BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 316 OF 2014 AGAINST C.C.NO.19 OF 2008 DISTRICT CONSUMER FORUM NALGONDA
Between
TATA AIG General Insurance Company Limited, Raheja Towers,
9th Floor, Betawing, 177, Annasalai, Chennai-600 002.
Represented by its Authorized Signatory.
Appellant/opposite party no.1
AND
- Cherukupally Nageshwara Rao S/o Venkatratnam,
Age: 29 years R/o Kapugallu Village of Kodad Mandal,
Nalgonda District.
Respondent/complainant
- Road Safety Club, Admn.Office, 2A, II Floor, Prakasham Road,
T.Nagar, Chennai-600 017.
Represented by its Authorized-Signatory
- Shriram Chit Fund Private Limited, Branch Kodad,
represented by its Manager, Kodad Town and Mandal,
Nalgonda District.
Respondents/opposite parties no.2 and 3
Counsel for the Appellant M/s N.Mohana Krishna
Counsel for the Respondent No.1 M/s Vakkanti Narasimha Rao
Counsel for the Respondent No.2 M/s KR Associates
Counsel for the Respondent No.3 M/s MVR Suresh
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
WEDNESDAY THE SECOND DAY OF MAY
TWO THOUSAND EIGHTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is an appeal filed by the opposite party no.1 aggrieved by the orders of District Consumer Forum, Nalgonda dated 17.04.2014 made in CC No.19 of 2008 wherein it allowed the complaint directing the opposite party no.1 to deposit an amount of Rs.3,00,000/- before the District Forum together with Rs.5,000/- with interest @ 9% per annum from the date of the complaint till realization with costs of Rs.5,000/-. The complaint against the opposite parties no.2 and 3 is dismissed without costs.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainant, in brief, is that complainant was working as a driver on heavy goods vehicle and was getting a salary of Rs.7,500/- per month. The Complainant had insured his personal life with opposite party no.1 through the opposite parties no.2 and 3 in the year 2003 at Kodad. On 08.03.2004 at about 11-00 a.m., the complainant met with an accident at Konakanchi Village in Penaganchiprolu Mandal, Krishna District and the Police, Penaganchiprolu registered a case in Crime No.20/2004 Under Sections 337 and 338 IPC. The Complainant was shifted to Osmania General Hospital, Hyderabad and his left leg was amputated just below the knee and thus he suffered 100% disability to drive a vehicle. The Complainant spent a sum of Rs.30,000/- towards his treatment. The Complainant submitted claim petition and copies of documents to the Opposite Party No.3 for being transmitted to the Opposite Parties No.1 and 2. Despite receipt of the copies through the advocate of the Complainant, opposite party no.1 did not settle the matter. Hence, the complaint praying to direct the opposite to pay a sum of Rs.3,00,000/- towards disability suffered by him due to amputation of his leg due to an accident.
4. The Opposite Party No.1 resisted the case while admitting the issuance of policy contended that the Complainant made the claim in 2008 for an accident said to have occurred on 08.03.2004 and as such it is barred by limitation. The Complainant issued legal notice dated 18.06.2007 ingeniously to save limitation. The Opposite Party No.1 was informed about the accident on 18.06.2007 by the counsel for the Complainant without providing any supporting documents like policy and accidental documents. The Complainant never approached the Opposite Party No.1 and as such there are no deficiency of services on his part. Hence, the opposite party no.1 prayed for dismissal of the complaint.
5.. The Opposite Party No.2 resisted the case contending that it issued membership certificate as pleaded by the Complainant and it would be valid for 8 years and along with each membership certificate, an insurance certificate was also issued by the Opposite Party No.1 and as such there is contract between the Opposite Party No.1 and the Complainant and the position between Opposite Party No.2 and the Complainant had effaced with the issuance of policy by opposite party no.1. The District Forum has no jurisdiction since there is arbitration clause according to the terms of contract.
6. The Opposite Party No.3 equally resisted the case contending that it is only a felicitator and there is no contract between the Complainant and the Opposite Party No.3.
7. In proof of the complainant’s case, he filed his evidence affidavit and got marked Ex.A1 to A22. On behalf of the opposite party no.1, the Branch Claims Manager of the opposite party no.1 and got marked Exs.B1 to B5. While on behalf of the opposite parties no.2 and 3, the Authorized Signatory of the opposite party no.2 and the Authorized Signatory of the opposite party no.3 have filed their respective affidavits. the Manager (Legal) filed his evidence affidavit and got marked Exs.B1 to B3.
7. The District Forum after considering the material available on record, allowed the complaint bearing CC No.19 of 2008 by orders dated 17.04.2014 as stated in paragraph No.1, supra.
9. Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The District Forum without considering the limitation aspect allowed the complaint. The accident occurred on 08.03.2004 but complaint was filed in the year 2008 which is barred by limitation. The complainant did not pay the premium amount hence his name does not appear in the list of members i.e., Ex.B5. When the matter was remanded back for marking the list of members covered by the policy it is the bounden duty of the District Forum to adjudicate on the issue whether the complaint is covered by the policy or not. The complainant did not suffer any total/partial or permanent disablement. Hence, the opposite party no.1 prayed to allow the appeal by setting aside the order of the District Forum.
10. Counsel for appellant, respondent no.1/complainant and respondent no.3/opposite party no.3 present and were heard. No representation on behalf of the respondent no.2/opposite party no.2. Written arguments of appellant and the respondent no.2 filed.
11. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief?
