Per – Hon’ble Mr. Justice S. B. Mhase, President

          Heard Adv. Irfan A. Shaikh for the Complainant.  This matter was kept yesterday i.e. 16/Nov/2011 for hearing on admission.  Since the point of limitation was raised by the State Commission in view of provisions of Section 24-A of the Consumer Protection Act, 1986 (‘the Act’ for brevity), the Learned Counsel for the Complainant sought time and has per his request the matter is placed today for admission.  Heard.

[2]     Section 24-A of the Act mandates the Consumer Fora shall not admit a consumer complaint unless it is filed within a period of two years from the date on which the cause of action has arisen and, therefore, a duty has been cast upon the Consumer Fora at the time of hearing the complaint for admission to see as to whether the complaint is filed within the prescribed period of limitation as provided under the said Section and further to see if there is a delay, whether any application for condonation of the delay is made. 

[3]     The facts involved in the present consumer complaint are as follows:-

          The Complainant has taken from the Opponent, namely – ICICI Lombard General Insurance Company (hereinafter referred to as ‘the Insurance Company’ for the sake of brevity) an insurance policy which is titled as ‘Home Safe Plus – Secure Mind Policy’.  Said insurance policy has been issued 28/7/2006 and the period of said insurance policy was from 28/7/2006 to 27/7/2011.  Under this insurance policy apart from home loan secured, further benefits and coverage have been provided for as stated in Clause No.7 of the insurance policy.  As per this clause, major medical illness and procedures have been provided and particulars of the same have been enumerated in Column No.2 of Clause No.7.  Column No.2 states about coverage insured events applicable:-

          “(a)    Diagnosis of the following illnesses, namely-

                   ………..

             (c)  Occurrence of the following medical events: List of covered events:- Stroke, Paralysis and Myocardial Infarction.”

[4]     In the last column of Clause No.7, the sum assured is stated to be of `41,14,000/-.  Rest of the part of Clause No.7 is not relevant and, therefore, not reproduced.  In paragraph (02) of the Schedule of the said policy, definitions have been provided for and in Clause No.(2.1) thereof, there is a definition of ‘Myocardial Infarction (Heart Attack)’, which reads as follows:-

“The first occurrence of an acute myocardial infarction leading to the death of a portion of heart muscle (Myocardium) as a result of inadequate blood supply to the relevant area.

The diagnosis for the same must be evidenced by all of the following:-

·        An episode of typical chest pain.

·        The occurrence of a typical new acute infarction (ST-T elevation) on the electrocardiograph and progressing to development of pathological Q waves

·        Elevation of Cardiac Troponin (T or I) to atleast 3 times the upper limit of normal reference range or an elevation in CPK-MB to atleast 200% of the upper limit of the normal reference range.

But excluding non-STEMI with elevation of troponin I or T.  Other acute coronary syndromes including but not limited to angina or chest pain are excluded from this definition.”

[5]     Relying upon these clauses, the Complainant has made an insurance claim.  The Complainant was admitted in Shraddha Polyclinic & Nursing Home ICCU for the period 29/7/2007 to 5/8/2007 and the diagnosis as disclosed from the Discharge Card was – ‘Anterolateral wall non-Q wave Infarct → changes regressed Pancarditis’.  Therefore, according to the Complainant, he had suffered ‘Myocardial Infarction and he is entitled to recover the amount on the basis of insurance policy as stated in Clause No.7 of the said insurance policy referred to above and an amount of `41,14,000/-.  The claim in this respect was made to the Insurance Company by the Complainant on 6/5/2009.  However, said claim was repudiated by the Insurance Company on 11/9/2009 and thereafter, the present consumer complaint was filed before this State Commission on 14/6/2011.

[6]     Admittedly, according to the Complainant, the Complainant was treated for the period 29/7/2007 to 5/8/2007 and was discharged from the hospital.  Though thereafter he may be under a medical treatment but, he was not hospitalized.  Not only that but, he made a claim on 6/5/2009 from the helpline and his claim is reflected vide Claim No.60509100.  Claim made by the Complainant has been repudiated by the Insurance Company on the ground that within a period of thirty days after the occurrence of ‘Myocardial Infarction’ the information was not given to the Insurance Company as per the terms and conditions of the insurance policy and it was communicated to the Insurance Company on 11/9/2009.

