No. 4/11.01.2011.

HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

Appellant through Mr. S. K. Das, the Ld. Advocate and Respondent through Mr. G. P. Dey, the Ld. Advocate are present.  Respondent files BNA.

This appeal is by the Complainant against the judgement and order dated 27.05.2010 passed by the CDF Unit – II thereby dismissing the complaint ex parte on the ground of limitation.

The complaint was filed by alleging that the O.P. – Insurer failed to settle the claim as made by the Complainant after the consignment sent by one M/s. Dulichand Industries to the Complainant was received by the Complainant in damaged conditions.

The O.P. – Respondent did not contest the said claim case by filing any Written Version to the complaint case.  The complaint case has been dismissed by the Forum below on the ground of limitation only by holding that the same was filed after expiry of two years from the date on which cause of action for filing the same had arisen.  Upon careful reading of the impugned order it does nowhere appear that the O.P. – Respondent anywhere in the proceeding below took a plea that the claim of the Complainant was repudiated anytime after the same was raised with the Insurer.  In fact, the Insurer – O.P. has not filed any Written Version to the claim case by making any case whatsoever of repudiation of the claim.  Nor any evidence has been led in the proceeding below to establish that the said claim was repudiated by the Insurer at any point of time.  In the absence of such repudiation it cannot be said that the cause of action for filing the complaint arose on any particular date.  We are, therefore, of the view that the Forum below on pure misconception has treated the complaint case as barred by limitation.  We, therefore, set aside the impugned order and send the case back on remand for fresh trial on merits of the claim.  The appeal is thus disposed of.