Orissa

Cuttak

CC/157/2016

Arobinda Routray - Complainant(s)

Versus

Branch Manager,Punjab & Sind Bank - Opp.Party(s)

R Acharya

06 Apr 2023

ORDER

                IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.157/2016

 

Sri Aurobinda Routray,

S/O: Sitanath Routray,Proprietor of

M/s. OA Infotech behind Govt. Bus Stand,

At/PO:Badambadi,Dist:Cuttack,

At present residing at Plot No.C/1261,

Sector-6,C.D.A,Cuttack.                                                ... Complainant.

 

                                                                Vrs.

1. Brahch Manager,Punjab & Sind Bank,

At:Bajrakabati Road,

                   Town/Dist:Cuttack

 

 

2. Branch Manager,

Bajaj Allianz General Insurance Company Ltd.,

At:1-Janpath, 3^rd Floor,2C-Janpath,

Shriya Square,Kharavela Nagar,

                           Unit-III,Bhubaneswar-1,Dist-Khurda.                           ...Opp.Parties

 

 

Present:               Sri Debasish Nayak,President.

                                                Sri Sibananda Mohanty,Member.

 

               Date of filing:     03.12.2016

Date of Order:    06.04.2023

 

For the complainant:            Mr. R.Acharya,Adv. & Associates.

For the O.P no.1:                        None.

For the O.P No.2.      :         Mr. A.A.Khan,Adv. & Associates.

 

Sri Sibananda Mohanty,Member.                  

Case of the complainant as made out from the complaint petition in short is that he is the Proprietor of “M/s. O.A Infotech” which was established in the year 2000 as a Distribution Firm of branded computers.  In the year 2002 LG Electronics Pvt. Ltd. had also given authorisation to his firm as “authorised service centre” of service and sale of spares and his firm is looking after 70 to 80% of service and spares of LGCDMA all over Odisha.  It is stated by him that he had opened a current account in Punjab & Sindh Bank who is the  O.P no.1.  During course of his business, he had availed a cash credit loan in the year 2002 to the limit of Rs.5,00,000/- from the O.P no.1.  The O.P no.1 to insure his firm had deducted a sum of Rs.3,995/- from the account of the complainant and deposited the said amount before the Insurance Company i.e. O.P no.2 on 7.3.2005 as premium amount.  As such, his firm was insured under the O.P no.2 for the period from 15.3.2005 to 14.3.2006.  It is the further case of the complainant is that on 29.7.2005 in the night, some miscreants committed theft by breaking open the door of the office-cum-godown of his firm and had stolen away cash, computer and mobile materials worth of Rs.5,75,000/-.  Immediately, on 30.7.2005, the complainant lodged FIR before the IIC,Madhupatna P.S, vide Madhupatna P.S case no.201 of 2005 U/S-457/380 of IPC corresponding to GR Case No.1175/2005 in the court of learned S.D.J.M,Sadar,Cuttack.  The said case was investigated and final report was submitted by the I.O.  The learned SDJM after hearing in details from both the counsels had accepted the final report with a finding that the final report submitted by the I.O as “the case is true, no clue”..  The complainant also had informed the O.Ps about the theft and the O.P no.2 conducted a survey on 12.8.2005.  After due survey, the O.P no.2 vide its letter dt.19.8.2005 had requested the complainant to furnish necessary documents in order to proceed further in the matter and accordingly, the complainant had submitted all the relevant documents on 24.11.2005.  It is further alleged by the complainant that the O.P no.1 who is the custodian of the monthly inspection report regarding his stock and disposal of the materials did not file the said report before the O.P no.2 for which the O.P no.2 did not take any step for settlement of his claim.  However, as per the direction of the surveyor of O.P no.2, the complainant had submitted all the relevant documents except some documents like final report of the police case and further had stated to the O.P no.2 that the stock report of his firm were available with the O.P no.1who was regularly assessing the stock of his firm in every month.  It is stated by the complainant that he had submitted an application to the O.P no.2 through  the O.P no.1, enclosing the order of the final report of the I.O and claimed loss amount to the tune of Rs.5,94,857/-, which he had  sustained in the burglary in his firm.  It is also stated by the complainant that as per the intimation of the surveyor of O.P no.2, the complainant had submitted all the relevant documents to him such as balance sheet for the year 2004-2005, purchase and sales tax of 1^st April,2005 to 29^th July,2005, statement of  stock of inventory after loss, bank stock statement from 1^st April,2005 to 31^st March,2006 and physical stock verification of the bank for the month of June/July & August,2005 on 17.1.2007, which was accepted by him.  But, the O.P no.2 had taken a decision on 30.5.2007 towards his claim as “no claim” and communicated to the complainant with a finding that since the surveyor recommended to close the claim as “no claim” due to his non-response on the ground of non-submission of required document by him.  The complainant after receiving the said letter had approached to the O.P no.2 for reconsideration of his claim and to reopen his claim file on 20.5.2008 and thereafter through another letter on 15.2.2010 but the O.P no.2 had rejected such representation on 20.2.2010.  It is stated by the complainant that after receiving the letter dt.20.2.2010 of the O.P no.2  he had filed an application before the O.P no.1 to take action against the O.P no.2 as the O.P no.2 had not settled the claim of the complainant on the ground of non-submission of the documents, i.e. balance sheet of 2004-2005, which was not required to settle his claim.  The O.P no.1 also had assured him to take necessary steps in that regard but in the meantime the O.P no.1 had issued a demand notice to the complainant U/S-13(4) of the SARFAESI Act to recover the loan dues.  The complainant challenging that notice had approached the Hon’ble High Court vide W.P (C)No.6169 of 2012, which was disposed of on 28.8.12, wherein the Hon’ble High Court had directed to the complainant to deposit a sum of Rs.2,60,000/- and accordingly, the complainant deposited a sum of Rs.2,60,000/- within the time before the O.P no.1.  It is further alleged by the complainant that he had filed another representation before the O.P no.2 on 19.3.2014 to reconsider his case sympathetically and to settle his claim within a stipulated period but that representation is still pending before the O.P. The complainant has filed the present case challenging the letter dt.30.5.2007,20.2.2010 issued by O.P no.2 on the ground that order of “no claim” was passed without application of mind.  It is alleged by the complainant that he  had filed all the documents as required under the law to settle his claim except the audited balance sheet of last three years which is not required for assessment of the loss, so also alleged that the O.P no.2 knowingly and deliberately directed him to file the said audited balance sheet with an intention to harass him, which is illegal.  As the O.P no.2 did not settle his claim, he has filed the present case with a prayer for a direction to the O.Ps to settle his claim amount to the tune  of Rs.6,16,350/- due to the  theft of materials as well as cash  alongwith interest thereon @ 10% per annum on the claim amount from 29.7.2005 till the final payment is made besides the payment a sum of Rs.1,00,000/- towards mental harassment and a sum of Rs.50,000/- towards the litigation expenses.  The complainant has also prayed for a direction against O.P no.1 for payment of compensation of Rs.2,00,000/- to him as the O,P.No.1 had caused his mental agony.

