DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 291 of 4.12.2015
Decided on: 15.11.2017
Karamjit Singh S/o Sh.Zora Singh R/o Channo, District Fatehgarh Sahib, C/o Harbhajan Singh, H.No.132, Village Fatehgarh Retgarh, Tehsil Samana District Patiala.
…………...Complainant
Versus
HDFC ERGO General Insurance Co. Ltd., Baradari, Patiala through its Manager.
…………Opposite Party.
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Smt. Neena Sandhu, President
Smt. Neelam Gupta, Member
ARGUED BY:
Sh.J.S.Auja,Advocate,counsel for complainant.
Sh.Dhiraj Puri,Advocat,counsel for the opposite party.
ORDER
SMT.NEENA SANDHU, PRESIDENT
Sh.Karamjit Singh, complainant has filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Party (hereinafter referred to as the O.P.) praying for the following reliefs:-
- To release the policy amount of Rs.19,80,000/- alongwith interest @18% per annum from 25.10.2012
- To pay Rs.10,000/- as compensation for causing mental agony and physical harassment
- To pay Rs.5500/- as litigation expenses and
- To grant any other relief,which this Forum may deem fit.
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2. The brief facts of the complaint are that the complainant got insured from Op no.1, his vehicle bearing registered No.PB-11-BA-8027, make TATA Tanker-3118, having engine No.21E84058133, chassis No.MAT4664209C5G 12331, vide policy No.2315200304773500000, for the period from 31.7.2012 to 30.7.2013, covering the risk of Rs.20,50,348/- for chassis and Rs.3,24,652/-for vehicle body and paid Rs.44,543/- as premium for the said policy. It is stated that the said vehicle met with an accident in the area of Dudu, Jaipur, on 25.10.2012 and was totally damaged and could not be got repaired. FIR No.421/2012 was got registered by the police of P.S.Dudu. Information to the OP was also given by the complainant. An enquiry was got conducted by the OP. He approached and requested the OP for the payment of the loss suffered by him but the Op did not listen. He also got sent a legal notice dated 26.5.2014 through registered post in response to which OP no.1 assured to pay Rs.19,80,000/- but till today no payment was received by him.He again got sent legal notice on 14.10.2015 but to no effect.The act and conducted of the OP amounted to deficiency in service which caused mental agony and physical harassment to him. Hence this complaint.
3. On being put to notice the Op failed to come present and was accordingly proceeded against ex-parte vide order dated 8.1.2016. Against the said order an appeal was filed by the OP before the Hon’ble State Commission. The Hon’ble State Commission accepted the appeal and setaside the order dated 8.1.2016 passed by this Forum with the permission to the OP to represent its case before this Forum. In the written version , the OP took the preliminary objections to the effect that this Forum has got no pecuniary jurisdiction to try & decide the present complaint as the relief claimed in the complaint is more than Rs.20lacs; that this Forum has no territorial jurisdiction to try and decide the present complaint; that the complaint is time barred as the accident took place on 25.10.2012 and last communication regarding the repair of the vehicle was sent on 13.3.2013 whereas the complaint was filed on 4.12.2015; that the complaint is bad for non-joinder of necessary party as the impugned vehicle is hypothecated under hire purchase with the HDFC Bank Ltd.; that the complaint is false, frivolous, vague and vexatious and that the complainant has got no locus standi and cause of action to file the present complaint and is liable to be dismissed.On merits, it is stated that on receipt of information about accident of the vehicle in question IRDA approved surveyor Arora Associates was appointed to assess the loss. The said surveyor firstly tried to settle the claim on cash loss basis .On the refusal of the complainant, he told him to get repair the vehicle vide letter dated 21.1.2013 and 13.3.2013 but the complainant did not do so. The surveyor assessed the loss to the tune of Rs.11,50,000/-as per terms and conditions of the policy.There is no deficiency of service on the part of the OP. After denying all other averments made in the complaint, it was prayed to dismiss the complaint.
4. On being called to do so,the ld.counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant, Ex.CB affidavit of Sh.Rajinder Singh alongwith documents Exs.C1 to C18 and closed the evidence.The ld. counsel for the complainant has also tendered the documents Exs.C19 and C20 by way of additional evidence and closed the evidence.
