IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:    President

Smt.K.P.Preethakumari:   Member

Smt.M.D.Jessy:                Member

Dated this, the   21^st   day of October   2011

CC.202/2010

   (IA.No.271 /2010)

P.Rajan,

Managing Partner,

M/s.Pioneer Motors Pvt.Ltd.,

Kannothumchal                                          Complainant

1.  M/s.Bajaj Alliance General Insurance Co.Ltd.

     Pune.

2. Tata AIG General Insurance Co

    Pune.                                                       Opposite parties

O R D E R

Smt.Preethakumari,Member

            This Interlocutory application is filed under section 24 A(ii) of C.P.Act for  condoning  the delay caused in filing the complaint. The complaint is field for damages caused to the five numbers of vehicles in transit. According to the complainant they are entitled to get the claim amount, since there is a valid transit policy. the Piaggio vehicle Pvt. Ltd. has changed the tie- up of transit policy from 1^st opposite party to 2^nd opposite party and the claim arose within these intermediate period,  there was a confusion and the claim with all relevant documents was sent to  opposite party and when the complainant realized that the transit insurance was with 2^nd opposite party the claim could not be followed up and 1^st opposite party  promised that they will forward the claim to 2^nd opposite party and settle the claim and not to go for litigation  since the  all process took a long time the complaint could not  filed  in time and the delay was caused and hence the petition filed.

          Both respondents filed counter to the above interlocutory application. According to 1st respondent the petitioner’s prayer is to condone the delay of few months in filing the complaint and hence he has no consistent case and not stated specifically what exactly the reason which prevented the complainant from filing the complaint within statutory period and not specifically stated the exact delayed days also. It shows that the applicant is not even aware the days of delay in filing the compliant. The reason stated in the affidavit is hardly sufficient and convincing reason to condone the delay and he has not explained the delay and reason for delay satisfactorily. According to  1^st opposite party there is  a delay of more than 3 years beyond the statutory period. In order to substantiate this contention, the 1^st opposite party has sited different rulings of  Hon’ble Apex court also.

          2^nd respondents also filed counter stating that the actual period to be condoned  is 1104 days and he has not mentioned any specific reason for condo nation of delay and not even mentioned and aware  the days of delays to be condoned.  The reasons mentioned are insufficient for condoning the delay and hence the petition to condone the delay is liable to be dismissed.

          The issue raised in the above pleadings is what the delay is caused in filing the complaint and whether it can be condoned.

          In order to prove the contention the PW1 has  examined and the documents such as power of attorney, resolution, invoice copy letter issued by Piaggio vehicles, letter copy issued to Piaggio, Letter dt.12.12.07 , letter dt.14.1.08, and copy of lawyer notice etc. are produced and marked as Exts.A1 to A8.

          The petitioner’s contention is that the delay of a few months has to be condoned. According to 1st opposite party delay is more than 3 years and according to 2^nd opposite party 1104 days to be condoned. According to the complainant cause of auction arose on 7.5.07 and 29.10.07 when the complainant came to know regarding the change of insurance  tie-up M/s.Piaggio Vehicle and opposite parties and on  19.3.08 the date of lawyer notice. But in Murari Woolen Mills Ltd. Vs. United India Insurance Company Ltd., and other, the Hon’ble National Commission held that  cause of action to file complaints within the meaning of section  24 A of Consumer protection Act, 1986, when the claim was repudiated by Insurance company and not  on the date of accident. But as far as these case is concerned, neither the complainant nor the opposite parties  stated that the claim was repudiated or it was rejected on such and such date. Respondents 1 and 2 have no such case that the claim is already repudiated. Section 24A of C.P Act, provides (i) “The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

          (2)Notwithstanding anything contained in section (1) a complaint maybe entertained after the period specified in subsection(1) if the complainant satisfies the District Forum, the State Commission or the National Commission as the case may be, that he had sufficient cause for not filing the complaint within such period.

          Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum as the case may be records the reasons for condoning such delay.

