Delhi

North East

CC/299/2017

Sageer Ahmad - Complainant(s)

Versus

M.K. Communication - Opp.Party(s)

24 Oct 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 299/17

 

In the matter of:

	Shri Sageer Ahmad S/o Shri Dilshad R/o 410, Near Delhi Jal Board Water Tank Mandoli Village, Delhi-110093	Complainant
	Versus
1       2           3	M. K. Communication M-5/A-3 Dilshad Garden Delhi-110095   Gadgetcops Pikserv RMP Electronics A-83, Sector-2, Noida, Uttar Pradesh Pin code-201301   The New India Assurance Company R-7A, Main Green Park, New Delhi-110016	Opposite Parties

 

DATE OF INSTITUTION:  JUDGMENT RESERVED ON:               DATE OF DECISION  :

04.10.2017 24.10.2019 24.10.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Shorn of unnecessary details, the present complaint pertains to non release of theft claim of mobile insurance taken by the complainant with respect to Samsung mobile Grand 2 Model no. 7102 purchase from OP1 on 11.04.2014 for a sum of Rs. 22,500/- vide Book No. 118/ Invoice no. 7363 for which insurance against theft, accidental and liquid damage and protection against mechanical and electric fault vide plan no. 1006288 was taken from OP2 from 11.04.2014 to 11.04.2015 under the stamp and seal of OP1 on payment of premium of Rs. 1122/- when the subject mobile was snatched / stolen on 03.09.2014 by two unknown persons near JP dairy, near Harsh Vihar Delhi. An FIR no. 403/2014 u/s 356/379 IPC was also got registered by complainant with PS Harsh Vihar, Delhi and charge sheet was filed u/s 173 CRPC before the Court of MM Karkardooma with untraced report. The theft intimation was given by the complainant to all the OPs alongwith submission of requisite document however repeated follow up/ visits and OPs failed to reimburse the theft claim compelling the complainant to file the present complaint before this Forum praying for issuance of direction against the OPs to pay the mobile insurance claim alongwith compensation.
2. Complainant filed copy of purchase invoice mobile phone purchase from OP1, copy of handset insurance plan customer copy vide plan number 1006288 issued by OP2 under stamp and seal of OP1, copy of terms and conditions of insurance policy issued by OP3, copy of FIR no. 403/2014 dated 03.09.2014 pertaining to theft of mobile alongwith final untraced report u/s 173 Cr.PC and copy of application dated 04.10.2017 by complainant to this Forum for restoration of earlier complaint no. 260 of 2017 which was dismissed in default.
3. Notice was issued to the OPs. Despite service effected on OP1 & OP2 on 01.01.2018, none appeared on their behalf and therefore proceeded against ex-parte vide order dated 26.04.2017. OP3 entered appearance and filed its written statement in which it took the preliminary objection of complaint being time barred as having been filed in August 2017 whereas the cause of action arose from the date of theft i.e. 03.09.2014 and the same has also been admitted by the complainant vide his letter dated 04.10.2017 whereby he has acknowledged dismissal of his complaint in default by this Forum on 21.09.2017. OP3 objected that the complainant did not file any order of Hon'ble SCDRC for restoration of his complaint and prayed for dismissal of the complaint on grounds of limitation. OP3 further contented the complainant had failed to produce any documents on the basis of which he has arraigned OP3 as party to the complaint and the complaint suffer of mis-joinder of party by impleadment of OP3 and therefore liable to be dismissed on this ground as well. Lastly, OP3 resisted the present complaint on ground that it had not issued any insurance of the alleged mobile phone nor had been a beneficiary of the premium paid, if any, for the same and prayed for dismissal of the complaint urging that there was no deficiency of service on its part.
4. Rejoinder to the written statement of OP3 was filed in rebuttal by the complainant urging the limitation to file the complaint commenced only after the police file the final untraced report and not from lodging of FIR. And urged that his earlier complaint was dismissed in default due to non appearance at the very initial stage and was since not decided on merits, the second complaint was dully maintainable under due process of law. Complainant further submitted that the stolen mobile was duly insured with OP3 but it failed to release the claim despite submission of all requisite documents pertaining to theft of the mobile and OP3 being duty bound to release the theft claim amount which it failed to release.
5. Evidence by way of affidavit was filed by the complainant exhibiting the documents filed / relied upon as Ex CW 1/1 to CW 1/6.
