Rajasthan

StateCommission

CC/09/38

Harish Kumar Kotwani - Complainant(s)

Versus

Divisional Manager The ORIENTAL iNSURANCE COMPANY AND OTHER - Opp.Party(s)

S.N. Bohra

25 Jan 2016

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

 

COMPLAINT CASE NO: 38/2009

 

M/s.Chitresh Cold Storage Pvt. Ltd. Baran Road, Kota.(Rajasthan)

 

Vs.

 

Divisional Manager, The Oriental Insurance Co. Ltd. Divisional Office 2^nd Kamal Auto Industries, Jhalawar Road, Kota & ors.

 

Date of Order 25.01.2016

 

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

Mrs.Sunita Ranka- Member

 

Mr. S.N.Bohra counsel for the complainant

Mr.A.N.Pareek counsel for the non-applicants

 

 

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BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

 

This complaint has been filed with the averments that complainant is a Private Limited Company and Harish Kotwani is the Director running a cold storage which was insured with the non-applicants and insurance was for the period from 5.4.2004 to 4.4.2005. The building was insured at Rs. 40 lakhs and machinery was insured at Rs. 20,53,900/-, in total the insurance was for Rs.60,53,900/- and policy of Standard Fire and Special Perils was issued in favour of the complainant. On 19.2.2005 the cold storage was caught with fire. The non-applicants were immediately informed. FIR was lodged at Police Station Udyog Nagar numbered 62/2005 dated 28.2.2005. After investigation it was found that fire broke up due to short circuit and there is no misappropriation on the part of the owner. Surveyor was appointed by the non-applicants and he made the spot survey. On 2.3.2005 the surveyor asked for some documents vide Ex.6 which was made available to the surveyor vide letter Ex. 7 dated 5.12.2005 and inspite of this his claim has been denied. Thereafter some reminders were also sent to the complainant that documents be produced before him. The surveyor has not produced the survey report and claim of

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the complainant was rejected on 26.7.2007.Thereafter complainant wrote a letter to the Dy.Chief Manager and reply was received that action is going on in the matter. The complainant has also pleaded that cause of action has arose on 20.11.2007. Relief was asked for allowing the claim with compensation, interest and cost of proceedings.

 

Per contra the preliminary objections were raised by the non-applicants that complaint is time barred as claim has been denied on 26.7.2007 whereas this complaint has been filed on 5.10.2009 and there is no prayer for condonation of delay. Further there is a condition in the policy that if claim has not been made subject matter of suit within 12 months, it will be deemed that the claim has been abandoned and thereafter shall not be recoverable. Hence,as per policy condition 6 (ii) the claim is time barred. Several reminders have been sent to the complainant inspite of this requisite documents have not been submitted. Hence, claim was denied and no intention of malafide is pleaded on the part of the insurance company. One fact has also been alleged by the non-applicant that earlier on 12.7.2006 vide Ex. NA 2 the claim was denied and on the request of the complainant the case was re-opened. Again requisite documents were not submitted and finally it was

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repudiated on 26.7.2007. Hence the complaint is time barred and should be rejected.

 

Heard the counsel for the parties and perused the original record of the case.

 

Both the parties have submitted their evidence by way of affidavit and supported documents were also submitted.

 

The first contention of the non-applicant is that the complaint is time barred as vide letter dated 26.7.2007 Ex. 18 the claim was repudiated and within two years as provided u/s 24 A of the Consumer Protection Act the complaint has not been filed.

 

The article 44 B of Limitation Act clearly provides that cause of action will arise from the date of occurrence of causing the loss or where the claim is denied, the date of such denial and admittedly here in the present case the claim has been denied earlier vide Ex. NA 2 on 12.7.2006. Again it was re-opened and finally it was denied vide Ex. 18 dated 26.7.2007.

 

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The non-applicant has also relied on ( 1976) 1 SCC 943 The Vulcan Insurance Vs. Maharaj Singh & ors. 2015 (1) CPR 153 Global Ispat Ltd. Vs. Oriental Insurance Co., 2009 (2) SCCD 594 (SC) State Bank of India Vs. B.S.Agricultural Industries, (2008 ) 14 SCC 444 Uttar Pradesh State Road Transport Corpn. Vs. Compotar and 2015 (1) CPR 511 (NC) New India Assurance Co. Ltd. Vs. Sanjay.

