Orissa

Rayagada

CC/24/2016

Kora Nayak - Complainant(s)

Versus

M/s TATA Aig Life Insurance Co. Ltd., - Opp.Party(s)

Self

27 Apr 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 24 / 2016.                                            Date. 27    .    4   . 2018

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                          Preident.

Sri  GadadharaSahu,                                             Member.

Smt. Padmalaya  Mishra,                                     Member.

 

Sri Kora Nayak,  S/O:Khalia Nayak,  At: R.K.Nagar,

Po/ DIST: Rayagada, State:  Odisha,  PIN No. 765 001.  

Near Income tax office, Cell No. 94370-63274 .…..Complainant.

Versus.

1.The Manager, M/S.  TATA AIG Life insurance Co. Ltd., Head office, 5^th. And 6^th. Floor, Peninsula Towers, Corporate park, GAnpatraoKadam Marg, Lower Parle, Mumbai- 400 013.

2. The Regional  Manager, M/S.  TATA AIG Life insurance Co. Ltd., Berhampur, Dist:Ganjam, Odisha.

3.The Regional Manager, M/S.  TATA AIG Life insurance Co. Ltd.,Bhubaneswar.

4.SriPrasanta Kumar Nayak,  M/S. Majhigouri Associates, Rayagada.

                                                                                                …Opposite parties.           

For the Complainant:- Self.

For the O.Ps 1 to 3:- Sri S.K.Nanda and associates, Bhubaneswar.

For the O.P No.4:- Set exparte.

.                                               JUDGMENT

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non refund of deposited 3 Nos. premium  a sum of Rs.97,386/- for which  the complainant  sought for redressal of the grievances raised by the complainant.

On being noticed the O.Ps 1 to 3  appeared through their learned counsel and filed written version refuting allegation made against them.  The O.Ps1 to 3   taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.Ps1 to 3  . Hence the O.Ps1 to 3    prays the forum to dismiss the case against  them  to meet the ends of justice.

On being noticed  the O.P No.4  neither entering in to appear before the forum nor filed their  written version inspite of more than  16 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P NBo.4.  Observing lapses of around 2 years  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  from the complainant set the case  exparte against the O.P No.4. The action of the O.P No. 4  is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P. No. 4 was  set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

 Heard arguments from the learned counsel for the    O.Ps.    Perused the record, documents, written version  filed by the parties.

During the  course of hearing the complainant was absent on call.

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                        FINDINGS.

On perusal of the record it is revealed that there is no dispute that the complainant was policy holder  under the O.P  TATALIG Life Mahalife Gold bearing  No. C670141739 Dtd. 28.3.2010 for a sum assured of Rs. 3,52,000/-  which was issued in favour of the complainant with annual premium amount a sum of Rs.32,629/-.  The aforesaid policy was issued  to the complainant  in his address on Dt. 28.3.2010  basing on duly signed application form by the complainant  Dt. 27.3.2010   being a premium paying term of 15 years and policy term of 44 years.  Copies of the application dtd. 27.3.2010, General amendment form, sales illustration form & policy contract annexed collectively is in the file   marked  as Annexure-I.

       In written version para-3  the O.Ps   contended that  the instant complaint is not maintainable as per Section-11 of the C.P. Act, 1986 as O.Ps neither carry on business nor has a branch office at Rayagada within the jurisdiction of this hon’ble forum.  

       As per Sec.11(2) of the Consumer Protection Act “ A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-

1.             The opposite party or each of the opposite parties, where there are more than     one, at the time of the institution of the complaint, actually and            voluntarily       resides or carries on business or has a branch office or     personally works for gain.

In the present case theO.Ps received the premiums from the complainant visitinghis residencethrough the agent SriPrasant Kumar Nayakas O.P. No. 4in turn issued money receiptin favour of the complainantaffixing stamp as TATA Life Insurance Co.Rayagada01, which declaresthattheO.Pscarries on businesspersonally works for gainby engaginglocal agent in thedifferent area of the country.Hence this forum has territorial jurisdictionto entertain the case before the forum.

The O.Ps in their preliminary objections para-7(iii) clearly mentioned  that the application contained a clause of free look period vesting a right on the policy holder to cancel and obtain a refund of premium paid by giving a notice duly signed by the proposer  and directly received by the company within 15 days from the date of receipt of the policy. In the present case the complainant has not availed the above  free look period in due time. 

In para-2 the complainant in his  complaint petition   argued  that the O.Ps. was not given any  policy bonds to the complainant and the agent who has received the policy bonds  has intentionally kept the same with him and deprived his valuable right  to go through the policy conditions and as per his suggestion the  3 Nos. of premium were paid. To reply  the above argument the  O.Ps in their preliminary objections para-7(iv) clearly mentioned  that the application and the policy papers were dispatched to the mailing address of the complainant through speed post bearing receipt No. FW274114836 IN  Dt. 8.4.2010.  From the above  discussion it is clear that the complainant was actually  received  policy bond from the O.Ps through speed post.