[7]     The words and expression ‘cause of action’, as observed by the Apex Court has not been defined under the Consumer Protection Act, 1986 and/or Code of Civil Procedure.  ‘Cause of action’ is/are bundle of facts which taken together makes a Complainant and/or plaintiff entitled to the relief claimed in the complaint or a plaint and there is a long standing precedents in respect of ‘cause of action’ and the Apex Court has explained it in number of cases.  One of such relevant cases we could refer is the decision of the Apex Court reported in the case of Kandimalla Raghavaiah & Co. V/s. National Insurance Co .Ltd. ~ III-(2009)-CPJ-75-(SC).  When we invited attention of Learned Counsel for the Complainant to this decision, he submitted that ‘cause of action’ in the present case has arisen on the date when his claim was repudiated by the Insurance Company by issuing a letter dated 11/9/2009 and, therefore, the present consumer complaint which is filed on 14/6/2011 is within limitation.  The whole difficulty is that Section 24-A of the Consumer Protection Act, 1986 speaks about ‘cause of action’ but, does not specify that the cause of action arises on rejection or repudiation of the insurance claim.  Basically, if we take into consideration bundle of facts which we have enumerated above, the Complainant, if at all has become eligible to get the amount under the insurance policy on the date when he suffered myocardial infarction, we could reasonably say that while he has hospitalized he may not be in a position to make a claim but, no doubt, after discharge from the hospital he is supposed to make a claim to the insurance company.  However, what we find that even though he was discharged from the hospital on 5/8/2007 he did not lodge any claim with the Insurance Company till 6/5/2009 and when he lodged that claim, it was considered and repudiated on 11/9/2009.  Thus, what we find that the date on which the Complainant became eligible to get the amount of insurance policy is the date on which the cause of action commences i.e. the date on which he suffered myocardial infarction that date is 29/7/2007 or without being much technical of it we can safely say that on the date of discharge he become eligible to get the amount i.e. 5/8/2007.  It is well-settled principle of law in case of cause of action that cause of action once commences to run, it never stops.  We are aware that under Limitation Act, 1963 there are provisions which provide for stopping of cause of action even though it commenced when the person who is supposed to file a suit suffers from a disability, namely, minority and/or mental disability.  However, in that event also the cause of action starts to run from the date on which disability is removed.  However, said provision has not been incorporated under the Consumer Protection Act, 1986 and apart from that we are not called upon to consider the case of the Complainant for disability.  On the contrary, what we find that after the discharge of the Complainant from hospital on 5/8/2009, it appears that the Complainant registered a claim with the Insurance Company in the month of August-2007 as per provisions of the insurance policy but, the said claim was rejected by the Insurance Company outrightly on telephone.  What we find that the reason for repudiation is not material.  Reason may be any reason, which may be absolutely illegal or illogical.  The question is the Complainant was aware of his claim and he made a claim and it was rejected telephonically by the Insurance Company.  That is the fact as stated by the Complainant himself in his consumer complaint.  Therefore, what we find that first rejection is in the month of August-2007 and the second repudiation is on 11/9/2009.  Total analysis of these facts show that cause of action has taken place between 29/7/2007 to 5/8/2007 and from that date the cause of action once started has never stopped and, therefore, the date on which consumer complaint was presented, it was absolutely time-barred and thus, we find that present complaint is a time-barred complaint and it should have been filed alongwith an application for condonation of delay as provided under the Consumer Protection Act, 1986.  For the reasons best known to the Complainant, an application for condonation of delay has not been filed alongwith the consumer complaint.

[8]     We want to place on the record that when yesterday the matter was heard and when the learned counsel tried to rely upon the fact that the cause of action has arisen on the date when his claim was rejected having found that this is a consumer litigation, we have invited attention of the Learned Counsel for the Complainant to Article-44 of the Limitation Act, 1963.  Said Article reads as follows:-

“

”

 [9]    Clause (b) of Article-44 of the Limitation Act, 1963 is relevant.  This provides for period of limitation of three years and in last column it states when the period of limitation starts to run and as per this article the date of occurrence causing the loss, or where the claim on the policy is denied, either partly or wholly, the date of such denial.  Therefore, this provision provides that the limitation starts from the date of denial of the claim by the Insurance Company.  However, this Article is not applicable to Section 24-A of the Consumer Protection Act, 1986.  It is applicable to the civil suits to be filed in the Civil Court.  Having gone through these provisions, we realized that the claim if filed within that period by the Complainant in Civil Court may be within limitation relying upon this article.  We are aware of Section-3 of the Consumer Protection Act, 1986 which specifically states that provisions of the said Act are not in derogation of but are in addition to the provisions of existing laws and we further realize that the remedy available under this Act is a summary remedy.  A full-fledged remedy of the Civil Court is available under the law to the Complainant instead of choosing the remedy under the Consumer Protection Act, 1986 and, therefore, going out of way in the interest of the consumer we suggested that the complaint may be withdrawn at their choice and file it before the Civil Court by way of a civil suit on taking benefit of the Limitation Act, 1963.  Thereupon, the Learned Counsel for the Complainant requested for grant of time.  We granted time, as stated earlier, but today instead of making decision as to whether or not to withdraw the complaint, he decided to argue the matter relying upon Section 24-A of the Consumer Protection Act, 1986 and he tried to satisfy the State Commission as to how the complaint as filed is within limitation and, therefore, there is no other alternative left for us but, to decide the complaint on the point of limitation and under these special circumstances, point of limitation has been decided.

[10]    It is the Complainant who himself by this method has foreclosed his remedy though available under the law before the Civil Court and prosecute the present complaint because ultimately when there are two remedies it is choice of the party to select a particular remedy and the Complainant selected a remedy available to him under the Consumer Protection Act, 1986 instead of best remedy available to him.  Under these circumstances when sympathy shown is denied the Complainant is not entitled for any other relief.  We find that the complaint is not within limitation.  It is hereby rejected.  Order accordingly.

Pronounced and dictated on 17^th November, 2011