 

There is no dispute about the provision of s.24 A of the Consumer Protection Act that limitation is two years from the date of accrual of cause of action and as per non-applicant the cause of action arose on the denial of the claim on 26.7.2007.

 

As per pleading of the complainant his contention is that cause of action arose on 28.11.2007 vide Ex. 19. This letter has been addressed to Dy.Chief Manager and the reply of the same Ex. 21 is also on record and further his other contention is that his claim has not been denied only it was made 'No Claim'. which was intimated to him vide Ex. 18.

 

Article 44 B of the Limitation Act reads as follows:

 

“ The date of the occurrence causing the loss, or where

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the claim on the policy is denied, either partly or wholly, the date of such denial.”

 

speaks that cause of action would arise when occurrence causing the loss was committed or where the claim on the policy is denied from the date of such denial and admittedly vide Ex. 18 the claim of the complainant was denied .

 

The complainant has relied upon II (2006) CPJ 333 (NC) National Insurance Co. Ltd. Vs. Sukhdev Singh Gill where the court has held that 'No Claim' could not be treated as final repudiation. The facts of the case were quite different from the present case. A letter was issued to the complainant as reminder to submit several documents and it has also been stated that the documents should be deposited in the branch office within 15 days otherwise the case will be closed as 'No claim'. Hence, the letter was conditional but here in the present case no such condition is imposed in Ex. 18. There is a clear narration of the fact that the complainant is failed to submit the required documents and therefore, claim has been filed as 'no claim'. In complaint it has also been pleaded by the complainant that his claim has been denied vide Ex. 18 and this fact has also been stated in Ex. 19 dated 20.11.2007 when a letter has been written

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to the Dy.Chief Manager. There is a specific narration that his claim has been dismissed on 26.7.2007. Hence, it is crystal clear that the claim of the complainant was denied vide Ex. 18 dated 26.7.2007 and admittedly the complaint has been filed on 5.10.2009 which is barred by limitation as per s.24 A of the Consumer Protection Act.

 

The contention of the complainant is that fresh cause of action occurred vide Ex.19 dated 20.11.2007. The reading of Ex.19 speaks that it has been addressed to Deputy Chief Manager in the nature of complaint or request for reconsideration of the matter which was replied generally vide Ex.21 that they are looking into the matter. Ex.19 could not provide any cause of action to the complainant as admittedly the claim was denied earlier vide Ex.18 dated 26.7.2007. Further policy was issued by Kota office of the non-applicant. It has appointed the surveyor and all correspondence had taken place between complainant, surveyor and Kota office and even Deputy Chief Manager has not been made party in the complaint hence, Ex.19 could not give rise to any cause of

 

 

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action and contention of the complainant is not acceptable.

 

The complainant has also relied upon III (2012) CPJ 522 (NC) IFFCO Tokio Vs. Gokak Textiles Ltd. where it has been said that the period of limitation runs from the date of repudiation and not from the date of loss. There is no quarrel on the above preposition but here in the present case admittedly the claim has been denied on 26.7.2007 and within two years complaint has not been filed hence, the complaint is time barred.

 

The other contention of the non-applicant is in regard to policy condition 6 (ii) in which 12 months time has been restricted to file the claim or to made the claim the subject matter of the suit and his contention is that this condition has not been complied with hence, the complaint is time barred.

 

There is no dispute about the fact that immediately after occurrence of loss the claim has been filed which was kept pending with the non-applicant till 26.7.2007. The contention of the complainant is that such condition which curtail the period of limitation is void and reliance has been placed on II (2005)

 

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CPJ 54 (NC) New India Assurance Co. Vs. KA Abdul Hameed where agreement u/s 28 (b) of the Indian Contract Act has been explained and it has been held that condition which extinguishes the right of the complainant to approach the court or Forum within specific time as per contract is void and cannot be enforced. Further reliance has been placed on 1 (2009) CPJ 1 (SC) H.P.State Forest Co.Ltd. Vs. United India Insurance Co. where it was held that curtailment of limitation period not permissible.

 

Per contra the non-applicant has relied upon II (1997) CPJ 1 (SC) National Insurance Co. Vs. Sujir Ganesh Nayak & Co. where distinction has been made between the agreement which did not curtail the time for enforcement of the right but provides forfeiture or waiver and the court was of the opinion that where only right has been extinguished and remedy has not been curtail, such agreements would not come under the mischief of section 28 of the Contract Act. Here in the present case the right of the party has not been curtailed. Only a restriction has been provided for enforcement of the same and a deeming clause has been provided that if in a particular time claim has not been preferred then it has deemed to be

 

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abandoned. Hence, there is no force in the plea raised by the complainant.

