1.       The present First Appeal has been filed by the Appellant/Complainant in the Complaint before the State Commission (hereinafter to be referred to as “the Complainant”) under Section 51 of the Consumer Protection Act, 2019 (hereinafter to be referred to as “the Act”) against the Order dated 21.09.2021, passed by the Telangana State Consumer Disputes Redressal Commission, Hyderabad (hereinafter to be referred to as “the State Commission”) in Consumer Complaint No. 45 of 2015. By the Impugned Order, the State Commission while holding the Opposite Party No.2 & 3, the Insurers (hereinafter to be referred to as “the Insurers”) liable to compensate the Complainant for the lift accident, has dismissed the Complaint filed by the Complainant/Appellant herein as barred by limitation.

2.       Brief facts of the case as culled out from the Complaint are that the Complainant was working as Marketing Supervisor and for business purposes he used to visit different towns and cities. During his business visits to Secunderabad he used to stay at Hotel Shyam Lodge, Opposite Party No.1 (hereinafter referred to as “the Hotel”). On 11.03.2012, he came to Secunderabad and stayed at the Hotel. On the following day i.e. on 12.03.2012 at about 6 P.M. he met with an accident during the course of his stay at the Hotel while attempting to use the Lift Service provided at the Hotel. Immediately, he was admitted in Sunshine Hospital, Paradise Circle, Secunderabad for treatment and was discharged on 16.03.2012 after amputation of his right leg above knee. Thereafter, he was taken to his home town in Ahmedabad where he took treatment and regular dressing at Hari Krupa Hospital-Ahmedabad from 17.03.2012 onwards for about 3 months for post amputation medical care. The accident resulted in permanent partial disablement which affected his earning capacity. Complainant spent huge amount on his treatment but in vain. Hence, Complainant served a Legal Notice dated 10.03.2013 upon the Hotel holding them negligent in service and claiming a compensation of ₹50,00,000/- (Rupees fifty Lakh only).  In reply to the said Legal Notice, the Hotel suggested the Complainant to approach the Opposite Party No.2 and 3, the Insurers as they were covered by Public Liability Insurance Policy obtained from them. They also forwarded a photo copy of the policy to the Complainant. According to the Complainant, he had paid the rent to the Hotel for using the facilities provided by them including lift and as such they were liable to compensate him.  It was averred that the Hotel was deficient in service as they had not made proper and safe arrangements of the lift facility at their premises for the convenience of their customers and they were equally liable to compensate him adequately for the permanent partial disability. As the Opposite Parties refused to compensate the Complainant for permanent partial disability, he, left with no other option, alleging deficiency in service on the part of the Opposite parties, filed a Consumer Complaint before the State Commission seeking following relief:-

(i)      Direct the Opposite Party No.1 to pay an amount of ₹1,50,000- towards medical expenses for amputation and post medical treatment and ₹2,50,000/- towards artificial limb in total  ₹4,00,000/-  along with interest @12% from the date of loss till the date of payment;

(ii)     Direct the Opposite Party No.1 to pay ₹50,00,000/- as compensation for the unbearable pain, shock, suffering and loss of earning capacity as a result of the accident, permanent partial disablement etc.

(iii)    Costs of ₹2,50,000/- and grant other relief as deem fit and proper in the interest of justice. 

3.       Upon notice, the Complaint was contested by the Hotel stating that; the accident occurred as a result of the Complainant’s own negligence and such a case ought to have been filed in a Civil Court; Complaint is hopelessly barred by limitation as it has been filed after three years from the date of accident in question; the Complainant is not a “Consumer” as defined under the Act; Complainant should have taken reasonable care to avoid such an incident; there was regular maintenance of Hotel as well as the amenities provided in the Building including the Lift; the Hotel was  covered under the Policy valid from 10.06.2011 to 09.06.2012; the lift was of a reputed brand known as ECE; the lift was well maintained by payment of monthly maintenance charges; etc.  

