Per Shri P.N.Kashalkar, Hon'ble Presiding Judicial Memer:

        This is an appeal filed by org.complainant whose complaint has been rejected by the District Consumer Redressal Forum, South Mumbai by its order dated 18/11/2009 since complaint was barred by limitation and District Consumer Redressal Forum rejected the application for condonation of delay and had not taken any cognizance of the complaint.  As such, complainant has filed this appeal. 

Facts to the extent material may be stated as under:

Complainant had filed consumer complaint bearing no.C-259/2008 against insurance company on 25/12/2008. It was through Consumer Welfare Association.  Complaint was filed along with delay condonation application and it was the contention of the complainant that Ombudsman rejected  complainant’s claim vide its letter dated 10/10/2007 and therefore, complaint filed by the complainant was within limitation.  The complainant could not file this complaint due to personal difficulty of representative of Consumer Welfare Association, whose mother was critically ill at the relevant time and she expired in the course of time.  The order of Ombudsman was passed on 10/10/2007.

Opp.party contested this application for delay condonation and prayed for rejection of prayer made for condonation of delay.  According to opp.party/insurance company, repudiation of the claim was conveyed to the complainant vide letter dated 10/10/2007 and under Section 24-A of Consumer Protection Act, 1986 the complaint was required to be filed within a period of two years from the date of cause of action.  Insurance company vehemently submitted that date of cause of action would be the date of repudiation of claim.  So, from the date of repudiation within two years the complainant had not filed the consumer complaint and therefore, it is absolutely barred by limitation.  No proper explanation is given by the complainant for the delay caused in filing the complaint and therefore, insurance company submitted that delay application should not be allowed and it should be rejected and complaint should not be admitted.

 Considering the contention raised, the Forum below in its impugned order observed that a claim of the complainant was rejected on 14/12/2005.  Cause of action for filing the consumer complaint took place on date of repudiation of claim and therefore, it was necessary for complainant to file the consumer complaint within period of two years i.e. from 14/12/2005 and complaint was filed on 22/12/2007 i.e. more than three years from the date of accrual of cause of action and therefore, Forum below was pleased to reject the application for condonation of delay.  Aggrieved by the said rejection the original complainant has filed this appeal.

        We heard submissions of Mr.J.B.Gai/Authorized Representative for the appellant and Adv.Mr.A.S.Vidyarthi for respondent.

        Mr.G.B.Gai/A.R. vehemently submitted before us that it is not the first repudiation of the claim by the insurance company.  It is the repudiation of the representation made by the insurance company Ombudsman.  So, delay if any should be decided with reference to the original letter sent by insurance company  and not  with reference to the representation made by the complainant to the insurance company’s Ombudsman and if viewed  from this angle  Mr.Gai submitted that delay would be lesser than three years roughly.  It would be roughly of one year and fourteen months.  He filed an application for that purpose and copy of said application is at page 60 of appeal compilation.  In this application, it is pleaded that no doubt the complaint was required to be filed within period of two years from the date of repudiation but complainant has made representation to the in-house Ombudsman and had approached in-house Ombudsman of the insurance company and he was under belief that his client may get relief from the Ombudsman and therefore, immediately after repudiation of the claim by the insurance company he did not think it fit and proper immediately to file a consumer complaint but his client approached insurance company Ombudsman with a hope that he may get adequate relief from the insurance company’s Ombudsman itself and with that belief he has approached Ombudsman but unfortunately Ombudsman was pleased to reject his claim by order dated 1010/2007 and within 14 months he filed consumer complaint. 

Mr Gai/ A.R. for appellant submitted that this Commission should decide this appeal in the larger interest of consumers at large.  If the consumers are under the reasonable belief that there would be period of limitation available after they had approached insurance company’s Ombudsman like in the present case, then that belief should be taken into account while allowing the delay condonation application. He also submitted that normally his client would not have approached insurance company’s Ombudsman.  But his client had a reasonable belief that he will get some relief from Ombudsman.  He submitted that delay in prosecuting the claim before insurance company Ombudsman should be excluded and cause of action be deemed to have occurred from the date when order dated 10/10/2007 was passed by the Insurance Ombudsman and if limitation is held to be starting from 10/10/2007 then his client filing consumer complaint on 19/12/2008 must be held within limitation and there is no question of condonation of delay application.  But on a fair side he had filed application for condonation of delay and had prayed that delay if any should be condoned in the interest of justice and also requested that his client  could not filed a consumer complaint since client’s A.R. was unable to do so as his mother was seriously ill and ultimately he lost his mother.  So, he prayed that delay if any should be condoned and by allowing this application delay should be condoned and complaint should be admitted.