          The O.Ps in their preliminary objections para-7(vi) contended   that the  O.Ps did not received any information from the complainant towards non-receipt of policy document. The compalainant also did not make any notice for cancellation of the policy  within free look period and return the premium rather the complainant had deposited the second and third premiums  in the year 2011 and 2012.

          The O.Ps in their preliminary objections para-7(vii) contended   that the  premium payment notices dtd. 26.2.2013 was duly sent to the complainant to deposit the premium by 28.3.2013 but the complainant  did not  deposit the  premium within the grace period for which the lapse notice dtd. 28.4.2013 was sent to the complainant. Copies of such notices are in the file marked as Annexure-2 & 3. The complainant inspite of such notices did not pay the premium for which the policy lapsed being auto surrendered. 

          The O.Ps in their preliminary objections para-7(viii) contended   that the  complainant has not make any application for revival of the policy rather filed the present case with false and afterthought pleas.

          The O.Ps in their preliminary objections para-7(ix) contended   that the present case is filed much after the period of limitation of two years on the date of alleged cause of action i.e.  Dt.28.4.2013 on which date the policy lapsed, and the complaint having been filed on Dt.  19.1.2016 was filed more than two years  after accrual of the cause of action and therefore, is liable  to be dismissed  on this ground  alone. Section-24 A of the C.P.Act,1986 which prescribes the period of limitation for admitting  a complaint, reads as under.

       We perused the complaint petition and written version  filed by both the parties  and on perusal of documents it reveals  that the cause of action arose in the present case   on  Dt.28.4.2013 but the  complainant has filed the above case before  the forum  19.1.2016 after two years   which is a time barred complaint and this forum can not adjudicate this complaint. 

            “Section 24 A  Limitation period  of the Consumer Protection Act : 

 

                (l) The District Forum, shall not admit a complaint unless it is filed within two years                from the date on which the cause of action has arisen.

(2)  Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (l), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

            Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”                                               

            It is held and reported in  2005(iv) CPJ-1 (S.C) in  the  case of Haryana Urban Development Authority Vrs. B.K.Sood where in the Hon’ble Supreme Court, referring to the provisions of Section-24A of the C.:P.Act,1986 inter-alia observed as under in para-11

            “The Section debars any  Fourm set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen”.

            Again it is held and reported  in 2009(II) CPJ-29 SC  in the case of State Bank of India Vrs. B.S.Agricultural Industries where in the Hon’ble Supreme Court, considering the provision of Section 24-A of the C.P.Act, 1986 inter-alia observed and held as under in para -8

            “It would be seen from the aforesaid provision that is peremptory in nature  and requires  Consumer forum to see before  it admits the complaint that it has been filed  within two years from the date of accrual of cause of action. The Consumer forum, however, for the reason to be recorded in  writing may condone the delay in  filing  the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section-24A is sort of  a legislative command to be Consumer Forum   to examine  on its own whether the complaint  has been filed with in limitation period prescribed  thereunder. 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”.

            Further it is held  reported  in  2010(iv) CPJ-27  in  the case   of V.N.Shrikhande(Dr.)  Vrs.  Anita  Sena Fernandes,  where in the Hon’ble Supreme Court reiterated that Section 24 A (1) 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. It was further  observed  that the Consumer Forum 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 Apex Court  held   that if the complaint is per se barred  by time  and the complainant  does not seek condonation of delay under Sub-Section – 24  A (2), the consumer forums will have  no option but to  dismiss the same”.

            The provision of Section -24  A  of the Act being mandatory and rather  peremptory in nature,  this forum  has no  jurisdiction to entertain  a complaint after expiry of the prescribed    period of limitation, unless the complainant filed  an appropriate application  under  Sub-Section (2) of the said section and satisfies it that he/she  had sufficient cause for not filing the complaint   within the prescribed  period of two years  from the date on which   the cause of action had arisen. 

However, despite the O.Ps having   taken a  specific  preliminary objection  that the complaint  was barred by limitation, the complainants did not choose  to file an application  under section  (2) of Section  24 A seeking  condo nation of delay   in filing  the complaint.  Further the  complainant has not been able to give any  cogent and convincing reason for not filing the complaint within the period of limitation.

Hence, in view of the Section-24  A of the C.P.Act,1986 the  complaint petition filed by the complainant is dismissed. This forum   do not  think  proper to go  into merit of this case.

This forum  completely agreed with views taken in written version inter alia   the documents filed by the O.Ps in  the present case. Hence  this forum  feel the complainant is not entitled any  relief from this forum and   liable to be dismissed.

To meet the ends of justice the following order is passed.

ORDER

.In  resultant the complaint petition stands  dismissed. In the circumstances there is no order as to costs.  Accordingly the case  is disposed of.

Dictated and corrected by me               Pronounced on this       27     ^th.   Day of   April,  2018.

 

 

Member.                                             Member.                                                             President