4.       The Opposite Party No.3 Insurance Company also resisted the Complaint denying all the allegations made by the Complainant in the Complaint and justifying the repudiation of the Complainant’s claim.

5.       After perusal of the material available on record and the evidence adduced by the parties, the State Commission came to the conclusion that the Hotel was negligent in not properly maintaining the Lift and since they were covered under a Policy for any act of omission to a third party, the Opposite Party No.2 & 3 were liable to indemnify to the tune of ₹10,00,000/- to the Complainant. However, the State Commission dismissed the Complaint as time barred on being filed after three years from the date of cause of action. The State Commission observed as under:-

“        There are catena of authorities on the aspect that issuance of legal notice cannot be taken as revival of cause of action and the period of limitation do not start from the date when the legal notice was issued or reply is received but the date of incident in question has to be taken into consideration for determining the question as to whether the complaint is filed within the period of limitation or not. Therefore, the contention of the Complainant that the limitation starts from the date of legal notice which is one year after the date of incident cannot be accepted.

It may be stated that nothing prevented the Complainant from seeking condonation of delay either by praying for it in the complaint or by filing an independent application which is mandatory inasmuch as satisfactory reasons are required to be shown for condoning the delay and the Forum/ Commission is required to record reasons for condoning such delay as per the proviso to Sec.24-A(2) of the Act. The complainant was under the misconception that since the legal notice was issued on 10.03.2013 and the complaint having been filed on 09.03.2015 is within limitation which is not correct. The wording of Section-24A of Act No.68 of 1986 clearly mandates that a Consumer Court shall not admit a complaint if it is not filed within the period of two years.

          In view of the foregoing discussion, we have no option except to hold that the present complaint is barred by limitation and the same is not maintainable.  This point is accordingly answered against the Complainant”

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When an insurance policy is taken a legal relationship with the insurance provider is formed and in this relationship the first party is opposite party no.1 and the opposite parties 2 and 3 are the second party. The 'third party’ is someone who does not have any involvement with creating this contract, but could be affected by it. This is usually a member of the public who could be a customer/ client. If they are injured, the opposite parties 2 and 3 are faced with a compensation claim and they are responsible to fulfill their obligation. It is another way of describing Public Liability Insurance, which is a core cover for businesses. The Complainant grievously injured within the Hotel/Opp. Party no. 1.

There is no gainsaying the fact that opposite party no.1 should take all the necessary care of his customers but in spite of all the precautions if something untoward occurs and he has taken the insurance coverage, then the insurance company needs to compensate the loss suffered. Therefore, the beneficiary under this policy is the injured party- the complainant. The complainant has filed his salary certificates and he was drawing a handsome sum of Rs.26,000/- p.m. vide Ex.A16 and is now left without any visible means of employment. Taking the degree of tragedy and loss into consideration and the inordinate lapse of time in providing him with the required financial assistance, we consider the opposite parties 2 and 3 liable to compensate him in the interests of justice.

Although opposite party no.1 is responsible to compensate the complainant but since he has insured himself through opposite parties 2 and 3, the liability shifts to the insurance company to indemnify the insured whose interests have been insured by the insurance company. In the light of the foregoing discussion, the opposite parties 2 and 3 are directed to adequately compensate the complainant for his trauma and angst suffered.

In view of the foregoing discussion, it is held that the complainant is entitled to be compensated and this amount is quantified at Rs.10 lakhs Points 2 and 3 are accordingly answered in favour of the complainant.”

7.       Dis-satisfied with the Order dated 21.09.2021, the Appellant/Complainant has filed the present Appeal before us praying for setting aside the said order.

8.       I have heard the learned Counsel for the parties at some length and also perused the material available on record. I have also carefully gone through the written submissions filed on behalf of the Respondent No.1 Hotel.

