ORDER

S. Jaspal Singh Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties on the averments that complainant is resident of above said address and is an agriculturist and doing this work at Village Boparai, Tehsil Bholath, District Kapurthala and the complainant is the member of the opposite party No. 4 i.e. Agriculture Society Village Bajaj, Tehsil Bholath, District Kapurthala since long time. The complainant was having account No. 967 and bank account No. 239 with opposite party No.4. At that time, when the complainant was enrolled as a member with opposite party No.4, the opposite party No. 4 assured that he will be insured with opposite parties No. 1 and 2 and in case of any occurrence/ accident, insurance company will be liable and then complainant agreed to do so and he is insured with opposite party No. 1 and 2 vide policy No. 10670533. On 09.08.2012, when the complainant was cutting cattle fodder through Toka Machine, then unfortunately both hand of the complainant were cut in the fodder cutter machine ( Toka Machine). The son of the complainant got treated his father from Neelam Memorial Sharma Hospital Butran, Tehsil Bhogpur, District Jalandhar and for about a week he was admitted in the hospital for his treatment and both the hands of complainant were cut in the fodder cutter machine and now he is permanently disabled. The complainant in unable to do any work in future. The son of the complainant informed about the occurrence to the opposite party No.4 and requested it to send the disability claim of the complainant to opposite party No.2 insurance company. The opposite party No.4 sent his file along with all the original documents and copy of disability certificate to opposite party No.3 who sent the claim file to opposite party No. 1 and 2. The complainant approached the opposite parties regarding his claim but they lingered on the matter on one pretext or the other and till date no claim has been sanctioned. On such like averments, the complainant has prayed for directing the opposite parties to release the disability claim amount to him and further to pay him Rs. 30,000/- spent by him on his treatment. He has also claimed compensation and litigation expenses.

2. Upon notice opposite parties appeared and filed their written replies. In its written reply the contesting opposite party No. 1 and 2 took up preliminary objections regarding maintainability, late intimation etc. On merits, they pleaded that the answering opposite party issued Group Janta Personal accident policy bearing number APG/10670533/P3/09/D61212 in the name of the opposite party No.3. Under the said policy 14542 unnamed members were insured for an amount of Rs. 50,000/- per person. Under the policy, in case of accidental death 100% sum assured was payable. The said policy was valid for the period 27.09.2011 to 26.09.2012. The policy was issued subject to its terms & conditions. They further pleaded that the answering opposite party received intimation regarding the alleged occurrence on 17.11.2012 with a delay of 100 days. Thereafter, the claim number C0301950 was allotted. It is totally wrong that it was assured to the complainant that the claim amount is payable. The amount is payable as per terms & conditions of the policy. However, the claim of the complainant was scrutinized and found that the claim of the complainant is out of the purview of the policy and there is a delay of 100 days. Thereafter the claim of the complainant was repudiated vide letter dated 19.11.2012 as per terms & conditions of the policy and intimation regarding the same was duly given to the opposite party No.3. They denied other material averments of the complaint.

In its separate written reply opposite party No.3 pleaded that it immediately lodged the claim with opposite party No. 1 and 2 vide letter dated 25.09.2012 and all the documents required for settlement of the claim were sent alongwith the said letter. The payment has to be made by opposite party No. 1 and 2. The opposite party No. 1 and 2 has illegally rejected the lawful claim of the complainant vide letter dated 19.11.2012.

In its separate written reply, opposite party No.4 pleaded that after receiving information it immediately intimated to opposite party No.3 and there was no delay on its part. It further pleaded that complainant is member of opposite party No.4 and is insured with opposite party No. 1 and

3. Counsel for the complainant has tendered evidence affidavits Ex. CW1 to Ex. CW4 alongwith documents Ex. C1 to C9 and closed his evidence.