 

Further the contention of the complainant is that condition 6 (ii) refers to “suit” and it was held that complaint before the Consumer Forum are not in the nature of suit and reliance has been placed on III (2010) CPJ 466 (NC) United India Insurance Co. Vs. Joy Hukil & ors and III (2009) CPJ 73 (SC) EICM Exports Vs. South Indian Corpn. where in relation to Indian Carriage of Goods Act it has been held that the proceedings before the Forum are not suits.

 

Contrary to it the non-applicant has relied upon (2000) 4 SCC 91 Patel Roadways Vs. Birla Yamaha where the apex court has held that proceedings before the National Commission comes within the term “suit '' as term ' suit ' is a generic term taking within its sweep all proceedings initiated by a party for realisation of a right vested in him under law. Hence, in the light of law laid down in the case of Patel Roadways, the contention of the complainant is not acceptable but as the condition waives the right and not curtails the remedy, the plea taken by the complainant is not acceptable.

 

The contention of the non-applicant is that when relevant

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documents have not produced inspite of reminders, the claim was rightly denied and reliance has been placed on 1 (2009) CPJ 22 (NC) Priya Gopal Stores Vs. National Insurance Co. The contention of the complainant is that all the necessary documents were filed with the surveyor and it has been accepted by the Insurance Company vide letter Ex. 14 dated 24.1.2006 where it has been stated that insured has complied with all the requirements and further reminder Ex. 16 is issued to the surveyor to submit the report. These arguments have no force as after the issuance of letter Ex.14 the claim was denied on 12.7.2006 which was re-opened vide Ex. NA 11 dated 18.8.2006 on the request of the complainant in which it has been specifically stated that Mr.G.D.Agarwal and Mr.Harish Kotwani representative of the complainant has promised to provide all the documents and in Ex. A 8 it has been specifically pointed out to the complainant that which documents are not provided completely and other objections were also stated which clearly speaks that inspite of re-opening of the case the complainant could not provide the requisite documents to the surveyor. Hence, the denial on the part of the Insurance Company cannot be said to be deficiency in service.

 

 

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Per contra the complainant is guilty of not providing requisite documents. In Ex.,14 it has not been stated that the requisite documents were filed to the surveyor but only a reference has been made that it came into notice of the Insurance Company that the insured had complied with all the requirements and as the matter was prolonged one , reminder Ex.16 was issued to the surveyor to submit the final survey report. In survey report also it has been stated that insured could not provide us the requisite documents and which is confirmed by the reminders issued from time to time. Hence, the complainant could not proved any deficiency of service on the part of the non-applicant.

 

It has also been argued by the counsel for the complainant that survey report is faulty. As per guidelines the surveyor should file the report within 30 days of his appointment and if case is complicated and special one further time may be allowed but in no case the surveyor should take more than six months from the date of his appointment to furnish his report.

 

There is no dispute about the guidelines but here in the present case the complainant himself was guilty for not

 

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providing the requisite documents and for the reason his claim was made 'no claim' earlier on 12.7.2006 and later on vide Ex. 18.

 

It has also been argued that survey report is not conclusive proof. It can be ignored if it is perverse or arbitrary and contention of the counsel for the complainant is that no reasons have been assigned for the conclusion that it was under insured . There is no requirement under the guidelines to give reasons for assessment of every loss. Only in the Insurance Surveyors and Loss Assessors ( Licensing, Professional requirements and Code of Conduct ) Regulations, 2000 S.13 (xiv) made it mandatory to give reasons for repudiation of claim but loss could be assessed by investigation, enquiry, spot survey, estimate and so on. Hence, giving reason on every conclusion is not an essential condition for the surveyor.

 

The contention of the complainant is that the survey report cannot be looked into as the affidavit of the surveyor has not been submitted. The argument is against the record as affidavit of surveyor Arun Gupta is submitted before the court hence, this contention has no basis.

 

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From the above discussions it can be concluded that the complaint is time barred and is liable to be rejected. Hence, rejected.

 

 

(Sunita Ranka) (Nisha Gupta )

Member President

 

 

 

 

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