9.       Mr. Bharat Malhotra, learned Counsel appearing for the Appellant/Complainant rigorously submitted that the Cause of Action arose in favour of the Complainant for the first time on 12.03.2012 when the lift accident took place at the Hotel premises at Secunderabad; it arose again on 14.03.2013 when the claim dated 10.03.2013 made by the Complainant through his counsel Mr. D.S. Dalal was denied by the Opposite Party Hotel. He further submitted that the Cause of Action was continuing one at the time of filing the Complaint as the same was evident from a reading of Section 18 of the Limitation Act 1963 (hereinafter referred to as the “Limitation Act”). Placing reliance on Section 18 of the Limitation Act, he contended that fresh period of limitation shall be computed from the time when the acknowledgement of liability was so signed by the Opposite Party No.1 Hotel. He further submitted that doctrine of acknowledgement is based upon the principle of admissions and it starts a fresh prescribed period from the date of the acknowledgement (the date of acknowledgement not included). It is submitted that there is acknowledgement of the liability on behalf of the Hotel and benefit of doubt has to be given to the Complainant. He further urged that denial of the Amount as claimed in the Legal Notice by the Hotel tantamount to a new cause of action and since the Consumer Case was filed within 2 years from the said date, the Complaint was within time and there was no delay in filing of the Complaint. He also argued that the compensation awarded by the State Commission is on the lower side keeping in view the income status of the Complainant and the injury suffered by him due to lift accident. In support of his contention, he has placed reliance upon the judgement of the Hon’ble Supreme Court in the case of R.D. Hatangadi v. Pest Control (India) Pvt. Ltd. I (1995) ACC 281, wherein it was held that while fixing the amount of compensation payable to a victim of an accident the damages had to be assessed separately as pecuniary damages and special damages.

10.     Per contra, Mr. Tarun Gupta, learned Counsel appearing for the Respondent No.1 supported the detailed and well-reasoned Order passed by the State Commission based on the proper appreciation of the facts of the case and the evidence adduced by the parties. It is contended by him that as per the Complainant's own admission, the alleged cause of action accrued on 12.3.2012, when the he met with an accident while attempting to use the lift at the Hotel. The limitation period of two years for filing the Consumer Complaint as provided under the Act expired on 12.3.2014. However, the Consumer Complaint was filed only on 9.3.2015. Hence, there was a delay of almost one year in filing the Consumer Complaint as against the two years’ period prescribed under the Act. Thus, the complaint being hopelessly barred by time was rightly dismissed by the learned State Commission. He further urged that despite there being an inordinate delay, the Complainant neither filed any application seeking condonation of delay nor gave any explanation/sufficient cause/reasons in the Complaint for such a huge delay in filing the Complaint. It is submitted by him that in the absence of application seeking condonation of delay, the delay in filing the complaint cannot be condoned. Placing reliance upon the judgement of the Hon'ble Supreme Court in the case of State Bank of India Vs B.S. Agriculture Industries, (2009) 5 SCC 121, Kandimalla Raghavaiah & Co. Vs. National Insurance Company Ltd. – (2009) 7 SCC 768  and V.N. Shrikhande Vs Anita Sean Fernandes, - (2011) 1 SCC 53, he submitted that the Consumer Forum must deal with the Complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action. Hefurther submitted that mere sending of letters by the Complainant to the Opposite Party does not extend the period of limitation. He further urged that similar allegations of there being negligence on the part of Hotel in not properly maintaining lift had been disbelieved by the Criminal Court. Complainant had lodged an FIR regarding the alleged incident but the learned Trial Court after carefully scrutinizing the evidence produced on record by the prosecution acquitted the partner of Respondent No. 1 Hotel.

