BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.
Complaint. No.260 of 2012
Date of instt.22.05.2012
Date of order: 18.02.2015
.
M/s Jagdamba Cattle Feeds Industries, village Jarifabad ,Kaithal road, Karnal through Sh.Pankaj Kumar son of Sh.Ram Parkash resident of House no.225-C, Purana Char Chaman, Karnal. .
………Complainant.
Vs.
1.Bajaj Alianz General Insurance Co.Ltd.SCO No.139-140, Sector 9-C, Chandigarh through its Manager.
2.Bajaj Alianz General Insurance Co.Ltd. Branch Office at Sector 12, Opp.Mini Sect. through its Branch Manager. Karnal
………Opposite Parties.
Complaint U/s 12 of the Consumer
Protection Act.
Before Sh.Subhash Goyal……. President.
Sh.Subhash Chander Sharma……….Member.
Present Sh.G.S.Virk Advocate for the applicant/complainant.
Sh.Rohit Gupta Advocate for the Ops.
ORDER:
By this order we shall dispose off an application filed by the Ops u/s 11 and 26 of the Consumer Protection Act for dismissal of the complaint.
2. The brief facts of the present complaint are that the complainant has filed the present complaint against the Ops u/s 12 of the Consumer Protection Act on the allegations that a theft had taken place in the premises of the complainant on 15.4.2004 and he reported the matter to the police on the basis of which FIR No. 352 dated 5.12.2004 u/s 457/380 IPC was lodged and the articles worth Rs.3,15,000/- were stolen .The said premises of the complainant was insured with the OP w.e.f. 12.12.2003 to 11.12.2004 vide insurance policy No. OG-04-1201-4001-00001157 and the complainant reported the matter to the Ops but in vain. The complainant has also tendered his affidavit in evidence in support of the contents of the present complaint.
2. On notice the Ops appeared and filed application for u/s 11 and 26 of the CPC for dismissal of the complaint alleging that the claim of the complainant was processed and settled in May, 2005 in full and final settlement and that the present complaint was hopelessly barred by limitation.
3. The complainant filed reply to the said application refuting allegations made in the application and has alleged that the complaint is maintainable because the premises from where the articles were stolen is situated at Karnal and payment of installments was made to the Ops at Karnal. It was denied that any claim was settled by the OP.
4. We have heard the learned counsel for the parties and have gone through the case file very carefully.
5. Therefore, from the facts and circumstances of the case, evidence on the file and the arguments advanced by the learned counsel for the parties, it emerges that the complainant has filed the present complaint against the Ops alleging deficiency in services on the ground that that a theft had taken place in the premises of the complainant on 15.4.2004 and he reported the matter to the police on the basis of which FIR No. 352 dated 5.12.2004 u/s 457/380 IPC was lodged that the articles worth Rs.3,15,000/- were stolen .The said premises of the complainant was insured with the OP w.e.f. 12.12.2003 to 11.12.2004 vide insurance policy No. OG-04-1201-4001-00001157 and the complainant reported the matter to the Ops but in vain
6. However, as per the contention of the Ops the claim of the complainant was processed and was paid in full and final settlement by the Bajaj Alianz General Insurance Co.Ltd. Chandigarh in May, 2005 and no cause of action can be said to have taken place within the territorial jurisdiction of this Forum and as such the complaint itself was not maintainable and moreover, the complaint was hopelessly barred by limitation as the alleged theft had taken place on 15.4.2004 and the present complaint has been filed on 22.5.2012 i.e. after the expiry of eight years and as such the same was barred by limitation.
7. Therefore, from the evidence and circumstances of the case it is evident that premises of the complainant was insured with the OP w.e.f. 12.12.2003 to 11.12.2004 and during the subsistence of the said policy a theft had taken place in the premises of the complainant and the complainant reported the matter to the police on the basis of FIR No. 352 dated 5.12.2004 u/s 457/380 IPC was registered and thereafter the final report u/s 173 Cr.P.C. was submitted by the Investigating Agency and recovery of stolen articles was not affected. The Ops have alleged that the claim has already been settled in May, 2005. However, there is no document on the file in order to show any settlement regarding the claim between the parties.
