Haryana

Karnal

CC/658/2019

M/s J.S.M. Proteins Private Limited - Complainant(s)

Versus

Branch Manager Of Iffco Tokio General Insurance Company Limited - Opp.Party(s)

Rajesh Gupta

17 Jan 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                         Complaint No. 658 of 2019

                                                          Date of instt.25.09.2019

                                                          Date of Decision 17.01.2022

 

M/s J.S.M. Proteins Pvt. Ltd., office at Behind Sector 7 oil complex, sector 33, Phoosgarh road, Karnal through its Director Radhey Sham.

 

                                                 …….Complainant.

                                              Versus

 

Branch Manager of Iffco-Tokio General Insurance Company Limited, SCO no.19-20, Hafed Building, Sector-12, Karnal.

 

                                                                      …..Opposite Party.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

              Dr. Rekha Chaudhary….Member

 

 Argued by: Shri Rajesh Gupta, counsel for complainant.

                    Shri Naveen Khetarpal, counsel for OP.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that the complainant is the Director of abovesaid company and being a Director of the complainant’s company, he is fully competent and authorized to file the present complaint. The complainant is the registered owner of one Truck bearing registration no.HR-45-B-0401, which is insured with the OP, vide policy no.-3GBVNCQ-P400 Policy #: 91816670 valid from 10.04.2015 to 09.04.2016. On 14.09.2015 the said truck met with a roadside accident and was damaged. Intimation was sent to OP in this regard. After receiving the intimation, OP appointed a surveyor namely Deepankuar Singh, who inspected the vehicle and assessed the loss.  Complainant lodged the claim with the OP, vide claim no.36361911 for a sum of Rs.2,06,865/-after completing all necessary formalities and had given requisite documents, within time without any delay. Thereafter, complainant visited the office of OP so many times and requested to disburse the insurance claim amount but OP always postponed the matter on one pretext or the other by demanding various documents from the complainant. The complainant submitted all the documents as per instructions of the OP but OP failed to settle the claim of complainant and lastly on 10.08.2019 OP flatly refused to disburse the claim amount in favour of the complainant. Then complainant sent a legal notice dated 21.08.2019 to the OP in this regard but it also did not yield any result. In this way there was a deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to limitation; cause of action and concealment of true and material facts. On merits, it is pleaded that on receiving intimation from insured regarding loss of truck, the OP appointed an IRDA approved independent Surveyor Shri Deepankur Soni, who inspected the vehicle and submitted his detailed surveyor report. On careful perusal of the report of surveyor and other documents on record, OP noticed as under:-

Complainant’s driver had applied for renewal of license on 07.07.2014, which is valid upto 06.07.2017. After careful perusal of the documents on record it is found that DL no.(4120/MKG/2014) existed in favour of Shri Mohd. Islam is in manual format. As per the circular no.TC-23/MV/2007 (PT-1) issued by the Transport Commissioner, Nagaland on 01.08.2014, I t is mandatorily required that the driving licence must be on the smart card through the national software “SARATHI” from 30.10.2019 and any license purported to have been issued by any authority in Nagaland on booklet form after 30.10.2009 is not genuine and it is further notified in the circular that all driving license holders having the booklet or any manual formats other than smart card must report to the office where they have been issued for the purpose of digitizing their data and subsequent issue in the Smart Card Format. This must be completed before 01.12.2014 after which the driving licenses other than smart card shall be treated as cancelled.

As per copy of driving licence available on record, complainant’s driver had applied for renewal on 07.07.2014. As per the above circular, it should have been issued by the DTO Mokochung, Nagaland on smart card but as per copy of license provided it is found that Driving License not issued/renewed on smart card in pursuance the above the circular. Therefore, it is clear that driving license is not valid at the time of accident of insured’s vehicle.

In this regard complainant’s kind attention is invited to general exception no.3(b) of the policy which states that the company shall not be liable for any accidental loss/damage while the vehicle insured is being driven by any person other than a driver as stated in the drivers clause.