          As per Ext.A5, which is a letter issued by Piaggio vehicles Pvt. Ltd. dt. 29.10.07, they informed the complainant that the TATA AIG has closed the claim as no claim, since the Pioneer Motors have not submitted required documents. Admittedly the Piaggio vehicles Ltd. is the insured. It is true that the above said letter informing that the claim was closed is not before the Forum and the above said Piaggio vehicle is not a party also.

Even if it is so it is a fact that the Ext.A5 letter is addressed to the complainant and he has produced the document before the Forum.  So this Ext.A5 document cannot be ignored. More over after knowing the fact that  2^nd opposite party is the insurer and not 1^st opposite party, issuing letter again and again for allowing claim is meaningless. So it is a fact that the complainant has knowledge about the closing of claim, even though he was not aware of the exact date of closing the claim. Anyway this Ext.A5 letter is issued to the complainant by Piaggio through courier and it is sure that the complainant has received the same within two or three days. So we can consider the date of knowledge is during 1^st November 2007 and this day can be considered as cause of action. As per section 24(A)(1) of the CP Act, the case has to be filed on or before 1^st November 2009. But it was seen filed on 20.7.2010 and hence there is a delay of 261 days is caused in filing the complaint.

          Then the next question is whether the complainant had satisfactorily explained each and every day of the above stated 261 days. The reason stated by the complainant is that since M/s. Piaggio Vehicle Pvt.Ld. has changed the tie up of transit policy from 1^st opposite party to 2^nd opposite party and the claim arose within the intermediate period there was a confusion and the claim with all the relevant documents was sent to 1^st  opposite party, the claim could not be followed up and 1^st opposite party promised that they will forward the claim to 2^nd opposite party and settled the claim. But in order to prove the above contention complainant has not produced any documents. Moreover if the documents are with 1^st opposite party, the complainant has opportunity to take steps to call for such documents through the Forum from 1^st opposite party. So this averment is not a genuine one. The other reason stated by the complainant is that it is a registered company having huge volume of business. Since it is a registered company and having huge volume of business all are done by the officials of the company and not by a single individual. So this contention is also not explanatory for the delay caused in filing the same. The consumer Fora  has a power to condone the delay only if sufficient cause is shown. The above stated reasons are not sufficient and explanatory. In  Gopinathan Pillai Vs. State of Kerala and another, the Hon’ble Apex court held that when a mandatory provision is not complied with and when the delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay only  on sympathetic ground which was reported in (2007) 2 Supreme Court cases 322. More over in state Bank of India Vs B.S.Agriculture Industries the Hon’ble Apex court held that Section 24A of the Act is peremptory in Nature and requires the consumer Forums 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 24 A is a sort of legislative command to the consumer Forum to examine on it sown whether the complaint has been filed within the limitation period prescribed there under. As a mater 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 and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. It is the duty of the Forum to take notice of section 24 A and give effect to it. So from the above discussion e are of the opinion that the complainant has failed to put forwarded and convince the Fourm sufficient reason for delay and hence the petition is liable to be dismissed and passed order accordingly.

          Since the petition for condonation of delay dismissed, the complaint also stands dismissed no order as to cost.

                            Sd/-                                   Sd/-                                                Sd/-

                President                    Member                              Member

APPENDIX

Exhibits for the complainant

A1. Copy of the power of attorney

A2. Copy of the minute book of the meeting of the Board of Directors of

      Pioneer Motors

A3.Copy of the invoice

Exts.A4 & A5.Letters dt.7.5.07 &29.10.07 sent by PIAGGIO TO Pioneer

                   Motors Kannur

A6 & 7.  Letter dt.12.12.07 & 14.1.08 sent by Pioneer Motors to OP1.

A8.Copy of the lawyer notice sent to OP

Exhibits for the opposite party: Nil

Witness examined for the complainant

PW1.M.P.Janardhan

                                                                                    /forwarded by order/

                                                                   Senior Superintendent

Consumer Disputes Redressal Forum, Kannur