6. Evidence by way of affidavit was filed by OP3 sworn by its Divisional Manager urging the complaint as non maintainable being time bard and no insurance coverage having been granted by OP3 with respect to the mobile in question and even otherwise the present complaint being second complaint, the earlier one being dismissed in default and not restore by Hon'ble SCDRC, the same was not maintainable as per law.
7. Written arguments were filed by the both the parties in reiteration / reassertion of their respective grievance / defence.
8. We have heard the rival contentions of both parties and have given our anxious consideration to the documentary evidence placed on record by both sides.
9. It is settled law that the question in which law point is involved can be decided at any stage of the proceedings of the case as was observed by Hon'ble National Commission in Koshy Varghese Vs HDFC Bank Ltd III (2017) CPJ 52 (NC). Therefore, before going into the merits of the case, we shall adjudicate the admissibility / non-admissibility of the present complaint. The Hon'ble Supreme Court in Hewlett Packard India Ltd. Vs Shri Ramachandar Gehlot in CA no. 7107/ 2003 decided on 16.02.2004 also held that issue of maintainability has to be decided before having the matter on merits.
10. Admittedly, the subject mobile was stolen on 03.09.2014 when FIR regarding the same was also got lodged. However, the first complaint before this Forum in this regard bearing no. 260 of 17 was filed in August 2017 but was dismissed in default vide order dated 21.09.2017. Section 24 A of CPA deals with the limitation period for complaints to be filed within two years from the date on which cause of action has arisen and contains a negative legislative mandate against admission of a complaint which has been filed after two 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 two years from the date on which the cause of action has arisen. The term ‘cause of action’ pithily stated is bundle of facts for which a suit is brought and cause of action which gives occasion for and forms the foundation of the suit. The law on the said issue has been clearly settled by Hon’ble Supreme Court in so far as the nature and scope of Section 24 A is concerned in the landmark judgments of Kandimalla Raghavaiah & Co. Vs National Insurance Co. Ltd (2009) 7 SCC 768, State Bank of India Vs B S Agricultural Industries (2009) 5 SCC 121 and V. N. Shrikhande (Dr) Vs Anita Sena Fernandes (2011) 1 SCC 53. The Hon’ble Apex Court in the said judgments took the view that Section 24 A is preemptory in nature and requires consumer Forums to see before it adjudicates the complaint that it has been filed within two years from the date of accrual of cause of action. The Hon'ble Supreme Court in B.S. Agricultural Industries (Supra) case held the view that it is the duty of the Consumer Forum to take notice of section 24 A and give effect to it. The Hon'ble National Commission in M/s State India Express (Registered) Vs M/s Ranutrol Ltd and New India Assurance Co. Ltd in First Appeal Nos. 780/2006 and 116/2007 decided on 18.11.2013 held that wrong assumption of the date on which cause of action arose is no excuse to condone delay. The Hon'ble Supreme Court in Anshul Aggarwal Vs New Okhla Industrial Development Authority IV (2011) CPJ 63 (SC), Cicily Kallarackal Vs Vehicle Factory IV (2012) CPJ I (SC) , R.B. Ramalingam Vs R.B. Bhavaneshwary I (2009) SLT 701 and Ram Lal Vs Rewa Coalfields Ltd AIR 1962SC 361 held that while deciding an application for condonation of delay, the court has to keep in mind the special period of limitation prescribed under Consumer Protection Act 1986 and whether the petitioner has acted with reasonable diligence and has explained the delay properly with emphasis on necessity to show sufficient cause since the proof of sufficient cause is a condition precedent for exercise of discretionary jurisdiction for condoning delay. The Hon'ble Supreme Court in Bikram Dass Vs Financial Commissioner and Ors AIR 1977 SC 1221 held that Limitation Act is a hard task master and judicial interpretation has encased it within a narrow compass. Therefore a litigant who is not vigilant about his right must explain every days delay. Sufficient cause has been explained by Hon'ble Supreme Court in Basavraj and Anr Vs The Spl. Land Acquisition Officer 2013 AIR SCW 6510 as that delay was due to bonafide on the part of party and that party has not acted in a negligent manner or remain inactive; therefore meaning adequate and enough reasons which prevented the applicant to approach the court within limitation. The above ratios of Hon'ble Apex court were followed by Hon'ble National Commission in State of Haryana Vs Santra, Anita I (2019) CPJ 211 (NC), Eclectic Developers PVt Vs. Smita Datta Makhija II (2019) CPJ 545 (NC), Punjab State Power Corp. Ltd Vs. Lal Sarn Dass Sarve Hitkari School I (2019) CPJ 500 (NC) and Uttar Pradesh Madhyamik Shiksa Parishad Vs Gurmeet Kaur II (2019) CPJ 19 (NC). In Rishi Prabhat Vs. DDA AIR 1995 DEL 9, Hon'ble Delhi SCDRC held that after expiry of limitation period each day’s delay has to be explained.
