ADDITIONAL PUNE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT PUNE (BEFORE :- PRESIDENT :- Smt. Pranali Sawant ) MEMBER :- Smt. Sujata Patankar ) ************************************************************ Complaint No. : APDF/351/2008 Date of filing :- 12/12/2006 Date of decision :- 19/09/2011 Mr. B.N. Zalpuri, ) R/o :- C/o Mr. P.N. Kaul, ) 8, Hadapsar Industrial Estate, ) Pune. )… COMPLAINANT : versus: 1. The National Insurance Co.Ltd., ) Through its ) Divisional Manager, ) Mr. R.S. Dandekar, ) 586, Sadashiv Peth, ) Pune – 30. ) ) 2. Deputy Manager, ) National Insurance Co.Ltd., ) 586, Sadashiv Peth, ) Pune - 30. )… OPPONENTS For Complainant : Adv.Smt. S.R. Chougule / Adv. Shri. Kelkar. For Opponents : Adv. Shri. R.P. Bafana. ************************************************************ Per : Hon’ble President, Smt. Pranali Sawant //JUDGMENT// 1) The present complaint was filed before the Pune District Consumer Disputes Redressal Forum bearing Complaint No.: PDF/573/2006. However by order of the Hon’ble State Consumer Disputes Redressal Commission, Mumbai the matter was transferred to Additional Consumer Disputes Redressal Forum, Pune bearing complaint No. APDF/ 351/2008. 2) This is the case wherein the Complainant has alleged deficiency in service against the Opponent Insurance Company. The facts in brief which give rise to the present complaint are as follows :- 3) The Complainant Mr. Zalpuri was resident of Jammu & Kashmir. Due to the unrest and atrocities in Jammu & Kashmir State, the Complainant and his family members were forced to come and stay at Pune with Complainant’s daughter. The Complainant could not bring his belongings, utensils and furniture along with him. So he insured his house and all his movable goods with the Opponent National Insurance Company Limited (who shall be hereinafter referred to as “Insurance Company”). After due scrutiny, the Insurance Company issued policy to the Complainant which was later on renewed from time to time. When the Complainant and his family were away from his house in the year 1994, he received a message that his house was looted and ransacked by the terrorists. The terrorists also set the house on fire. News to this effect was flashed in the newspaper by name “Kashmiri Times” dtd.7/12/1994. Accordingly, the Complainant contacted Insurance Company and conveyed the instance. From time to time, the Complainant also supplied necessary information and documents to the Insurance Company as per its demands. The Insurance Company conducted the investigation; however it did not accept the first enquiry report and appointed another surveyor for investigation. It is the allegation of the Complainant that in spite of special guidelines from the Government to settle the claims of residents of Kashmir State on priority basis, the Insurance Company failed to do so. It is the grievance of the Complainant that the Insurance Company kept on dodging the claim of the Complainant on one ground or the other and finally repudiated the same on 18/9/2006. It is the case of the Complainant that without assigning any proper and valid reason for repudiation, the Insurance Company has refused to settle the claim. After receipt of this repudiation letter, the Complainant issued a legal notice dtd. 16/11/2006 which was replied by the Insurance Company on 07/12/2006 once again refusing its liability to settle the claim. According to the Complainant, since this act of the Insurance Company of repudiating the claim without any valid ground is case of deficiency in service, he has filed the present complaint demanding the insurance amount of Rs.7,59,000/- alongwith interest and costs of litigation. The Complainant has filed affidavit and 17 documents vide exh.3 in support of his complaint. 4) On receipt the Forum’s notice, the Insurance Company appeared through Advocate and filed its say. Though the Insurance Company has accepted the fact of issuance of policy, it has denied all other allegations levelled against it. According to the Insurance Company, the present claim is hopelessly barred by law of limitation. It is contended by Insurance Company that the story put forth by the Complainant in support of his claim of movable items is not trustworthy and is totally false, narrated with an object to extract money from the Insurance Company. The Insurance Company has denied each and every statement made by the Complainant in its say and has requested the dismissal of this complaint for want of evidence. The Insurance Company has filed affidavit of its authorized representative in support of its say. 5) After filing say by the Insurance Company, the Complainant filed his claim affidavit vide exh.15 and his notes of written arguments vide exh.16. The Insurance Company also filed its written notes of arguments vide exh.19. Later on with the permission of the Forum, the Complainant filed original documents and translation of one Urdu document supported by his affidavit. Thereafter Advocate Mr. Kelkar on behalf of the Complainant and Advocate Mr. Bafna on behalf of Insurance Company were heard and the matter was posted for judgment. 