          The complainant has filed copies of several documents in order to prove his case.

2.       Out of the two O.Ps, O.P no.1 did not appear before this Commission; hence he was set exparte.  O.P no.2 has filed his written version stating therein that the claim of the complainant was repudiated for non-cooperation and non-submission of documents by the complainant.  It is stated by him that the claim of the complainant was repudiated by him on 30.5.2007 but the complainant has filed the present case in the year 2016, which is more than nine years after the repudiation of his claim.  As such his claim is hit by the disclaimer clause of the Insurance Policy but also grossly barred by limitation and hit by Sec-24(A) of the C.P.Act,1986.  Hence the O.P has prayed for dismissal of the complaint case with cost on this ground alone.  On the merit of the case, It is admitted by the O.P no.2 that he had issued a Burglary & House Breaking Policy bearing No.OG-05-2403-4092-000000112, which was valid from 15.3.2005 to 14.3.2006 in favour of the complainant covering the risk of stock in trade of computers and money in safe and no coverage was extended for spare and for mobile sets.  It is stated by the O.P no.2 that the complainant had alleged that in the night  on 29.7.2005 some miscreants committed theft by breaking open the door of the office and godown of his firm and had stolen away cash, computer and mobile materials.  O.P no.2 after receiving such intimation had deputed one IRDA approved duly licensed surveyor and loss assessor, A.K.Govil and Associates for survey and assessment of the loss.  The said surveyor visited the premises of the insured and had conducted the physical inspection of the shop and godown of the insured and had requested the complainant to submit the documents, which are required for assessment of the loss to have suffered by the complainant but the complainant did not respond to the request of the surveyor for which he had written letter on 19.8.2005 to furnish necessary documents in order to proceed further in the matter but the complainant did not respond to that letter.  It is stated by him that as the complainant failed to respond to the letter and the reminder of the said surveyor, he vide letter dt.27.10.2005 and 11.11.2005 had requested the complainant to submit the documents as required by the said surveyor but the complainant vide his letter dt.19.11.2005 had informed him that he would submit those documents as soon as possible but failed to supply the said documents.  The surveyor after waiting for a long time vide its letter dt.28.9.2006 had requested the complainant to submit the documents as mentioned in that letter and issued final notice to the complainant for submission of those documents.  It is stated by the O.P no.2 that the complainant after receiving the final notice from the surveyor requested vide his letter dt.4.12.2006 to allow some time to submit the document and had promised to furnish the same by December,2006 but he had failed to furnish those documents by December,2006and the surveyor had given report accordingly.  It is also stated by the O.P no.2 that the complainant after submission of the survey report by the surveyor only on 19.1.2007 had requested him for reopening the claim file which was duly considered by him.  Thereafter, the surveyor reopened the claim file and allowed time to the complainant vide his mail dt.13.3.2007 and 31.3.2007 to submit the wanting documents but the complainant failed to submit those documents.  Hence, the surveyor vide his letter dt.25.5.2007 had closed the claim file of the complainant for non-submission of the documents.  The O.P no.2 after receipt of the letter dt.25.5.2007 of his surveyor communicated the same to the complainant vide his letter dt.30.5.2007 and had informed the complainant that his claim was closed as “no claim” and no other response in this regard would be entertained further.  But the complainant, thereafter after lapse of 37 months from the date of repudiation of his claim had sent a letter dt.15.2.2010 and requested him to reopen his claim file which was rejected by him vide his letter dt.20.2.2010.  The O.P no.2 also disputes the claim amount of Rs.5,75,000/- as alleged by the complainant.  It is also stated by him that the police had submitted his report after investigation without mentioning the amount of loss suffered by the complainant.  In view of the above, it is prayed by the O.P no.2 to dismiss the complaint case with cost.

          O.P no.2 has also filed some documents in order to support his case.

3.       Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.P no.1, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion here in this case.

                      i.          Whether the case is barred by limitation ?

ii.         Whether the case of the complainant is maintainable?

iii.          Whether there was any deficiency in service on the part of the O.Ps ?

iv.           Whether the complainant is entitled to the reliefs as claimed by him?

Issue no.i.

          The complainant alongwith his complaint petition has filed an application U/S-5 of the Limitation Act to condone the delay in filing the complaint case.  The O.P no.2 has filed objection to that petition.  The condonation of delay is not a matter of right.  The delay of each day is to be explained. But the complainant has not explained the same.  The cause of action for filing the case arose on 29.7.2005, when the theft took place as well as on 30.5.2007, when the O.P no.2 repudiated the claim of the complainant.  The plea of delay by the complainant due to filing of W.P.(C) No.6169/2012 before the Hon’ble High Court of Orissa has no nexus with the present case.  Hence, that plea is not acceptable.  The complainant has not explained the delay properly from 30.5.2007 the date when the O.P no.2 repudiated the claim of the complainant till filing of the case, which is above nine years.  The plea of pending of representation by the complainant before the O.P no.2 would not save the Limitation period.  Both sides have filed citations in support of their case.  The learned counsel for the O.P no.2 has relied upon a decision reported in 2012(2) CPR, 247 (NC) in the case of Bankim Mandal Vs. Haryana Urban Development Authority & another, wherein the Hon’ble National Commission has held that “if the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside”.  The Hon’ble National Commission passed this order relying upon the three decisions of the Hon’ble Supreme Court.  The Hon’ble National Commission has quoted the para-13 of the decision rendered by the Hon’ble Supreme Court reported in III(2009( CPJ 75(SC) in the case of Kandimalla Raghavaiah & Co. Vs. National Insurance Co. Ltd. & another, wherein the Hon’ble Supreme Court has held that in a case of fire Insurance Policy, the cause of action for filing the case arises from the date when the fire breaks out.  In the present case theft/burglary took place on 29.7.2005, hence this is the date, when the cause of action arose as per the decisions of the Hon’ble Supreme Court for filing the case.    The decision cited by the learned counsel for the complainant is not applicable in the present case.  The cause of action for filing of the present case arose on 29.7.2005, when the theft took place but the case has been filed on 3.12.2016 which is after lapse of 11 years from the date of cause of action.The case has been filed under the C.P. Act,1986and as per the said Act, the complaint case is to be filed within two years of cause of action but the same has been filed after lapse of 11 years.  The application filed by the complainant U/S-5 of the Limitation Act to condone the delay in filing the complaint case is rejected.  In view of the citations as well as the observation made above, the complaint case is not maintainable as it is barred by limitation as per Sec-24(A) of the C.P. Act,1986.

Issues no.ii, iii& iv.

As the complaint case is barred by limitation, it is not necessary to discuss on the other issues.   Hence it is so ordered;

ORDER

Case is dismissed on contest against the O.P no.2 & exparte against O.P no.1 and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the   6^th    day of April,2023 under the seal and signature of this Commission.          

 

                                                                                                                 Sri Sibananda Mohanty

                                                                                                                        Member

                                                                                                                   Sri Debasish Nayak

                                                                                                                             President