11.     I have given my thoughtful consideration to the rival contentions of the Learned Counsel for the parties. In view of the law laid down by the Hon’ble Supreme Court in the case of M/s Singal Udyog vs National Insurance Company Ltd., in Civil Appeal no. 9161 of 2019 decided on 02.12.2019, I am of the considered view that there is merit in the submission of the Learned Counsel for the Hotel that once the State Commission has arrived at a conclusion that the Complaint was barred by limitation, it was not open to it to examine the matter on its merit and the question of merit ought to be kept open. The Hon’ble Apex Court in the aforesaid Judgment has held as under:-

“        We have heard learned counsel for the parties and have perused the record.

The issue whether a Tribunal or a Forum, after having come to the conclusion that the matter was barred by limitation, could consider merits of the matter, was gone into by this Court in State Bank of India vs. B.S. Agriculture Industries (2009) 5 SCC 121 as under:-

“    As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. 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 aforesaid view was relied upon by the Division Bench of the Allahabad High Court in Commissioner, Customs, Central Excise and Service Tax vs. Monsanto Manufacture Pvt. Ltd. 2 (2014) 45 GST 699 (Allahabad) to observe as under:-

“    The Tribunal came to the conclusion that the demand by the Revenue was beyond the period of limitation of one year prescribed under Section 73(1) of the Finance Act, 1994 and that the period of five years could not have been invoked. That part of the judgment of the Tribunal has been confirmed in the companion appeal. Once that be the position and the Tribunal having came to the conclusion that the extended period of limitation could not have been validly applied, the Tribunal, in our view, acted outside its jurisdiction in entering upon the merits of the dispute on whether the demand for duty should be confirmed. Once it is held that the demand is timebarred, there would be no occasion for the Tribunal to enquire into the merits of the issues raised by the Revenue.”

      In the circumstances, the National Commission, having found that the appeal was barred by time, could not have dealt with merits of the matter.”

12.     In the present case also, the State Commission has committed a grave error by deciding the complaint on its merit after coming to the conclusion that the complaint filed by the Complainant was beyond the period of limitation of two years.

13.     Placing reliance upon the Section 18 of the Limitation Act, 1963, Learned Counsel for the Complainant submitted that the period of limitation should be calculated from the date of giving reply dated 14.03.2013 by the Opposite Party Hotel to his Legal Notice dated 10.03.2013. For ready reference the said Section is reproduced as under:-

“18. Effect of acknowledgment in writing.—(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received.

Explanation.—For the purposes of this section,—

(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed to a person other than a person entitled to the property or right,

(b) the word “signed” means signed either personally or by an agent duly authorised in this behalf, and

(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.

14.     The said contention of the Learned Counsel for the Complainant is mis-conceived. In the reply to the legal notice sent by the Complainant, there is no acknowledgement of any liability.  The Opposite Party Hotel has only suggested the Complainant to approach the Insurers for his claim, if any. As such, the Section 18 of the Limitation Act is not applicable to the facts of the present case.

15.     Apart from this, in catena of the judgements, the Hon’ble Supreme Court as well as this Commission has held that issuance of legal notice or the correspondence between the parties cannot extend the period of limitation. In the case of Kandimalla Raghavaiah & Co (Supra) the Apex Court has held as under:-

“        By no stretch of imagination, it can be said that Insurance Company's reply dated 21st March, 1996 to the legal notice dated 4th January, 1996, declining to issue the forms for preferring a claim after a lapse of more than four years of the date of fire, resulted in extending the period of limitation for the purpose of Section 24A of the Act. We have no hesitation in holding that the complaint filed on 24th October, 1997 and that too without an application for condonation of delay was manifestly barred by limitation and the Commission was justified in dismissing it on that short ground.”

16.     In another case of State Bank of India (Supra), the Hon’ble Supreme Court has observed as under:-

“        Learned counsel for the complainant would, however, submit that the complainant sent various letters to the Bank and vide their reply dated March 11, 1997, the Bank asked the complainant to forward a copy of the letter dated May 4, 1996 for necessary action. It was thus contended by the learned counsel for the complainant that complaint filed on May 5, 1997 was within time. We are afraid the letters dated March 15, 1995, May 4, 1996 and March 1, 1997 sent by the complainant to the Bank and the Bank's reply dated March 11, 1997 are of no help to the complainant. The Bank has not by their reply dated March 11, 1997 acknowledged its liability. The Bank only wanted the complainant to send a copy of the letter dated May 4, 1996 for necessary action.