8. However, the present claim is hopelessly barred by limitation u/s 24 –A of the Consumer Protection Act because the alleged theft had taken place on 15.4.2004 and the present complaint has been filed on 22.5.2012 i.e. after the expiry of eight years and as such the same was barred by limitation.
There is nothing on the file in order to infer that there were reasonable circumstances to condone the delay in filing the complaint. Even there is no application u/s 24-A of the Consumer Protection Act on the file to condone the delay. Therefore, in the absence of any such evidence and in the absence of any satisfactory explanation for condonation of delay in filing the present complaint, the same is hopelessly barred by limitation.
Section 24-A Limitation period
(1) 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
Notwithstanding anything contained in sub-section (1) a complaint may be entertained after the period specified in sub-section (1) if the complainant satisfied 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 its reasons for condoning such delay.
In Union of India and Another Vs.British India Corporation Ltd.and others (2003) 9 SCC 50, while dealing with an aspect of limitation, the court held that the question of limitation was a mandate to the forum and, irrespective of the fact whether it was raised or not, the forum must consider and apply it.
7. In Haryana Urban Development Authority Vs. B.K.Sood, (2006) 1 SCC 164, while dealing with the same provision viz Section 24-A of the Act, 1986, the Hon’ble Apex Court has also held as under:
Section 24-A of the Consumer Protection Act, 1986(referred to as the Act hereafter) Expressly casts a duty on the Commission admitting a complaint to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen.
The Section debars any for a set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen. Neither the National Commission nor the State Commission had considered the preliminary objections raised by the appellant that the claim of the respondent was barred by time.
The Hon’ble Apex court in case State Bank of India Vs.M/s B.S.Agriculture Industries AIR 2009. Supreme Court , 2010 has held that Forum should not admit complaint beyond limitation.
In Bikram Dass Vs.Financial Comissioner and others (AIR 1977, Supreme Court, 2221, the Hon’ble Apex Court has held that “ A litigant who is not vigilant about his right must explain every day’s delay.
Similar view has been taken by the Hon’ble National Commission in cases K.G.Kumaran Vs. Dr.Santharam Shetty and others 2003(2) CPR 81 (NC) and Additional Director Central Govt.Health Scheme and ors. Versus S.S.Ramchandran 2011 ()2)CPR 33 (NC)
The Hon’ble National Commission in case Mahinder Singh through GPA Nitin Kumar Vs. HUDA has held that Section 24-A is pre-empptory in nature and requires the 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.
Same view has also been taken by the Hon’ble National Commission in case Smt.Suresta Sharma and ors Vs. Shri Piar Chand 2008(3) CPR 334 (NC).
Hon’ble National Commission in the judgment M.S.Subramanjam Vs. Institute of Costs and Works Accounts in India 2008(4) CPR 360 has held that Exchange of correspondence would not extend period of limitation.
The Hon’ble National Commission in case Punjab Urban Development Authority and another Vs.S.Gurjinder Singh and another 2004(3) CPR 122 (NC) has held that Section 24-A-Limitiation- complete bar on admitting a complaint if filed beyond two years of date of cause of action.
8. Therefore, after going through the above discussions, we are of the opinion that the cause of action if any had accrued in the year of 2004 when the theft took place in the premises of the complainant and as such the complaint was liable to be presented within two years of cause of action but in the instant case the complaint has been filed on 22.5.2012 and as such we hold that the complaint was barred by time in view of the provisions of Section 24-A of the Consumer Protection Act and as such the application for dismissal of the complaint is accepted and the present complaint is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.
Announced
18.02.2015 (Subhash Goyal)
President,
District Consumer Disputes
Redressal Forum, Karnal.
(Subhash Chander Sharma)
Member.
Present Sh.G.S.Virk Advocate for theapplicant/ complainant.
Sh.Rohit Gupta Advocate for the Ops.
Arguments for dismissal of the complaint heard. Vide our separate order of the even date, the application has been accepted and the main complaint has been dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.
Announced
18.02.2015 (Subhash Goyal)
President,
District Consumer Disputes
Redressal Forum, Karnal.
(Subhash Chander Sharma)
Member.
