1.       This appeal is preferred against the judgment and order dated 18/07/2011 passed in C.C.02/2010 by the Dist. Forum, Aurangabad , by which the said complaint has been dismissed.

 

2.       The  case set out  by the complainant in complaint   in brief is that the deceased Machindra Folane was a farmer and he was her husband. He died due to snake bite on 13/03/2006. She therefore submitted claim within stipulated time along with requisite documents through the opposite party No. 2 Tahsildar to the opposite party No. 1 insurance company seeking compensation of Rs 1,00,000/- under Farmer’s Personal Accident Insurance policy taken by the Government of Maharashtra. She did not receive compensation and therefore she claimed  Rs 1,00,000/-, sum assured  with interest along with compensation on account of mental harassment from the opposite parties.

 

3.       The opposite party No. 2 Tahsildar failed to appear before the Dist. Forum below inspite of  receiving notice of the complaint. Therefore   Dist. Forum proceeded ex-party against it.

 

4.       The opposite party No. 1 filed written version and resisted the claim on the ground that the deceased Machindra was not a farmer and that the claim submitted by the complainant was not received by it and hence it is not liable to pay compensation.

 

5.       The Dist. Forum below after hearing evidence brought on record dismissed the complaint holding that it is barred by limitation, as it is not filed within a period of two years from the date of death of complainant husband.

 

6.       Adv.A.M.Mamidwar appearing for the appellant/original complainant submitted  that in the case of Laxmi Bai- V/s- ICICI Lombard General Insurance Co. Ltd and others, the Hon’ble National Commission in bunch of Revision Petition Nos. 3118 to -3144 of 2010 decided on 5^th August 2011 has specifically made following observation.

 

i)        Where no claim is made either with nodal officer or the Insurance Company within 2 years of date of death such claims shall be barred by limitation.

ii)       Cases where claim is made to nodal officer or nodal officer has forwarded the claim to insurance company or claim has been directly filed with insurance company within 2 years of the death and the claim has remained undecided, in such a case the cause of action will continue till the day the Respondent/Insurance Company pays or rejects the claim.

iii)      In a case where the claim is rejected by the respondent/insurance company, the cause of action arises again from the date of such rejection”.

 

7.       On the other hand Adv.R.H.Dahat appearing for the respondent No. 1 insurance company submitted that cause of action arose on the date of death of the husband of complainant and that  complaint is time barred as it is not filed within two years from that date. He relied upon observations made in the following cases.

1)       Sudama Lal Madhwani – V/s- New India Assurance Co.Ltd,reported in II (2007) CPJ 144 (NC). In that case claim was repudiated on 06/10/1994 and the complaint was  filed in the year 1999. It is observed that limitation period tobe counted from      date of cause of action and even if it is assumed that letter of repudiation is not issued, complaint was time barred as it is not filed within two years from the date of submission of the claim to the insurance company in the year 1994.

2)       Kandimalla Raghavaiah & Co – V/s- National Insurance Co. & Anr., Reported in 2009 (4) CPR 17 (SC). The ratio laid down is that  Section 24 (A) of Consumer Protection Act           bars any Fora  set  up under said Act,  from admitting the complaint, unless the complaint is filed within two years    from the date of cause of action.

3)       Mr.Sameer Patil – V/s- ICICI Lombard General Insurance & Ors      reported in 2012 (2) ALL MR (JOURNAL) 21  (State Commission,        Mumbai).  It is observed by Hon’ble State Commission Mumbai     that cause of action commences from date on which     complainant suffers loss and not from date on which insurance        claim was repudiated.

4)       ICICI Lombard – V/s- Vithal Ramchandra Pawar and another,        in FA/1102/2008, decided of State Commission, Circuit Bench

at Aurangabad on 05/05/2010 . In that case though the complaint          was time barred no application for condonation of the delay was made. Therefore appeal was allowed and complaint was      dismissed.

