Delhi

StateCommission

CC/474/2016

M/S BIRD AIRPORT HOTEL PVT. LTD. - Complainant(s)

Versus

M/S TATA AIR GENERAL INSURANCE CO. LTD. - Opp.Party(s)

R.K. MEHTA

25 May 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments: 25.05.2016

Date of Decision: 06.06.2016

Complaint No. 474/16

In the matter of:

M/s. Bird Airport Hotel Pvt. Ltd.,

A Company incorporated under the Companies Act.

having its registered office at E-9, Connaught House,

Connaught Place, New Delhi through its Director,

Shri Ankur Bhatia.                                                                      ….........Complainant

 

Versus

M/s. TATA AIG General Insurance Co.  Ltd.,

Regd. Office at 15^th Floor, Tower-A,

Peninsula Business Park, Ganpatrao

Kadam Marg, Lower Parel, Mumbai-400013.

 

Second Address:

 

Branch Office : Lotus Tower,

1^st Floor, Community Centre,

New  Friends Colony,

New Delhi-110025.                                                ….............Opp. Party

                                                                

CORAM

O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

 

 O.P. Gupta, Member (Judicial)

 

1. The present complaint at the stage of admission can be disposed of on the question of limitation. The allegations made in the complaint are that for the purpose of  raising construction of hotel namely Dusit D2 Hotel at Plot No.10, Aerocity, IGI Airport, New Delhi took insurance cover for ‘the Contractor’s All Risks policy’ from OP and paid  Rs.2,60,455/- vide cheque dated 11.11.2011.   Policy Number was 2640004547.  The OP undertook to indemnify the complainant to the extent provided in the policy. The policy was initially for one year expiring on 31.08.2012, the same was renewed for one year w.e.f. 01.09.2012 to 01.08.2013. The premium for the period  of extension was payable in two equal  instalments. Half of the  payment was given vide cheque dated 03.09.2012 and second instalment was due on 30.11.2012. The OP failed and neglected to intimate the complainant regarding delay in payment of second instalment.

 

2. On 16.06.2013 at basement 3 of the building, due to inundation of water, huge damage was caused to the furniture and other items in the basement of hotel under construction. Complainant intimated the OP vide its email dated 02.07.2013.  After receipt of said email, the OP intimated  the complainant that second instalment of premium was not received. The complainant paid the second instalment vide cheque dated 02.07.2013 for which the receipt dated 03.07.2013  was issued.   The policy was valid  and it has not been cancelled. 

 

3. The complainant lodged claim of Rs.95,10,755/- alongwith supporting documents.  Various inspections were  carried out by surveyor on 03.07.2013, 05.07.2013, 20.07.2013, 29.08.2013, 07.08.2013 and 08.08.2013.  The OP declined to settle the matter vide email dated 21.08.2013 on the ground that all letters between 30.11.2012 to 01.07.2013 stand excluded from scope of cover. The OP never informed that it would deny the claim on said ground while accepting second instalment of premium. Hence, this complaint for directing the OP to indemnify loss to the tune of Rs.90 lacs,  to pay interest @24% per annum from 1^st July, 2013 till date of indemnify loss.

 

4. First question is that OP declined the claim vide email dated 21.08.2013 which gave rise to cause of action. The complaint should have been filed within two years from the said  date but has been filed on 4^th May, 2016. The counsel for  complainant submitted that complainant had been corresponding with OP. To my mind that does not extend the limitation. For this reference with advantage may be made to decision of National Commission in Himachal Futuristic Communication Ltd. Vs. K.C. Aggarwal IV (2013) CPJ 567.  Faced with this situation, the counsel for complainant moved an application for condonation of delay.  That too cannot be allowed because of decision of National Commission in  Petition No.2618/02 titled as C.H. Vittal Reddy Vs. the Manager, decided on 04.12.2002. Condonation of delay when it is the complaint has to be taken very seriously and that is why proviso to sub section (2) of Section 24A mandates recording of reasons. It must be understood that a suit filed in a Civil Court after the period of limitation prescribed under the Limitation Act has to be dismissed and there is no provision for condoning the delay on the ground of any sufficient cause being shown for not filing the suit within the period of limitation. This is the law which is in force since 1908 when the Limitation Act, 1908 came into force and same is the position of the Limitation Act, 1963. Sub section (2) of Section 24A is a departure to the well settled law that a suit beyond the period of limitation prescribed under the Limitation Act has to be dismissed. A Consumer Forum has, therefore, to guard itself against the misuse of sub-section (2) of Section 24A and should not be quick to condone the delay unless cogent and verifiable reasons exist to condone the delay.

 

5. There is another hitch in the case of complainant. The complainant informed the OP about the loss on 02.07.2013 whereas it had taken place on 16.06.2013. There is a catena of judgement for the view that delay of few days in informing insurance company is sufficient to reject the claim. Reference may be made to decision in Oriental Insurance Company Vs. Parvesh Chand Chadha, CA-67391/10 decided on 17.08.2010, Suman Vs. Oriental Insurance Company I (2013) CPJ 713 NC, New India Assurance Co. Ltd. Vs Trilochan Jane IV (2012) CPJ 441 NC, II (2013) CPJ 189 NC.

 

6. For the foregoing reasons, the complaint is dismissed in limini.

 

7. A copy of this order be sent to both the parties free of cost.

 

8. File be consigned to Record Room.

 

(O.P. Gupta)

Member (Judicial)