The ld. counsel for the OP has tendered in evidence Ex.OPA affidavit of Pankaj Kumar, Authorized signatory of the OP,Ex.OPB affidavit of Sh.Amarjeet Singh, Prop. of Arora Associates, alongwith documents Exs.OP1 to OP8 and closed the evidence.
5. We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
6. At the outset, the ld.counsel for the OP has raised the objection that since the relief sought by the complainant is more than 20 lacs, therefore, this Forum has no peculiar jurisdiction to adjudicate the matter. To this effect the ld. counsel for the complainant has submitted that the complainant has sought the relief to the tune of Rs.19,95,500/- which is less than 20lacs , hence this Forum has the peculiar jurisdiction. It may be stated here that the prayer has been made by the complainant for issuance of directions to the OP to pay Rs.19,80,000/- alongwith interest @18% per annum and also to pay Rs.10,000/- on account of mental agony and physical harassment suffered by him alongwith litigation expenses of Rs.5500/-.The question which falls for consideration is as to whether, the interest component has to be added to determine the peculiar jurisdiction of Consumer Forum. In the case of Shahbad co-operative sugar mills ltd. Vs. National Insurance Co.Ltd. and another 2003 CPJ 81 (NC), the Hon’ble National Commission has held that as per provisions of the Consumer Protection Act,1986, the value of the goods purchased for services plus compensation claimed needs to be added only, interest component, is not to be added to determine the peculiar jurisdiction of the Consumer Fora , because interest claimed is pendendelite and future. If the interest part is excluded, the amount claimed in the relief clause in the present complaint is below 20 lacs. Hence this Forum has peculiar jurisdiction to adjudicate the matter and the objection raised by the OP is not sustainable .Hence rejected.
7. The ld. counsel for the OP has further raised another objection that the present complaint is barred by limitation because complainant got the vehicle in question insured for the period from 31.7.2012 to 30.7.2013 and the vehicle met with an accident on 25.10.2012 and the last communication with regard to the repair of the vehicle was sent on 13.3.2013 but the complainant did not handover the vehicle for repairs and for his fault he is not entitled for any claim. He submitted that the cause of action arose to the complainant lastly on 13.3.2013 and he could have filed the complaint within two years as per provisions of Section 24A of the Act. However, this complaint has been filed after the period of limitation. To this effect, the ld.counsel for the complainant has submitted that the vehicle in question was duly insured with the OP for the period from 31.7.2012 to 30.7.2013 and during the subsistence of the policy, it met with an accident on 25.10.2012. However, when the OP did not pay him the claim amount then he sent a legal notice upon it on 26.5.2014 through registered AD post.As such there is continuous cause of action and the complaint cannot be said to be barred by limitation.
8. From the perusal of letters dated 21.1.2013 and 13.3.2013, it is evident that the insurance company requested the complainant to take his vehicle to the local authorized workshop for its repair. As such cause of action accrued to the complainant lastly on 13.3.2013 . Merely by sending a legal notice on 26.5.2016 can not extend the period of limitation once it starts running out. In the case of Kandimalla Raghavaiah and Co. Vs. National Insurance Co. and others decided on 10 July 2009, the Hon’ble Supreme Court has held that by no stretch of imagination it can be said that the limitation can be extended by sending a legal notice for the purpose of Section 24A of the Act and the complaint which was not accompanied by an application for condonation of delay, was manifestly barred by limitation.Since the complainant has filed the present complaint beyond the prescribed period as envisaged in Section 24A of the Act, therefore same is liable to be dismissed solely on the ground of limitation because the principle of law has already laid down by the Hon’ble Supreme Court in the case of State Bank of India Vs. B.S.Agriocultural industries 11(2009)CPJ 29(SC), wherein it has been held that if the complaint is barred by time and yet the consumer forum decide the complaint on merit, the Forum would be committing an illegality.
In view of the aforesaid discussion, we hereby dismiss the complaint for want of limitation without touching the case on merit. Certified copies of this order be sent to the parties free of costs under the Rules. Thereafter, file be indexed and consigned to the Record Room.
ANNOUNCED
DATED:15.11.2017
NEENA SANDHU
PRESIDENT
NEELAM GUPTA
MEMBER
