JUSTICE SUDIP AHLUWALIA, MEMBER

2. The factual background, in brief, is that a fire incident occurred at the industrial unit of the Complainant Company, which is engaged in manufacturing spanners and hand tools. The incident occurred at the factory located at Baddi on 17.12.2010, at around 16:55 hrs, when the furnace caught fire. This fire caused significant damage to the factory's electrical and mechanical items, along with the industrial shed. The fire was controlled by the Baddi Fire Station. Following the incident, the Complainant informed the Petitioner/Insurance Company about the fire, as it had a valid Insurance Policy covering the period from 26.08.2010 to 25.08.2011. The Insurance Company appointed a Surveyor to assess the loss, who obtained documentation and photographs of the site. The Complainant cooperated by providing all the necessary documents to the Surveyor. However, during this period, the Senior Managing Director of the Complainant Company was diagnosed with a brain tumor, which required surgery in April 2011. Consequently, the entire family, including other Directors, were preoccupied with his medical treatment and care. Due to these circumstances, the Complainant sent a letter to the Insurance Company on 30.03.2011, requesting that the Claim file remain open while the authorized persons were dealing with the medical emergency. The letter emphasized the family's involvement in the Senior Managing Director's treatment and sought time to complete the formalities for the claim. Despite this, there was no response from the Insurance Company to the letter. The Complainant made numerous requests to the Insurance Company for an extension to complete the necessary formalities regarding the claim. Despite such repeated communications, the Insurance Company did not respond, nor provided any resolution. On account of such inaction, the Complainant issued a Legal Notice to the Petitioner/Insurance Company on 20.07.2015, yet the claim was still not reopened or addressed. Aggrieved with the deficiency in service on the part of the Insurance Company, the Complainant filed its Complaint before the Ld. District Forum, Solan.  

3. The District Forum vide its Order dated 13.10.2017 dismissed the Complaint on the ground of limitation. The Respondent then filed its Appeal before the Ld. State Commission, which allowed the same, and set-aside the Order of the District Forum, with a direction to the District Forum to decide the complaint on merits. The relevant extracts from the impugned Order are set out as below -

“11………….No repudiation letter placed on record by the Insurance Company to prove that consumer complaint was not filed within two years after the communication of repudiation letter to insured. See 2000 (3) CPJ 400 UPSCDRC titled Tek Chand Versus New India Assurance Co. Ltd. See 1996 (1) CPJ 139 NC titled R. Jaya Kumar Versus National Insurance Company Ltd. & Anr. In the absence of communication of repudiation letter to insured on record it is held that cause of action to complainant is continuity in nature. It is well settled law that limitation will not operate when cause of action is continuity in nature. See 1993 (3) CPJ 305 NC titled Bank of India Versus HCL Ltd. & Anr. See 1998 (2) CPC 577 NC Time properties and Promotors Ltd. Versus Rakesh Jain. See 1999 (2) CPJ 13 titled State Bank of India Versus Anand Mohan Saha. See 2002 (2) CPC 426 NC M/s. Syndicate Bank Bangalore Development Authority…….

 

Point No.2: Final Order

 

14. In view of findings upon point No.1 above appeal filed by complainant is allowed and order of learned District Forum dated 13.10.2017 passed in M.A.01/2017 is set aside. Delay in filing consumer complaint is condoned in the ends of justice in the absence of communication of repudiation letter to insured on record. Learned District Forum is ordered to register the original consumer complaint. Legal notice sent by complainant to dated 20.07.2015 Annexure opposite party C-9 shall form part and parcel of order. 

 

15. Learned District Forum is further order to obtain version of opposite party in consumer complaint and after obtaining version of opposite party learned District Forum shall obtain evidence of complainant in affirmative by way of affidavits alongwith all annexures as per modes mentioned under Section 13(4) of Consumer Protection Act 1986. It is further ordered that thereafter learned District Forum shall obtain evidence of opposite party by way of affidavits alongwith all annexures as per modes mentioned under Section 13(4) of Consumer Protection Act 1986 and thereafter learned District Forum shall obtain rebuttal evidence of complainant by way of affidavits and thereafter learned District Forum shall dispose of consumer complaint on merits strictly as per law.”

 

4. This Commission vide Order dated 16.10.2023 had proceeded Exparte against the Respondent as it had failed to appear despite being served multiple notices. 

5. Ld. Counsel for Petitioner has argued that the Surveyor submitted his Final Survey Report on 08.03.2011, stating that in spite of his repeated requests, the Respondent/Insured failed to provide the documents and information required by him to prepare and submit the Survey Report and therefore the assessment of loss could not be worked out. The Surveyor recommended that in the circumstances, the Respondent was not interested in the claim and therefore no liability is attached to the Petitioner; That the Respondent’s complaint was filed after a delay of almost five years and therefore it was dismissed by the District Forum, as the Respondent failed to show any sufficient cause for such a huge delay; That the State Commission had erroneously set aside the Order of the District Forum on appeal by the Respondent, by remanding it back with directions to provide an opportunity to both the parties to adduce evidence; That the impugned Order passed by the State Commission is without jurisdiction, as it is against the judgments of the Hon’ble Apex Court in “SBI v. Agriculture Industries India, (2009) 5 SCC 121” and “Kandimalla Raghavaiah & Co. v. National Insurance Company, (2009) 7 SCC 768” regarding complaints being barred by limitation under Section 24A of the Consumer Protection Act, 1986.

6. This Commission has heard the Ld. Counsel for Petitioner and perused the material available on record.

7. After a careful consideration of the entire material on record, this Commission is of the considered opinion that the impugned Order of the Ld. State Commission is unsustainable.  This is so, because, while admittedly no formal repudiation was issued from the side of the Petitioner-Insurance Company to the Complainant, but the fact of the matter is that the mishap/fire giving rise to the Insurance claim had occurred as far back as on 17.12.2010.  Had there been no response whatsoever to the Insurance Claim by the Insurance Company, the Complainant would have been required to file its Complaint within two years after raising the claim, but it transpires that in the present case, admittedly from its side, the Complainant had requested the Insurance Company on 30.3.2011 to keep the claim file open, so as to enable it to complete the claim facilities. But no response to such request was forthcoming from such request on 30.3.2011.  The Complainant thereafter sat over the matter and ultimately issued a Legal Notice to the Insurance Company on 20.7.2015, which was four years and four months after its letter of request dated 30.3.2011, and five years and seven months from the original date of the mishap/fire. 

8. Thus by artificially issuing a Legal Notice long after limitation even from the admitted date of the letter addressed by the Complainant  to the Insurance Company (30.3.2011) had expired, the Complainant could not have been permitted to take advantage of its own laches at such a belated stage, and so, the Ld. District Forum had rightly dismissed the Complaint as being barred by limitation.

9. Consequently, the Revision Petition is allowed after setting aside the impugned Order of the State Commission, and restoring the Original Order of the District Forum, vide which the Complaint filed by the respondent was dismissed.   Parties to bear their own costs.

10. Pending application(s), if any, also stand disposed off as having been rendered infructuous.