6) On perusal of the complaint, say, documents on the record and the arguments advanced, following points arise for our consideration. The points and answers are as follows: Points Answers 1) Is the present complaint barred by law of limitation? … No. 2) Has the Complainant proved that Insurance Company has rendered deficient service to him? … Yes. 3) Does the complaint deserve to be allowed?… Yes. 4) What order? … As per final order. Point No. 1 (i) It has been alleged by the Insurance Company that since the present complaint has been filed in respect of the incidence which occurred in December -1994, the complaint filed in the year 2008 is barred by law of limitation. (ii) It can be seen from the say and argument of Insurance Company that it is relying heavily on ‘limitation’ as it’s main contention. The Advocate of Insurance Company has placed on record as many as 9 authorities to support his contention of limitation. The following authorities are filed on behalf of the Insurance Company. 1) 2009 (4) CPR 17 (SC) Kandimalla V/s. National Insurance 2) 2009 (3) CPR 784 (SC) State Bank Of India V/s. B.S. Agricultural Industries (I) 3) 2009 (2) CPR 257 (NC) I Seshaiah Others V/s. Standard Chartered Bank. 4) 2008 (4) CPR 487 (NC) Mr. Sudhakar R. Kulkarni V/s. M/s. B.P. Developers & Builder. 5) 2008 (4) CPR 360 (NC) M.S. Subramaniam V/s. Institute & Cost & Works Accountant. 6) 2009 (2) CPR 303 (NC) Mahanagar Tele.Nigam V/s. Shri. V.K. Ahuja 7) 2009 (2) CPR 35 (NC) Chandighar Hsg.Board V/s. Krishna Kumar Goel. 8) New India Assurance Co.Ltd. V/s. Dr. Baburao Bapuji Tanpure (M.S.) 9) M/s. Kerala Agro Machinery Co.Op.Ltd. V/s. Bijoy Kumar Roy 2002 (3) CPR 107 (SC) (iii) As far as authorities referred at Sr.Nos. 3,4,5,6 are concerned, it can be seen that these authorities are different in respect of facts of case and hence ratio laid down in these cases can’t be made applicable to the case in hand. As far as authorities filed at Sr.Nos. 2, 7 are concerned it can be seen that all these cases refer to peremptory nature at S.24of Consumer Protection Act. There can’t be any dispute on this point but this authority will not come to aid of Insurance Company unless it proves positively that complaint is barred by law of limitation. (iv) On perusal of authority filed at Sr.No.1, it can be seen that in the case before Hon’ble Supreme Court the incidence had occurred on 22/03/1988 and the Complainant had applied for claim form on 06/11/1992 i.e. much beyond the period of limitation and filed complaint before Forum when Insurance Company refused to give claim form. Whereas in the present case the incidence occurred in December 1994 and the Complainant submitted his claim form in December – 1994 to Insurance Company and when Insurance Company repudiated the claim in the year 2006 filed the complaint before Forum immediately in the year 2006. In view of difference in the facts of these two cases on material point, in our opinion, the ratio laid down in case filed at Sr.No.1 can’t be made applicable to the present case. (v) On perusal of the authority filed at Sr.No. 8, it can be seen that the Hon’ble State Commission, Maharashtra has held that since liability was not acknowledged by Insurance Company, it was not necessary for Complainant to wait beyond period of limitation and hence the complaint was held to be barred by law of limitation. The Hon’ble State Commission has relied upon the ratio laid by Apex court in the matter of M/s. Kerala Agro M. Company which authority is filed by the Insurance Company at Sr.No.9. (vi) In our opinion, a very important point of difference between the case in hand and case before Apex Court & Hon’ble State Commission needs to be noted. In the case in hand the Complainant had taken a composite policy in respect of his house and movables. The Insurance Company has allowed the claim of the Complainant in respect of his house and repudiated his claim in respect of movable. Thus the Insurance Company allowed part claim of Complainant and then has taken up the plea of limitation in respect of claim repudiated by it rising out of the same policy. (vii) It can be seen from the abovementioned discussion that the facts of the case in hand and the facts in case before Hon’ble Supreme Court and Hon’ble State Commission are different on material point and hence ratio laid down in these cases can’t be made applicable to the case before Forum. (viii) In addition to this, it has to be noted that in the case before Hon’ble Supreme Court, the Company had denied its liability to repair the parts of vehicle in the year 1989 and hence cause of action for the Complainant was held to start from the year 1989 and