By no stretch of imagination, it can be said that the limitation came to be extended by Bank's reply dated March 11, 1997. As a matter of fact, the Bank had communicated to the complainant long back vide its letter dated March 28, 1995 that the bills have been returned to B.M. Konar (Sales Manager of the complainant firm) on May 10, 1994 and the matter should be taken up with him (B.M. Konar). The complaint filed on May 5, 1997 is even beyond two years therefrom. There is no application for condonation of delay nor any sufficient cause shown and, therefore, the question of condonation of delay in filing the complaint does not arise.”

17.     Further, in the case of V.N. Shrikhande (Supra) the Hon’ble Apex Court has reiterated its earlier view and held as under:-

“        A reading of the above noted provisions makes it clear that the District Forum, the State Commission and the National Commission are not bound to admit each and every complaint. Under Section 12(3), the District Forum is empowered to decide the issue of admissibility of the complaint. The District Forum can either allow the complaint to be proceeded with, which implies that the complaint is admitted or reject the same. A similar power is vested with the State Commission under Section 18 and the National Commission under Section 22. If the concerned forum is prima facie satisfied that the complainant is a `consumer' as defined in Section 2(d) and there is a `defect', as defined in Section 2(f) in relation to any goods or there is `deficiency in service' as defined in Section 2(g) read with Section 2(o) and the complaint has been filed within the prescribed period of limitation then it can direct that the complaint may be proceeded with. On the other hand, if the concerned forum is satisfied that the complaint does not disclose any grievance which can be redressed under the Act then it can reject the complaint at the threshold after recording reasons for doing so.

Section 24A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. In other words, the consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A(2), the consumer forums will have no option but to dismiss the same. Reference in this connection can usefully be made to the recent judgments in State Bank of India v. B.S. Agricultural Industries (I) (2009) 5 SCC 121 and Kandimalla Raghavaiah and Company v. National Insurance Company and another (2009) 7 SCC 768.”

18.     In the present case, the Complainant met with an accident while using the lift of the Hotel on 12.03.2012 and the legal notice was sent by him to the Hotel claiming compensation only on 10.03.2013 i.e. one year after the date of lift incident. The Legal Notice was replied by the Hotel on 14.03.2013 suggesting him to pursue his case with the Insurers as they were covered under the Insurance Policy for any of their omission. As per Section 24A of the Act, a complaint under the Act is required to be filed within a period of two years from the date of cause of action.  In the present case, the cause of action has occurred in favour of the Complainant only on 12.03.2012 when the lift incident has taken place, however, the Complaint was filed before the State Commission by the Complainant only on 09.03.2015 i.e. beyond the limitation period of two years. As such, the Complaint was barred by limitation.  A bare perusal of the afore-extracted Orders passed by the Hon’ble Apex Court would reveal that issuance of any legal notice or sending of any letter/communication does not extend the period of limitation as specifically prescribed under the Act. Moreover, no application seeking condonation of delay of one year along with Complaint has been filed by the Complainant explaining and justifying the reasons for the delay. Hence, the Complaint filed by the Complainant on 09.03.2015 was hopelessly time barred and in view of the principle laid down by the Hon’ble Supreme Court in the case of Singal Udyog’s (Supra), State Commission was not justified in enquiring the matter on its merit. However, the Impugned Order passed by the State Commission does not suffer from illegality.

In view of the foregoing discussions as the State Commission had rightly dismissed the complaint as barred by limitation, I am of the considered opinion that the First Appeal filed by the Complainant is devoid of any merit and is dismissed accordingly.