5)       Rameshwar Fakirchand Totala – V/s- Santosh Raosaheb     Gavane (Dr), reported in 2011 (1) CPR 182 decided of State  Commission Mumbai Circuit Bench at Aurangabad. In that  case  complaint was not filed within two years from the date of       taking over possession of flat and no application for     condonation of delay was filed. It is held that Forum erred in       holding that complaint is within limitation and hence complaint     was dismissed.

Therefore, it is submitted by the learned advocate of the respondent that the appeal may be dismissed. The respondent No. 2 Tahsildar is absent though served with notice.

 

8.       At the out set it is worthy to note that the complainant had moved a separate application along with complaint before the Dist. Forum below for condonation of delay. The original opposite party No. 1 also filed reply to that application. Copies of the said application and reply are placed before us in this appeal. It is stated in that application by the complainant that the claim is neither settled nor repudiated and therefore the cause of action is continuous and if it is found there is a delay then it may be condoned, as she (complainant) is a illiterate lady and after lapse of long period when she did not get the amount of the claim, she contacted the respondent No. 1 Tahsildar and at that time she learnt that her claim is not settled.

 

9.       The Dist. Forum below did not consider the said application moved by the complainant for condonation of delay and held that as complaint is barred by limitation it deserves tobe dismissed without entertaining other issues involved in the complaint. In the above referred ( para No. 6 )  case of Laxshmi Bai,  the Hon’ble National Commission very  recently observed that the cause of action is continuous  when claim is made to the nodal officer and the claim has remained undecided. In the instant case complainants husband died on 13/03/2006 due to snake bite. The complainant submitted  the claim proposal to the nodal officer i.e. respondent No. 2 Tahsildar. The complainant produced copy of the letter dated 05/09/2006 written by respondent No. 2 Tahsildar to the respondent No. 1 insurance company showing that total  28 claim proposals receiving by it were sent by it to the respondent No. 1  Insurance Company on 31/03/2006. The complainant also produced extract of the list of the said 28 proposal showing that the one of the proposal at serial No. 28  was of the said complainant. Thus claim proposal was submitted within time to the Nodal Officer.  The said documents were not considered by the Dist. Forum below. In our view applying the aforesaid decision of the Hon’ble National Commission given in the aforesaid case of Laxshmi Bai, the cause of action is continuous as claim proposal was submitted by the complainant to nodal officer within a time and as said claim remained undecided. Therefore complaint can not be said tobe time barred.

 

10.     Even if it is assumed for the  sake of arguments that  complaint is time barred, the delay ought to have been condoned as there was no fault on the part of the complainant as she  had already submitted claim proposal to the Tahsildar within time. Therefore we hold that the impugned judgment and order can not be sustained under eye of law.

 

11.     It is seen from the papers produced by the complainant that it is proved that her husband Machindra Folane was a farmer and he died due to snake bite and therefore the complainant is entitled compensation of Rs 1,00,000/- under the Farmers Personal Accident Policy obtained by Government of Maharashtra. The respondent No. 1 insurance companty had no reason to refuse the claim of the complainant even after receiving the copies of all the requisite  documents during the pendency of the complaint. Therefore we hold that the complaint deserves to be granted for payment of compensation. The aforesaid decisions relied upon the learned advocate of respondent No. 1 are of no help  to the respondent No. 1. since the facts and circumstances of those cases are totally different from those of  present case. Hence, following order is passed.

1.                 The appeal is allowed.

2.                 The complaint bearing CC.No. 02/2010 is partly granted as under. The impugned order is set aside.  

i)                   The original opposite party No. 1/respondent No. 1 herein shall pay to the complainant/appellant compensation of Rs 1,00,000/- under Farmers Personal Accident Insurance Policy. The said amount be paid within a period of one month from today to the said complainant/appellant. In case of default the said amount shall carry interest @ 9 % p.a. till its realisation.

ii)      The opposite party No. 1/ respondent No. 1 shall also pay to the original complainant/appellant Rs 1000/- as compensation towards mental harassment and Rs 500/- towards cost of the complaint. 

3.                 Copies of the judgment and order be sent to both the parties.