National Consumer Disputes Redressal
Tayal Enterprises vs United India Insurance Co. Ltd. on 31 October, 2006
Equivalent citations: I(2007)CPJ380(NC)
ORDER
B.K. Taimni, Member
1. Petitioner was the complainant before the District Forum, where he had filed a complaint alleging deficiency in service on the part of the respondent.
2. Very briefly the facts leading to filing the complaint were that the petitioner M/s. Tayal Enterprises, a partnership firm, owned a car which was lent to one of his friends who in turn had given it to some other people and it was used to go up to Goa, where allegedly one of the occupants of the car asked the driver to give him the car to fetch the camera but, subsequently, neither the person, i.e., Mr. Shinde nor the car came back, in view of which an FIR was lodged with the Goa Police whereupon they registered a case under Sections 406 and 34, IPC and finally after investigation an 'FR' was filed. The matter was also reported to the respondent Insurance Company, who had insured the car for Rs. 1,40,000 when the petitioner/complainant was not getting any response to settle their claim, a complaint was filed by one Mr. Jag Mohan, having power of attorney from one Mrs. Pushpa Kumari Aggarwal, being a partner of the petitioner firm. The District Forum, after hearing the parties dismissed the complaint. An appeal against this order also met the same fate, hence this revision petition before us.
3. One of the grounds dismissing the complaint by the District Forum affirmed by the State Commission related to be the ground of limitation. Admittedly, the vehicle was lost/stolen on 8.6.1993 in Goa and this complaint has been filed before the District Forum only in March 1999. The learned Counsel for the petitioner relies upon a number of judgments that till the time claim is not repudiated the right to sue survives and period for limitation would start from the date of repudiation of the claim, which according to him has not been done till date. As per written version filed by the respondent before the District Forum, it was clearly stated that the claim of the petitioner was treated as 'No claim' way back on 11.6.1996 and the petition was communicated of the same decision. It is the case of the petitioners that they never got this letter, hence in their perspective, the claim was never repudiated and 'cause of action' would not arise till the time it is done and the period of limitation would start from that date. We find that this stand of the petitioners is quite untenable for more than one reasons. Firstly, since according to them the claim has not been repudiated till date, then what could have been the ground for filing the complaint in March 1999 and not wait further to file the complaint?. It is also not in dispute that the offices of the respondent and complainant are in the same city. In ordinary circumstances, if the claim is not settled for sometime then the claimant would approach the Insurance Company and press for settlement of claim. We are unable to appreciate that if he had approached the respondents after June 1996, was he not told that the claim has been treated as 'No Claim'. As per his own version the petitioner is a prosperous and well-to-do firm and having adequate resources, except, perhaps, to prosecute this case for a number of years. Two other small points were raised by the learned Counsel for the petitioner that word 'No-claim' could not be treated as repudiation. We are afraid we do not share this perspective of the learned Counsel for the petitioner. 'No claim' itself would mean that the claim stands repudiated. It was also argued by the learned Counsel for the petitioner that it was a clear case of theft of vehicle and if the Goa Police registered the case under Sections 406 and 34 of IPC and 'FR' filed, it cannot be held against them. We are afraid we do not again share this perspective. Prima facie the police was not impressed of anyone stealing the car. We are also of the same view for the simple reason that it is one of the persons, namely, Mr. Shinde, who travelled from Udaipur to Goa on behest of this gentleman Mr. Jagmohan, himself took away the vehicle and never returned. We see on record no affidavit of Mr. Bageria as to what was his relationship with Mr. Shinde and how did he let him travel in the car which was taken away by him and what follow up action was taken to trace him and the car? The conduct of the petitioner would come out very clearly if we reproduce their reply to letter dated 9.3.1995, addressed to the respondents, extract from the written version filed by the respondents before the District Forum. This reads as follows:
As per letter dated 23.2.1994 we still confirm that rue had given the car to Mr. J. Jagmohan Bageria to visit Goa and we do not know whether he had gone to Goa or not. Mr. Jagmohan Bageria narrated to us that he has a friend Yashwant Kala and there is a possibility that he might have gone to Goa in their above car, but we do not have any knowledge regarding this.
Since, we do not have any driver on that car, Mr. Jagmohan Bageria driven the car and taken from our premises and he must have engaged a driver for Goa and he may be the Iqbal Bag. Therefore, we do not feel necessary, that the driver knows us or not.
Whatever happened in Goa is not known to us. The people who were travelling in the car can give you the correct picture.
Regarding your point Nos. 5 and 7 we wish to mention that we do not have any report or knowledge of Captain Saxena. Therefore, only Mr. Jagmohan Bageria can give you details of these people. For your information, the address of Jagmohan Bageria is - House No. 1003, Sector 4, Hiran Magri, Udaipur.
(Emphasis supplied)
4. This letter is a measure of callous indifference or shall we say, connivance of the petitioners. They have the audacity to make the above statement after almost two years of loss of the car. One need not really delve any further in the uncertainty of the stand of the petitioner, while dealing with the status of the case as also what happened to the car in Goa! In normal circumstances, a person whose car has been stolen would take pains to look for the car or seek relief before any quarter.
5. What we see in this case is the person who should really have been held responsible for the loss of the car namely, Mr. Jagmohan Bageria, in fact, has been made Power of Attorney holder to contest this case.
6. We have also very carefully gone through the Power of Attorney which is on record. This has been signed by one of the partners of the petitioner firm, namely, Mrs. Pushpa Kumari Aggarwal. In the Power of Attorney it starts,'...I was the registered owner of LMV Ambassador Diesel Car Model 1990..." If the car was registered in the name of Mrs. Pushpa Kumari Aggarwal, being the registered owner, and if this indeed was the case, then how could the petitioner 'firm', file a complaint or for that matter, her Power of Attorney holder could file a complaint in the name of the firm to make it maintainable before a Consumer Fora.
7. In view of the conduct and material brought on record, we are clearly of the view that the petitioner was aware of the 'No claim' status of the claim preferred by them because we are unable to satisfy us that the complainants will not pursue this case with the Insurance Company who is located in the same city, we also fail to understand as to what interest of the Insurance Company shall be served by withholding this information?
8. Another plea taken by the learned Counsel for the petitioner was, "they were in correspondence with the respondents". It is well settled law that the correspondence does not extend the period of limitation as laid down by law. The very fact the car was allegedly lost in June 1993 and complaint came to be filed in 1999 itself shows the callous indifference, lack of interest on the part of the petitioner.
9. In view of above, we see no ground to interfere with the well reasoned order passed by the District Forum and affirmed by the State Commission that beside other things the complaint was barred by limitation as also the complaint is not maintainable as per law as not being properly filed.
10. In the aforementioned circumstances, we see no merit in this petition, hence dismissed. No order as to costs.