thus the complaint filed in the year 1994 was held to be barred by limitation. Whereas in the case before Forum the Insurance Company has denied its liability to pay the insured amount in the year 2006 and hence, in the present case, the cause of action would start from 2006. (ix) In view of the contention of the Insurance Company, in respect of period of limitation, if we peruse the complaint application, it can be seen that the Complainant has specifically mentioned in para 20 of his complaint that his claim was repudiated on 18/9/2006. This contention of the Complainant is not denied by the Insurance Company. After repudiation of the claim in the year 2006, the Complainant immediately filed his complaint before Pune District Consumer Disputes Redressal Forum in the year 2006. Since the matter was kept in Sine die before Pune District Consumer Disputes Redressal Forum, the said matter was transferred to Additional District Consumer Disputes Redressal Forum, Pune in the year 2008 and then the notices were issued to the Insurance Company in the year 2008. Taking into consideration this fact it is crystal clear that after repudiation by the Insurance Company in the year 2006, the Complainant has filed his application before the Forum well within the prescribed time limit. In any case from the abovementioned discussion it is evident that the cause of action for the complaint would arise only after the decision of the claim by the Insurance Company which is the year 2006 in the present case. (x) The Forum has relied on following authorities for this inference. 1) Transport Corpn. of India Ltd. V/s. Velian Hydrair Ltd. II (2007) CPJ 35SC. 2) Murari Woollen Mills Ltd. V/s. United India Insurance Co.Ltd. & ors. III 2005 CPJ 118 NC. 3) Unichem Laboratories Ltd. V/s. New India Assurance Co.Ltd. & Anr. III (2006) CPJ 359 NC. In the authority filed at Sr.No.2, the incidence had occurred in the year 1982 and the Insurance Company had repudiated the claim in the year 1997 and the complaint was filed before Forum in the year 1997. Though the complaint was filed beyond period of limitation from the date of incidence, taking into consideration the fact that the claim was repudiated in the year 1997 Hon’ble N.C. held the complaint within period of limitation. In abovementioned cases the date of repudiation was considered as cause of action. Since the ratio laid down by Hon’ble N.C. in the abovementioned case squarely applies to the case in hand we have no hesitation in holding that the present complaint is not barred by limitation. (xi) Though the incidence had occurred in the year 1994, it is important to note that the Insurance Company itself took almost 12 years to take the decision in respect of this claim. In such a situation, in our opinion, the plea of limitation raised by the Insurance Company deserves to be dismissed. (xii) It can be seen from the above mentioned discussion that the Complainant has filed this complaint application within the prescribed time limit hence the point No. 1 is answered in affirmative. Point No.2 (i) The Complainant has made specific grievance in the complaint application that without assigning any valid and proper reason, the Insurance Company has repudiated the claim in respect of the movable items. If we peruse the say of the Insurance Company it can be seen that apart from denying each and every averment made by the Complainant it has not come out with the specific case raising sound defense for repudiation. It has been contended by the Insurance Company that it is difficult to believe that the Complainant left all his valuable belonging in Jammu & Kashmir and shifted to Pune. However taking into consideration the situation in which the Complainant was forced to leave Jammu & Kashmir, it is quite probable that he was unable to carry his valuable belongings to Pune. In an alarming situation any prudent man would first take all efforts to save him and his family members and then his belongings. The Complainant has specifically mentioned in his application that he was required to stay with his daughter. In such a situation, for the obvious reason it is quite probable that he was unable to carry his belongings to Pune. Taking into consideration the danger to his belongings and the price of all these belongings the Complainant took a decision to insure all his valuable items. Insurance Company issued the said policy. If we peruse the policy it can be very well seen that the Complainant has mentioned number of valuable items under Schedule 1, 2 and 3. The Insurance Company issued the policy in respect of these items and accepted the premium for number of years. The question was not raised by the Insurance Company then in respect of probability of the Complainant leaving his valuable items in Jammu & Kashmir. (ii) The only defense which Insurance Company has raised in its say, apart from point of limitation, is