The driver clause is given in the schedule of the policy which defines the driver as any person including insured provided that the person holds an effective driving license at the time of accident.

Condition no.8 “the due observance and fulfillment of the terms, condition and endorsement of this policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy.

The claim of the complainant being not maintainable, as per terms and conditions of the policy, so was repudiated by OP and was communicated to complainant, vide repudiation letter dated 26.02.2016. It is further pleaded that the present complaint is hopelessly barred by limitation clause under section 24-A (now 69(1)) of the Consumer Protection Act which define limitation period for filing complaint read as under:-

“69(1) Limitation Period- (1) The District Commission, 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”.

There is no deficiency in question and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Complainant has tendered into evidence affidavit of Radhey Shyam Director Ex.CW1/A, letter dated 26.02.2016 Ex.C1, copy of insurance policy Ex.C2, copy of bill Ex.C3, copy of registration certificate Ex.C4, copy of fitness certificate Ex.C5, copy of driving licence of Mohmad Islam Ex.C6 and Ex.C8, copy of permit Ex.C7, copy of legal notice Ex.C9, postal receipt Ex.C10, Board resolution Ex.C11, form 32 Ex.C12, form no.DIR 12 Ex.C13, copy of memorandum Ex.C14 and closed the evidence on 29.09.2021 by suffering separate statement.

5.             On the other hand, OP tendered into evidence affidavit of Devendra Kumar Ex.RW1/A, survey report Ex.R1, copy of driving licence of Mohmad Islam Ex.R2, letter to insured dated 11.02.2016 Ex.R3, insurance policy Ex.R4 and closed the evidence on 06.1.2022 by suffering separate statement.

6.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for the complainant, while reiterating the contents of the complaint, has vehemently argued that during subsistence of insurance policy, the vehicle of the complainant met with an accident and the vehicle had been shifted to Laxmi Motors, Karnal for its repair. Information regarding accident was also given to OPs. OPs appointed a surveyor namely Shri B.B.Chawla for assessment of the loss. Complainant spent Rs.2,06,865/- on the repair of the vehicle in question. The surveyor demanded relevant documents from complainant, complainant submitted all the required documents with the OP and the surveyor. Thereafter, complainant requested the OP for releasing of his genuine claim regarding the vehicle in question but OP did not pay any heed to the request of complainant and closed the claim of the complainant on false and frivolous ground. Hence, prayed for allowing the complaint with compensation and litigation expenses etc.

8.             Per contra, learned counsel for the OP, while reiterating the contents of the written version, has vehemently argued that on receiving the intimation regarding the alleged accident, OP appointed an IRDA Licensed surveyor, Deepankur Soni, for verification and assessment of damages. After the survey, the OP and the surveyor found that driver had no valid driving license at the time of accident. He further argued that complaint of the complainant is hopelessly barred by limitation and prayed for dismissal of complaint.

9.             After hearing the arguments of both the parties, we firstly decide that whether complaint filed by the complainant is within period of limitation or not?

10.           Limitation period for filing the complaint is defined in Section 69 of the Consumer Protection Act, 2019 which is reproduced as under:-

(1)    The District Commission, 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 sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Commission, 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 District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay.

 

11.           In the present complaint, the vehicle in question met with an accident on 14.09.2015 and the claim of the complainant has been closed, vide letter dated 26.02.2016, the cause of action had arisen on 26.02. 2016, but the present complaint has been filed by the complainant on 25.09.2019, after the gap of more than 3½ years. Neither any separate application for condonation of delay nor complainant has taken any plea in the complaint for mentioning the reason for not filing the complaint within the period of limitation prescribed in Section 69 of the Consumer Protection Act, 2019. Hence, as per the provision of Section 69 of Consumer Protection Act, 2019 the present complaint is hopelessly time barred and the same is liable to be dismissed.

12.           In view of above discussion, and without going into the merits of the present complaint, the present complaint is hereby dismissed being time barred. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated:17.01.2022                                                                     

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

        (Vineet Kaushik)                  (Dr. Rekha Chaudhary)

            Member                               Member