4. On the other hand, learned counsel for the opposite party No. 1 and 2 has tendered evidence affidavit Ex. OP1 and 2/1 to Ex. OP1 and 2/3 and closed his evidence. Counsel for opposite party No. 3 has tendered evidence affidavit Ex. OP3/1 and closed his evidence. Sh. Gurjit Singh Secretary of opposite party No.4 has tendered his evidence affidavit Ex. R4/DW1 and closed his evidence.

5. We have carefully gone through the record and also heard learned counsel for the parties.

6. Ex. OP1 and 2/1 is policy schedule. In the policy document, the details of risk cover are mentioned as “death due to accident : 100% sum insured, accidental death”. It is further mentioned that all other standard terms and conditions of the JPA policy will be applicable. Counsel for the opposite party No,. 1 and 2 contended that under the policy only risk of the accidental death was covered but in the present case, the complainant only suffered permanent partial disability which was not covered under the policy. He further contended that intimation regarding the occurrence was also received late. He further contended that since the risk was not covered under the policy, as such, the claim has rightly been repudiated vide letter dated 19.11.2012 Ex. OP1and 2/2. He further contended that in the policy document, it is specifically mentioned that all other standard terms and conditions of the JPA policy will be applicable. He contended that as per condition No. 14 of the policy, the complaint was required to be filed within 12 months after rejection of the claim of the complainant but the same has been filed after 12 month from the rejection letter dated 19.11.2012 and as such the claim is also time barred and as per above condition benefits under the policy stand forfeited.

7. Counsel for the complainant contended that in the terms and conditions EX. OP1 and 2/3 permanent disability is mentioned and as such the disability shall also be deemed to have been covered under the policy. He further contended that under the Consumer Protection Act the period of limitation is two years and the present complaint has been filed within two years from the date of rejection of the claim of the complainant vide letter dated 19.11.2012. Ex. OP1 and 2/2.

8. We have carefully considered the contentions advanced by learned counsel for both the parties.

9. From the perusal of policy document, Ex. OP1 & OP2/1 it is evident that the risk covered under the policy was only of accidental death. The permanent or partial disability was not covered under the policy in question. The mentioning of the fact that all other standard terms and condition of the JPA policy will be applicable does not mean that permanent disability was also covered under the policy. It means that only terms and conditions which are relevant to the risk covered under the policy shall apply. Since the risk is not covered under the policy as such, the opposite party No. 1 and 2 rightly repudiated the claim of the complainant. No doubt the opposite party No. 1 and 2 have not taken specific objection regarding limitation but question of limitation is legal and can be raised at any time. As per section 3 of the Limitation Act, even if the limitation has not been set up as a defence the court or in this case the forum can consider the same. Ex. OP1 and 2/3 contains terms and conditions of the policy. Condition No. 14 lays down as under:-

“If any claim is made and rejected and no court action or suit commenced within 12 months after such rejection or, in case of arbitration taking place as provided therein, within 12 calendar months after the Arbitrator or Arbitrators have made their award, all benefits under this policy shall be forfeited”.

As per condition No. 14, the complainant was required to file the present complaint within 12 months after rejection of his claim. The claim of the complainant was repudiated vide letter dated 19.11.2012 and whereas the present complaint was filed on 8.8.2014 i.e. after one year. No doubt, the period of limitation for filing the consumer complaint is two years.

“In M/s Global Ispat Ltd Vs. Orienal Insurance Company, Firt Appeal No.13 of 2013 decided by Hon'ble National Commission on 10.9.2014, in similar circumstances while interpreting similar condition of the policy, it has been held as under:-

"6. Clause 6(ii) of the general conditions of the policy reads as under:-

"6(ii) In no case whatsoever shall be company be liable for any loss or damage after the expiry of 12 months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration; it being expressly agreed and declared that if the company shall disclaim liability for any claim hereunder and such claim shall not within 12 calender months from the date of the disclaimer have been made the subject matter of a suit in a court of law then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder.