        Adv.Vidyarthi vehemently submitted before us that cause of action starts in each insurance claim from the date of repudiation of claim and if the insured already approached insurance company Ombudsman that would not extent the cause of action.

        In the facts and circumstances of the case it must be held that complaint was filed within limitation for the simple reason that even in the repudiation letter insurance company invariably informed the insured that if he is aggrieved by the repudiation letter, they should approach insurance company Ombudsman.  Adv.Vidyarthi told us that in the instant case that in repudiation letter his company had not given understanding to the complainant that he could file representation before the insurance company Ombudsman if he is not satisfied with the repudiation letter sent by him.  However, that apart against the repudiation letter insured had got right to make official representation before insurance company Ombudsman and therefore, if he thought that he should wait till insurance company Ombudsman rejects his claim, it cannot said that he was committing any legal wrong.  What is pertinent to note is the fact that insurance company Ombudsman is having powers either to allow the representation or to reject the representation.  If insurance company Ombudsman is pleased to allow the insured’s representation, then insurance company has to follow the same finding and has to pay accordingly.  So, in the circumstances, the complainant thought it fit to make representation with the insurance company Ombudsman, it cannot be said that he waited without any basis.  So, the period during which time he prosecuted the claim before insurance company Ombudsman must be held to have the extended period of filing consumer complaint to that extent.  It means when insurance company Ombudsman rejected the claim on 10/10/2007, it must be held that cause of action got extended till that time and only after rejection of insurance company Ombudsman that cause of action must be held to have started and from that date onwards the consumer  complaint must be filed by the aggrieved party.  To the same effect there is judgment of Hon’ble National Commission, New Delhi passed in case of   Super Paper Mills Ltd. V/s. National Insurance Co.Ltd. II (1197) CPJ 36 (NC ).  There was a complaint filed be Hon’ble National Commission in respect of fire occurred in October 1996.  Insurance claim was rejected on 14/11/1986.  Thereafter, representation was made before opp.party.  Opp.party then appointed surveyor.  Surveyor submitted report on 24/04/1989 and filed representation was made on 25/8/1994. Complaint came to be filed on 7/06/1995. National Commission held that claim filed was within limitation because it was filed within period of two years from final representation rejected by the insurance company on 25/08/1994.  In the like manner, in our case the insurance company no doubt repudiated the claim on 14/12/2005 and thereafter, complainant made representation before insurance company Ombudsman.  Insurance company Ombudsman turned down the representation by order dated 10/10/2007 and from that date, it can be said to be a final repudiation as far as insurance company is concerned  (because it was the representation made to insurance company Ombudsman whose order is binding on the insurance company).  This was the repudiation of the insurance claim finally and from that date consumer complaint came to be filed within two years. Acting upon the facts and circumstances mentioned, supra, which prompted National Commission to hold that complaint filed on 07/06/1995 was within limitation though fire had occurred in October, 1986.  In our case the insurance company’s Ombudsman  rejected the claim on 10/10/2007 and we find that consumer complaint filed by the complainant on 22/12/2008 was within limitation.  Dismissal of complaint is held to be bad in law and cannot be allowed to sustain in law.  We therefore, allow this appeal by setting aside the order dated 18/11/2009 passed by District Consumer Redressal Forum, South Mumbai and hold that complaint filed by the complainant is within limitation and remand this complaint back to the District Consumer Redressal Forum, South Mumbai.  Hence, we pass the following order:-

                                        :-ORDER-:

1.           Appeal is allowed.

2.           Impugned order dated 18/11/2009 passed by District Consumer Redressal Forum, South Mumbai is hereby quashed and set aside.

3.           Complaint no.259/2008 is remitted back to the District Consumer Redressal Forum and both the parties are directed to appear before District Consumer Redressal Forum, South Mumbai on 16/01/2011.

4.           Parties are left to bear their own costs.

5.           Copies of the order herein be furnished to the parties as per rule.