iting. It was only in f irst wee k of March, 20 09 that OP flatly ref used to pay anything more and from the said date the compla int filed in 2009 is within limita tion.
9. I hav e c are fu lly cons idered the argu ments of counsel for complainant and find the sa me to be f orceful. In rev ision petition no. 2 387/12 titled as Japjit Singh Ch adha Vs. United Insurance Co mpan y de cided on 6 t h Ma y, 2014, th e National Co mmiss ion has held that if ins uran ce c ompany wr ite to rev iew the case of complainant, limitat ion starts from the last communication . Thus, the objec tion reg arding limitation is overru led.
1 0. The next sub missio n of c ounsel for OP is that in surance po licy contain s a clause no.6 (ii) that "in no c ase w hats oe ver 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 matter of pending ac tion or arbitration". It was u rged that 12 mo nths is to be computed fro m the date of settlement i.e. 23.05.20 07. Hen ce compla int was barred. In support of his sub missions, the OP relied upon the decis ion of Hon'ble Supre me Court in Civ il Appe al No.6387/2000 titled as HP State Forest Co mpan y Vs. Un ited Ind ia Ins ura nce Co. Ltd. decide d on 18.12.2008.
1 1. Counsel fo r compla inant sub mitted th at d ecision re lied upon by OP relates to filing of claim before the insurance c ompan y and not before the court. The complainant h ad lodged the claim with the insuranc e compa ny within less th an a month. If the insurance does not dec ide the same for couple of years, it cannot take 5 shelter of c lause in fire policy. I find a great deal of forc e in the argu ments o f c ounsel for claimant.
12. The la st submission of the co unsel for c laimant is that c laimant has failed to show as to how it arriv ed the figure of Rs.21,27,173 /- in any para of co mp laint. The counse l for claiman t submitted that details are mentioned in a nnexure-2 to letter dated 14.06.2007 copy o f which is plac ed at Page-4 5 to 47, copy of annexure contains details of Rs.23,86,24 7/- and after d educting Rs.2,59,074/- rec eiv ed by complainant , sum no w claimed co mes to Rs.21,27,173/- claimed in the pres ent case. The arg u ments are quite logical.
13. In v iew of the above d iscussion, the complaint is allo wed and OP is directed to pay Rs .21,27,173/- less Rs .2,59,074/- (already paid) alongwith interest @10% per a nnu m fr o m the date of co mplain t i.e. 15.07.2009 till realis ation. The OPs will also pa y Rs.1,00,000/ - as compensation for mental ag on y, ha rassment, inconv e nienc e inclu ding cost of litigatio n.
14. The order will be co mplied with within 30 days failin g wh ich complainant will be en titled to inv oke section 25/27 of Consume r Pro te ction Act.
15. A copy of this order be sent to both the pa rties free of co st.
16. File be con signed to Record Room.
(O.P. Gupta) Member (Judicial) jk 6 7