BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 17^th DAY OF FEBRUARY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. The complainant seeks the following reliefs against the OPs:-

(a) Allow the complaint and direct the OP to pay the IDV value of Rs.10,00,000/- along with interest thereof, towards the coverage of insurance agreed by the OP.

(b) Award compensation of a sum of Rs.1,00,000/- as damages towards the negligence, deficiency of services and towards mental agony and torture meted out to the complainant and

(c) Award cost of the proceedings and pass such other order as this Hon’ble Forum may deem fit to grant in the interest of justice and equity.

 2. The case set up by the complainant in brief is as under:-

The complainant being the registered owner of Mini Bus bearing registration No.KA-53-C4212 insured the vehicle with OPs for Rs.10,00,000/- by paying required insurance premium.  The policy was in force from 11.05.2017 to 10.05.2018.

3. The complainant also contends that on 14.09.2017 at about 4.00 PM, the insured vehicle met with an accident while returning after dropping the children.  This fact of accident was conveyed to the OPs. He has obtained estimated quotation of the cost of repair at Rs.7,00,000/- and approval for payment of Rs.5,74,020/- issued by the OP without paying additional damage.

4. Even though, OP is liable to pay advance repair costs.  But, failed to pay the same. Therefore, the complainant was constrained to sell the vehicle for Rs.3,40,000/-. The OPs failed to settle the claim of the complainant.  This act of the OPs amounts to deficiency of service.  Hence, this complaint.

5. After receipt of notice, the OPs appear and file version.  The complaint is not maintainable as complainant had filed complaint No.1192/2018 before the 1^st Additional District Consumer Disputes Forum which came to be dismissed on 20.06.2019 on merits.  There is no cause of action to file this complaint.  The complaint is barred by time as it is not filed on or before 14.09.2019 from the date of occurrence of accident. Issuance of legal notice dated 21.02.2018, does not give any right to the complainant to file this complaint. They request to dismiss the complaint.

6. The complainant files affidavit evidence and relies on six documents.  The affidavit evidence of official of OPs and surveyor have been filed on behalf of the OPs.  The OPs rely on 13 documents.  

7. The following points arise for our consideration as are:-

1. Whether the complaint is barred by limitation?
2. Whether the complainant proves deficiency of service on the part of OPs?
3. Whether the complainant is entitled to relief mentioned in the complaint?
4. What order?

8. Our answers to the above points are as under:

       Point No.1:  In the affirmative

      Point Nos.2 and 3: Do not survive for consideration

      Point No.4: As per final orders

REASONS

9. Point No.1:  In order to appreciate the contention of the respective parties, it is relevant to refer say of both the parties.  According to the complainant, the cause of action arose to the complainant on 14.09.2017, specifically on the date of service of notice dated 23.02.2018 and 20.06.2019 after disposal of complaint No.1192/2018.  Whereas, OPs specifically contend that the complaint should have been filed within two years from 14.09.2017 and complaint filed on 20.02.2020 is barred by limitation.
10. This is a complaint under Section 12 of the C.P.Act. As per Section 24(A) of C.P.Act, 1986, the complaint should be filed within two years from the date cause of action.  However, the complaint could be filed even after expiry of two years with an application to condone the delay by furnishing sufficient cause.  But, in the present case on hand, the complainant has not filed any application under Section 24(A)(2) of the C.P.Act, 1986.
11. The complainant states that the complaint is within time, in view of service of legal notice dated 21.02.2018.  It is settled proposition of law that the issuance of notice of subsequent dates does not save the limitation. 
12. It is relevant to refer the judgement reported in I (2015) CPJ 105 (NC) in the matter between Pappu Mangaratanam Vs. Sai Sha Finance and Chits and another, it is held that subsequent issue of legal notice, do not save the limitation.  In the present case on hand, the period of limitation starts from 14.09.2017 and complainant was supposed to file the complaint on 14.09.2019.  The issuance of subsequent notice by the complainant on 21.02.2018 and disposal of complaint No.1192/2018 on 20.06.2019 do not save the limitation.
13. Further it is relevant to refer the judgement reported in 2020 (1) CPR 265 (NC) in the matter between Vikalp Mohan and another Vs. Umang Realtech Pvt. Ltd., and others. As per Section 24(A) of C.P.Act, 1986, the complainant yet to be filed within two years from the date of cause of action.  Even though, the cause of action to file the complaint arose to the complainant on 14.09.2017 and complainant was supposed to file complaint on or before 14.09.2019.  But, complaint filed subsequent to thereafter 20.02.2020 without any application under Section 24(A) of C.P.Act, 1986, is not maintainable.
14. The complainant also states that Sathyanarayana Educational Trust filed a complaint in CC 1192/2018 which came to be disposed on technical ground on 20.06.2019 and thereby, the complaint filed within two years from 20.06.2019 is within limitation. 
15. Even though, the OP has produced the copy of the order in CC 1192/2018 dated 20.06.2019 under Ex.R.13.  This order indicates that one Sathyanarayana Educational Trust filed a complaint against present OPs for similar reliefs.  The complaint of Sathyanarayana Educational Trust came to be dismissed that the complainant Sathyanarayana Educational Trust was not the consumer.  It is relevant to note that earlier proceeding was not initiated either by the present complainant or by the registered owner of the vehicle.  Therefore, the complainant can not take benefit of order dated 20.06.2019.  No time was spent in any proceedings initiated by the complainant prior to filing this complaint.  Therefore, the order in complaint No.1192/2018 does not help the complainant.  The complaint is barred by limitation. On this ground alone, the complaint requires to be dismissed.
16. Point Nos.2 and 3:- Even though, both parties have produced abundant evidence on merits of the case.  It is settled preposition of law that when complaint is to be dismissed on point of limitation, merits of the case cannot be considered.  Therefore, these two points do not survive for consideration.
17. Point No.4:- In view of our reasoning on point No.1, complaint requires to be dismissed as barred by limitation.  The complainant has not shown sufficient cause to condone the delay in filing the complaint by filing application under Section 24(A)(2), the complaint requires to be dismissed as barred by limitation.     We proceed to pass the following 

  O R D E R

1. The complaint is dismissed as barred by limitation.
2. The parties are directed to bear their own costs.   

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 17^th day of February, 2022)

Documents produced by the Complainant which are as follows:-

Documents produced by the OP Nos.1 and 2 which are as follows: