West Bengal

Paschim Midnapore

CC/118/2014

Sri Sanjoy Kumar Patwari. - Complainant(s)

Versus

Chairman Cum Managing Director, The New India Assurance Co.Ltd. - Opp.Party(s)

29 Jul 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

Bibekananda Pramanik, President

                                               and  Kapot Chattopadhyay, Member.                                              

                                                        

Complaint Case No.118/2014

Rashmi Cement Ltd.……………….………Complainant

Versus

Chairman Cum Managing Director,

New India Assurance Company Ltd. & another …………..Opp. Party.

 

 

Decided on: - 29/07/2015

                               

ORDER

         Bibekananda Pramanik, President - Facts of the case, in brief, is that the complainant has been running a Cement Plant at Jitusole, Jhargram in the district of Paschim Medinipur since long and for the transportation and other works, the complainant purchased a good numbers of Trucks and other vehicles including the present vehicle in question namely MAHINDRA & MAHINDRA being No.WB-34-P-2326.  On the night of 18/12/2009 at about  12.45 hours, 900/1000 persons including women had entered in the compound of Reshmi Cement Factory  and caused huge damage and mischief of 13/14 trucks which were kept inside the factory premises and one big crane, three light vehicles  and 8/10 motor cycles were fully burnt.  Over the said incident of occurrence, Jhargram, P.S. Case No.227 dated 18/12/2009 was started and in that case, police submitted charge sheet being No.28/11dated 04/02/2011, U/Ss147/148/149/440/447/427/436/323/379/307/121/121A/122/123/124A of I.P.C. In that case, search and seizure was also done in respect of burnt vehicles including the present vehicle in question namely MAHINDRA & MAHINDRA.  The complainant has paid Rs.37,477/- for availing the fire services on that night.  On 22/05/2010, the complainant dispatched a letter to the Surveyor of the   OP-Insurance Company namely the New India Assurance Company Ltd. requesting him to take necessary steps and arrangements for releasing the payment on Net Loss/Total Loss basis in respect of the burnt vehicle MAHINDRA & MAHINDRA.  It is stated that the said vehicle was duly covered and insured by the      OP-Insurance Company and the policy number of such Insurance is 512602/31/09/01/00000503

Contd…………..P/2

 

                                                                                                       -(2)-

and the validity of the policy was from 18/05/2009 to midnight of 17/05/2010.  The complainant again sent a letter on 10/06/2010 to the Surveyor requesting him to release the payment of Rs.3,28,770/- on Net Loss/ Total Loss basis as per discussion finalized with the Surveyor, appointed by the OP.  Even thereafter, several representations were given on 11/07/2011, 03/03/2012, 04/05/2012, 07/12/2012, 04/03/2013, 07/08/2013 and finally on 09/05/2014 but the OP remained mum.  Thereafter, the OP, in their reply dated 28/05/2014, mentioned that the OP had given a letter on 21/03/2012 to the complainant stating that the OP is not in a position to review the claim.  It is stated that no such letter was received by the complainant and to deprive the complainant from getting their genuine claim such mal practice has been committed by the OP.  The complainant is a consumer U/S 2(1) (d) of C.P.C. Act and the OP are liable to pay a consolidated amount of Rs.4,28,770/- towards damages, interest, mental agony, harassment and cost to the complainant.

                The OP-New India Assurance Company Ltd. has contested this case by filing a W/O.  Denying and disputing the case of the complainant, it is specific case of the OP that on intimation regarding the alleged occurrence of burning of the vehicle in question, the Op appointed their Surveyor cum Loss Assessor for assessment of the loss and the said Surveyor assessed loss as net on salvages loss basis of Rs.3,28,770/- of which the complainant gave consent.  During the process of claim, the OP as per norms and conditions of the policy asked for police final report, fire brigade report and the vehicle documents for verification and OP also issued a letter dated 23/08/2010, 23/11/2010 and 26/06/2011 requesting the complainant for the aforesaid documents but the complainant did not submit those documents.  Vide their letter dated 19/10/2011, the OP asked the complainant for furnishing those documents within 15 days from the date of issuance of the said letter,  otherwise, the OP would close the claim file treating as no claim,  Even after  the issuance of the said letter dated 19/10/2011, the complainant did not fulfill the above the requirements for furnishing those documents and the Op was therefore compelled to close the claim treating the same as No Claim on the ground stated by their letter dated 21/03/2012.  Since after issuance of that letter dated 21/03/2012, more than 2 years have been elapsed till filing of the present complaint in the month of December 2014, so, the present complaint is hopelessly barred by limitation.  It is specifically stated by the OP that there is no deficiency in service from their end and for the reasons stated above, the complaint case is liable to be dismissed.          

 

Point for decision

 

                                             1)  Is the petition of complaint barred by limitation?

                                             2)  Is the complainant entitled to the reliefs, as prayed for?

 

Contd…………..P/3

                                                    

 

                                                                                                          -(3)-

Decision with reasons

  Both the points of taken up together for consideration.

  At the very outset, it is to be mentioned here that neither the complainant nor the OP adduced any oral or documentary evidence but they have filed certain documents in support of their respective cases.

  Facts remains undisputed that on the night of occurrence i.e. on 18/12/2009 at about 12.45 hours, about 900/1000 persons entered in the factory premises of the complainant and they set fire at different parts of the factory causing huge damage and mischief of few trucks and other vehicles which were kept inside the factory premises including the vehicle in question.  It is also not denied and disputed that the vehicle in question namely MAHINDRA & MAHINDRA being No.WB-34-P-2326, which was burnt on the night of occurrence, was duly insured with the OP-Insurance Company.  Fact also remains undisputed  that the Net Loss of the insured vehicle was finalized after discussion with the Surveyor appointed by the O.P., thereby assessing Net Loss as Rs.3,28,770/-.  According to the complainant, they sent several letters starting from 11/07/2011 to 09/05/2014 to the O.P. thereby requesting for release of payment of the assessed sum of Rs.3,28,770/- but the O.P. remained mum for all these years and finally by their letter dated 28/05/2014, they stated that they had given a letter on 21/03/2014 to the complainant thereby stating that the O.P. is not in a position to review the claim.  According to the complainant, they received no such letter dated 21/03/2012.  As against this, it is the case of the O.P., as made out in their W/O, that the Surveyor appointed by them assessed the loss at Rs.3,28,770/- to which the complainant gave consent and during process of claim, the O.P., as per norms and conditions of the policy asked the complainant for submitting bills, final police report, fire brigade  report and vehicle documents for verification in order to know the actual cost of loss and thereby to ascertain the admissibility of the claim.  O.P. issued several letters requesting, the complainant for submitting those documents.  Vide their letter dated 19/10/2011, the O.P. asked the complainant to file those documents within 15 days from the date of issuance of the said letter dated 19/10/2011, otherwise they would close the claim-file treating the same as No Claim.  Even after issuance of the said letter dated 19/10/2011, the complainant did not fulfill the above requirements for furnishing those documents and as such, the O.P. was compelled to close the claim treating the same as ‘No Claim’ on the ground stated by their letter dated 21/03/2012.  It appears that the complainant denied receipt of any such letters dated 19/10/2011 & 21/03/2012.  Relying upon same letters and reminders starting from dated 11/07/2011 to 19/05/2014, it was submitted on behalf of the complainant that by sending those letters, they requested the O.P. to settle the claim and it has been mentioned in those letters that they submitted all those required documents.  Complainant produced no documents showing acknowledgement of submissions of all those required documents as stated in their letters.  On the contrary, we find from the copy of letter dated 19/10/2011 that the O.P. asked the

Contd…………..P/4

 

 

                                                                                                           -(4)-

complainant to submit some required documents for finalizing the settlement of the claim within 15 days from the date of issuance of the said letter with the intimation that for failure of production they would close the file treated as No Claim.  It further appears that thereafter the O.P.-Insurance Company sent a repudiation letter dated 21/03/2012 by courier to the complainant and in support of their said case, the O.P. has produced the receipt of the courier service in respect of service of repudiation letter dated 21/03/2012.  Although, the complainant has flatly denied receipt of any such notice, but the receipt NO.8673 of the Nightingale Express Courier Service goes to show that the said letter dated 21/03/2012 was sent in the name of the complainant and relying on this receipt, we have no hesitation to hold that they said repudiation letter dated 21/03/2012 was duly sent to the complainant and when a document is sent by courier service, it is to be presumed that the same was duly served upon the addressee.  In this connection, it should not be looked sight of regarding the conduct of the complainant.  The alleged occurrence of setting of fire in the factory of the complainant took place in the night of 18/12/2009  and admittedly the Surveyor of the O.P. settled the net loss regarding the vehicle in question at Rs.3,28,770/- immediately after the date of occurrence in the year 2010 and it was very much within the knowledge of the complainant.  The present complaint has been filed in the year 2014, after receiving letter dated 28/05/2014 of the O.P. in reply to the letter dated 19/05/2014 of the complainant.  During these periods of 4 years, the complainant took no positive steps apart from sending reminders letters for settlement of claim.  It has been already stated that the complainant produced no document to show that during those period of four years, they submitted all those required documents to the O.P.  Since the receipt of Nightingale   Express Courier Service goes to show that a repudiation letter dated 21/03/2012 was duly sent by the O.P. to the complainant, so it is to be presumed, as we already held, that such letter was duly served upon the complainant.  Therefore, the cause of action actually arose in the month of March 2012 when the said letter dated 21/03/2012 was duly sent to the complainant.  The present complaint has been filed on 05/09/2014 i.e. after lapse of more than 2 years from the date of cause of action i.e. on or about 21/03/2912.  It is, therefore, held that the present case is hopelessly barred by limitation and the complainant is therefore not entitled to the relief as prayed for.

                                              Hence, it is,

                                                                Ordered,

                                                                that the complaint case under Section-12 of the Consumer Protection act is not maintainable as it is barred by limitation and therefore the case is dismissed on contest but in the circumstances without cost.

Dictated & Corrected by me

             Sd/-                                                 Sd/-                                           Sd/-

         President                                           Member                                    President

                                                                                                               District Forum

                                                                                                            Paschim Medinipur