7. Aforesaid clause makes it clear that complainant was under obligation to initiate proceedings for recovery of repudiated amount within 12 months from repudiation. Learned State Commission after citing many judgments of Apex Court rightly observed as under:-

"14.3. In Himchal Pradesh State Forest Co.Ltd, (2009) 2 SCC 252, the case of Vulcan Insurance Co.Ltd, (supra), Food Corporation of India Vs New India Assurance Co.Ltd(supra) and National Insurance Co.Ltd Vs Sujir Ganesh Nayak & Co. & anr, (supra) have again been considered by the Apex Court and it has been noted that in Sujir Ganesh Nayak & Co.& Anr, (supra) to which primary reference was made by the learned counsel for the parties that while dealing with an identical situation where a contract contained a provision prescribing a period of limitation shorter than that prescribed by the Limitation Act, it was held that the contractual provision was not hit by section 28 as the right itself had been extinguished. It was contended before the Apex Court that in the light of certain observations in Food Corporation of India case (supra) the observation in Sujir G.Nayak's case(supra) were required reconsideration but the Hon.Supreme Court found no merit in hat plea for the reason that in Sujir G.Nayak case, Food Corporation of India case was specifically considered and Vulcan Insurance Co.'s case too had been relied upon.

14.4. Thereafter, the Hon.Supreme Court referred to condition 14 in Sujir G. Nayak's case which provided that the company would not be liable for loss or damage from happening of loss or damage unless the claim was the subject of pending action or arbitration and held that while construing that provision vis-a-vis Section 28 of the Contract Act and the cases cited above and several other cases, in addition, it held that:-

16. From the case law referred to above the legal position that emerges is that an agreement which in effect to curtail the period of limitation and prescribes a shorter period than that prescribed by law would be void as offending section 28 of the Contract Act. That is because such an agreement would seek to restrict the party from enforcing his right in court after the period prescribed under the agreement expires even though the period prescribed by law for the enforcement of his right has yet not expired. But there could be agreements which do not seek to curtail the time for enforcement of the right but which provide for the forfeiture or waiver of the right itself if no action is commenced within the period stipulated by the agreement. Such a clause in the agreement would not fall within the mischief of section 28 of the Contract Act. To put it differently, curtailment of the period of limitation is not permissible in view of section 28 but extinction of the right itself unless exercised within a specified time is permissible and can be enforced. If the policy of insurance provides that if a claim is made and rejected and no action is commenced within the time stated in the policy, the benefits flowing from the policy shall stand extinguished and any subsequent action would be time barred. Such a clause would fall outside the scope of section 28 of the Contract Act. This, in brief, seems to be the settled legal position".

10. It was further held that " in the case at hand the complainant was required, in terms of clause 6(ii) of the general conditions of the policy, to prefer the claim within 12 calendar months from the date of the disclaimer or else the claim for all purposes was deemed to have been abandoned or the right extinguished and the liability ceased. The complainant's claim is deemed to have been abandoned on completion of 12 months from 8.10.2009 and it could not have been revived or extended by sending a legal notice. The complaint therefore, deserves to be dismissed, as not having being filed within the period stipulated by clause 6(ii) of the policy and as per law laid down by the Apex Court in various decisions cited herein above and ending with Himachal Pradesh State Forest Co.Ltd, (supra). As complainant has not filed complaint within period of 12 months from the date of repudiation of part of the claim, complaint filed by the complaint before State Commission was barred by limitation and complainant was not to get benefit of limitation provided under section 24(A) of Consumer Protection Act and learned State Commission has not committed any illegality in passing the impugned order and appeal is liable to be dismissed".

11. Such a condition or clause in the policy has been held to be valid by Hon'ble Supreme Court in HP State Forest Company Ltd Vs. United India Insurance Co.Ltd, 2009(2) CLT 19.

12. So from the law laid down by Hon'ble National Commission and Hon'ble Supreme Court in the above cited authorities, it is clear that the above said condition no.14 in the policy in question is valid and as present complaint was not filed within one year of repudiation of claim by opposite parity No.1 insurance company, as such the present complaint is time barred and liable to be dismissed as such.

13. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.