11. Admittedly, the theft of mobile phone occurred on 03.09.2014 and therefore as per law, the cause of action started running when the complainant gave the theft intimation to the OPs for processing of theft claim insurance amount on submission of documents and related process. However, no information / documentation has been place on record by complainant regarding date of submission of documents / intimation of theft given to OPs for process of claim and therefore as per law and statutory mandate given u/s 24A of Consumer Protection Act, the limitation commenced on 03.09.2014 ending on 02.09.2016. However, the earlier complaint no. 260/17 was filed in August 2017 which was time barred and so was the present complaint was filed in October 2017, notwithstanding that it was second complaint and not restored. Therefore on this ground itself the complaint is non maintainable and liable to be dismissed.
12. Even on merits, the complainant has utterly failed to prove and establish the role of OP3 in the complaint barring filing a stray page of terms and conditions issued by OP3. There is no policy certificate or a cover note which bears the name of OP3 or any business tie up shown between OP2 & OP3. Complainant has also failed to place on record any proof of submission of documents with OP3 as claimed / averred by him in rejoinder to written statement of OP3 nor any acknowledgement of receipt thereof. In our view therefore, even on merits, the complainant has failed to prove his own averments. The Hon'ble National Commission in Pushpa Bhutani Vs HUDA, Hissar (2006) 3 CPR 239 held that a complaint cannot be allowed if complainant is unable to prove his averments and also held in Shahenn Khan Vs Oriental Insurance Co. Ltd. (2006) 3 CPR 15 (NC) that best evidence should not be withheld from Forum while dealing with a claim of deficiency in service regarding settlement of insurance claim.
13. After having exhaustively dealt with the legal discourse and the settled preposition of law in the catena of judgments passed by Hon'ble Supreme Court and Hon'ble National Commission on the aspect of limitation, we are of the considered opinion and unambiguously conclude that the present complaint is barred by limitation under Section 24 A since the period for filing the same expired in September 2016 (theft dated 03.09.2014) but the complaint was preferred in August 2017 and October 2017 after 11 months to a year of expiry of limitation. The Hon'ble Supreme Court in N. Balakrishnan Vs M. Krishnamurthy VII (1998) SLT 334 laid down that law of limitation is enshrined in the maxim interest republic up sit finis Mum (it is for the general welfare that a period be put to litigation) and that it fixes a life span for such legal remedy for redressal of legal injury so that precious time which is wasted would never revisit. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time to see that party do not resort to dilatory tactics but seek their remedy promptly. It is settled preposition of law that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute prescribed which the court has no power to ignore. The legal maxim “dura lex sed lex” which means the law is hard but it is the law stands attracted in such a situation.
14. Even on merits, the complaint is not maintainable as complainant has been unable to establish role of OP3 therein and unable to prove his own averments for arraigning OP3 or proof or submission of documents pertaining to theft of his mobile phone with it or OP3 being recipient premium consideration amount of Rs. 1122/- paid for insurance by complainant as payment of consideration is the basic ingredient of being consumer as was also held by the Hon'ble National Commission in Shashi Gupta Vs B. Murli in RP No. 1648/2012 decided 21.02.2013.
15. We therefore dismiss the present complaint on grounds of limitation and non maintainability / non admissibility as not only being time barred but also devoid of merit.
16.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
17.  File be consigned to record room.
18.  Announced on  24.10.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member