12. It is an undisputed fact that the complainant enrolled himself as a member of respondent no.2/opposite party no.2 by virtue of which he was entitled to benefits of insurance policy amounting to Rs. 3 lakhs. It agreed to pay up to Rs. 3 lakhs towards accidental benefit, or towards total permanent disability or towards permanent partial disability.
13. The complainant alleges that he sustained amputation of his left leg due to road accident that took place on 08.03.2004 for which he gave a report to the police on 08.03.2004, basing on which a case in Crime No. 20/2004 was registered u/s. 338 and 337 of IPC against the driver of the lorry bearing No. A.P. 9W 9087 evidenced under Ex. A13. The police after investigation laid charge sheet against the driver of the lorry in C.C. No. 641/2004 evidenced under Ex. A14. He was operated 13.03.2004 by an orthopedic surgeon of Osmania General Hospital, Hyderabad. He issued a certificate evidenced under Ex. A22 that Partial Permanent disability in about 40%.
14. It is an undisputed fact that the complainant having lost his left leg in the accident that took place on 08.03.2004, did not inform either to respondent no.2/opposite party no.2, Road Safety Club or to the appellant insurance company at any time. For the first time, in the month on 18.06.2007 he got issued a legal notice to the opposite parties. The appellant/opposite party no.1 alleged therein that it has issued legal notice for the first time on 18.06.2007 after the accident took place on 08.03.2004 and that the complaint is barred by limitation. The complainant after issuing the legal notice filed the complaint before the Dist. Forum on 28.03.2008 nearly 5 years after the accident claiming compensation.
15. Respondent no.2/opposite party no.2 Road Safety Club which has taken the insurance policy to its members as well as the appellant insurance company contended that the complaint was hopelessly barred by limitation. For the accident that took place on 08.03.2004, the complainant filed complaint on 28.03.2008, and as such was hopelessly barred by limitation under the Consumer Protection Act.
16. It is not the case of the complainant even that he had informed about the accident either to Respondent no.2/opposite party no.2 Road Safety Club or to the appellant insurance company. He did not allege anything in regard to limitation nor filed a petition u/s 24A (2) of the Consumer Protection Act to condone the delay. Obviously, in order to get over the question of limitation, he alleged that he got issued legal notice on 18.06.2007 to the appellant/opposite party no.1 and the respondent no.2/opposite party no.2 but though they have given replies but did not settle the claim and therefore the complaint was within limitation. The complainant could not prove that he became the member of respondent no.2/opposite party no.2 club through respondent no.3/opposite party no.3 chit Fund Company. No evidence whatsoever was filed in order to establish the nexus between respondent no.2/opposite party no.2 and respondent no.3/opposite partyno.3 in order to state that notice issued to the appellant/opposite partyno.1 and the respondent’s no.2 and 3/opposite parties no.2 and 3 is sufficient and it would save the limitation. The respondent no.3/opposite party no.3 filed counter denying that it was instrumental in joining the complainant as a member in respondent no.2/opposite party no.2 Road Safety Club. In fact, its contention is that it is not concerned whatsoever either with appellant/opposite party no.1 or respondent no.2/opposite party no.2. It is not known why the complainant could not issue notice or inform that he met with an accident either to appellant/opposite party no.1 or respondent no.2/opposite party no.2 before which, he could lay a claim. No doubt, he filed a certificate Ex. A1 to show that he had partial permanent disability. Under the policy, he would be entitled up to Rs. 3 lakhs for partial permanent disability provided proving permanent partial disability.
17. The important contention raised is that the complaint was not filed within the period of limitation as provided under the Consumer Protection Act.
18. Section 24A of Consumer Protection Act stipulates a limitation of two years for filing a complaint from the date of cause of action. The accident that took place on 08.03.2004. The complaint was filed on 28.03.2008, more than 4 years after the accident. The complainant sent a legal notices to the appellant/opposite party no.1 and the respondent no.2/opposite party no.2 on 18.06.2007 and 11.08.2007 and the reply of the appellant/opposite party no.1 and the District Forum took the said legal notices and reply 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 complainant as per the terms and conditions of the policy did not intimate the accident to them and the limitation for filing the consumer complaint shall be counted from the date of intimation of accident but it did not do so by the complainant and as such it clearly barred by time and the District Forum fell in error in holding to the contrary and deciding the consumer complaint on merit.
19. 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".
20. In 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) wherein 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 on21.03.1996. 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 thereafter. 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.
21. We may also mention herein that he did not follow any of the conditions laid down in the policy viz., intimating the accident within 7 days as contemplated in condition No. 8 or initiating legal action within a year as contemplated in clause No. 16. Condition No. 17 stipulates that non-compliance of above provisions would invalidate all the claims under the policy. At any rate, since the complainant failed to intimate the accident either to appellant/opposite party no.1 or to the respondent no.2/opposite party no.2 for nearly 4 years, and filed complaint subsequently, we may state the complaint is hopelessly barred by limitation.
22. We may add herein that obviously that the complainant has lost his leg in a motor vehicle accident, he can as well file a claim before the tribunal constituted under the Motor Vehicles Act if so advised. The complainant could not clutch the jurisdiction of Dist. Forum after expiry of the limitation without recourse to Section 24A (2) of the C.P. Act.
23. 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. In the circumstances discussed, supra, the point no.11 is answered in favour of the appellant/opposite party no.1 and against the respondent no.1/complainant.
In the result the appeal is allowed by setting aside the order of the District Forum and consequently the complaint C.C.No.19 of 2008 is dismissed being barred by limitation. No order as to costs.
PRESIDENT MEMBER
02.05.2018