regarding the probability of the Complainant leaving his valuable in Jammu & Kashmir in such a critical situation. However in our opinion, this is a point to which the Insurance Company should have given a thought before issuing the policy. The very fact that the Insurance Company has issued a policy narrating number of valuable items and charging the premium accordingly itself proves that the Insurance Company has accepted the risk in respect of these items. Hence now it would not be open to the Insurance Company to deny its liability on the basis of probability. The very important point which needs to be noted at this juncture is that the Complainant has renewed the insurance policy over a period of time and the Insurance Company has accepted the premium without raising any such doubt. (iii) On perusal of the say, it can be seen that the Insurance Company has not come out with any specific case for repudiating the claim and the only point of defense in respect of probability has been dismissed by the Forum. It can be seen in this case that the Insurance Company has repudiated the claim of the Complainant without any valid and legal ground. Hence in our opinion this act of the Insurance Company is a clear cut case of deficiency in service. Accordingly we have answered the point No.2 in the affirmative. Point No. 3 (i) The Complainant has claimed Rs.7,59,000/- by way of compensation. The defense of the Insurance Company has been dismissed by the Forum and hence the application deserves to be allowed in view of the amount claimed by the Complainant. If we peruse the policy produced by the Complainant it can be seen that the Insurance Company has issued policy in respect of movables covering Sofa sets, carpets, silver thali, silver dinner set, TV, VCR, Fridge etc. amounting to Rs.7,59,000/-. The Complainant has come out with a specific case that his house was set on fire by the terrorists and all his belongings were burnt and hence he has claimed the total amount of policy of movables. Insurance Company has failed to file any evidence in respect of the actual amount of loss occurred by the Complainant. Nevertheless the Insurance Company has not come out with a specific case in respect of the amount of compensation. In such a situation, in our opinion, it would be appropriate to allow application of the Complainant and grant him compensation of Rs.7,49,000/- as mentioned in the policy except amount of Rs.10,000/- for (A) Public Liability (B) W.C. Liability for domestic servants . The Complainant is also entitled to interest @9% p.a. on this amount from January 1996. It is important to note that Insurance Company has taken 12 years to take a decision in this case. In the normal course, the Insurance Company is expected to take a decision within three months period. However taking into consideration the situation which was prevalent in Jammu & Kashmir, twelve months time should have been sufficient for the Insurance Company to take a decision, hence we have granted interest to the Complainant from January 1996 i.e. twelve months after the date of claim. (ii) Taking into consideration the delay caused by the Insurance Company to take a decision, in our opinion, the Complainant is also entitled to get a compensation of Rs.25,000/- and Rs.3,000/- for cost of litigation. Accordingly the order is passed. (iii) From the above mentioned discussion, it can be seen that the complaint deserves to be allowed hence we have answered the point No. 3 in affirmative. Point No. 4 :- Before we part with the judgment, in our opinion, one important fact needs to be mentioned. In the present case, the paper cutting of news paper and all other documentary evidence produced by the Complainant clearly prove that his house was infact burnt by terrorist and probably that’s the reason why Insurance Company has not denied the happening of this incidence in its say. On the basis of the discussion and the conclusions in point No.3 we proceed to pass the following order. //ORDER// (i) The complaint is allowed. (ii) The Insurance Company is directed to pay 7,49,000/- to the Complainant alongwith interest @9% from January 1996 till its realization. (iii) The Insurance Company is directed to pay Rs.25,000/- by way of compensation and Rs.3,000/- for cost of litigation to the Complainant. (iv) The Insurance Company is directed to comply the abovementioned order within a period of (30) days from the date of receipt of this order, failing which, the Complainant would be entitled to file appropriate proceedings under the provisions of the Consumer Protection Act, 1986 (iv) Certified copies of this order be supplied to both the parties free of costs. (Smt. Sujata Patankar) (Smt. Pranali Sawant) MEMEBR PRESIDE NT ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PUNE. Place : Pune Date : 19/09/2011
| | [ Smt. Sujata Patankar] MEMBER[ Smt. Pranali Sawant] PRESIDENT | | 
