Order No. : 03

Date : 19.12.2018

Parties are present through their Ld. Lawyers.

Appeal is taken up for hearing.

Heard both sides. Considered.

In nut shell the factual matrix of the appeal is that the complainant purchased a truck for the purpose of his livelihood. The truck was theft on 17.09.2013 and the complainant lodged FIR, case was started by Police and Final Report was submitted U/S. 406 of IPC on 30.03.2014. The complainant-appellant in C.C. Case No. 223 of 2016 communicated with the office of the Insurance Company (OPs) after obtaining the certified copy of the final report.

OPs disclosed that the claim amount could not be disbursed as the Police submitted Final Report U/S. 406 of IPC. The complainant-appellant, thereafter, filed a prayer for reinvestigation of the case before the Ld. A.C.J.M., Durgapur. Ld. A.C.J.M., Durgapur allowed the prayer for reinvestigation and Investigating Authority after investigation submitted charge – sheet U/Ss. 406/379/120(B)/34 of IPC vide CS No. 389 of 2015 dated 30.11.2015 against the accds therein.

The complainant, thereafter, communicated the fact with the office of the OPs on 20.01.2016 after obtaining the certified copy of CS. But the OPs disclosed that they are helpless because the claim filed by the complainant has already been closed and finally on 01.12.2016 OPs denied the claim of the complainant.

It is stated that the cause of action arose on 17.09.2013, 30.12.2014 and 01.12.2016 when the OPs refused the claim of the complainant-appellant.

The complainant-appellant filed the case before the Ld. Court below with a petition U/S. 24 (A) of the C.P. Act, praying for condonation of delay. OPs appeared in the case but did not file any objection against the application U/S. 24 (A) of the said Act, but filed written version on 28.04.2017.

Ld. Court below dismissed the case rejecting the petition for condonation of delay.

It is alleged that the Court below has erred both in law and in fact in passing the impugned order.

The appellant has prayed for setting aside the impugned order/judgement dt. 28.04.2017 passed by the Ld. Court below.

I have perused the documents on record. It appears that the date of theft of the truck bearing registration No. WB 37 C 2101 was 17.09.2013. It also appears that the complainant lodged the FIR before the Police immediately after the incident of theft on 19.09.2013.

Police initially submitted final report on 30.03.2014. The complainant being dissatisfied with the final report made a prayer for reinvestigation before the A.C.J.M., Durgapur and the Ld. A.C.J.M., Durgapur was pleased to allow the prayer for reinvestigation.

Finally, police submitted CS U/Ss. 406/379/120(B)/ 34 of the IPC on 30.11.2015 and the case is pending. No copy of claim application before Insurance Company i.e. OPs is forthcoming before me but from a letter dated 02.04.2014 it appears that OPs asked for some documents from the complainant. So admittedly, complainant-appellant lodged claim before OP-Insurance Company.

It also appears from the said letter that the OPs gave a prior letter on 20.02.2013. It also appears from the document filed from the side of the OPs before this Commission as on this date that the OPs also gave another letter dated 06.05.2014 to the complainant asking for the explanation from the side of the complainant regarding some discrepancies in the claim.

I find that no repudiation letter is forthcoming from the side of the OPs on record repudiating the claim of the complainant - appellant.

The letters dated 02.04.2014, 06.05.2014 are not of course letters of repudiation.

Unless the claim of the complainant is repudiated formally, the cause of action appears to be a continuing one.

It does not appear that the Insurance Company repudiated the claim of the complainant vide letters dated 02.04.2014 or 06.05.2014.

So, I think that the cause of action appears to be a continuing one. As per Consumer Protection Act, a case should be filed within 2 years from the date of cause of action. Cause of action means bundle of facts.

I think that the matter of limitation is a mixed question of fact of law. The facts which have been described in the condonation application have not been considered in right perspective by the Ld. Court below.

Moreover, I find that the OPs did not file any written objection against the application U/S 24 (A) of the C.P. Act in the Ld. Court below.

The facts as such in the said application for delay condonation filed by the complainant with affidavit before the Ld. Court below remains uncontroverted, as OPs did not also file any written objection against the said application.

Ld. Court below failed to consider that the OPs did not formally repudiate the claims of the complainant but kept it pending, asking for various documents and explanation in respect of some discrepancies in the claim. So, it cannot be said that OPs repudiated the claim of the complainant.

I think that the impugned order passed by the Ld. Court below is bad in law and the Ld. Court below misconceived the position of the law and arrived at an erroneous conclusion.

Law of limitation does not affect the right of the complainant because it is a continuous cause of action in absence of repudiation of claim by the OPs.

In result the appeal succeeds.  

Hence, the

                                                            ORDER

that the instant appeal being No. RBR/A/22/2018 arising out of C.C. 223 of 2016 is allowed on contest.

The impugned order dated 28.04.2017 passed by the Ld. District Consumer Forum, Burdwan in connection with C.C. No. 223 of 2016 is set aside.

Ld. Court below is directed to dispose the case preferably within 3 (three) months from the date of the receipt of this order.

Let a copy of this order be sent down to Ld. Court below for information and necessary action.

Dictated and corrected by me