No. 5/01.06.2011.

HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

Appellant through Mr. S. K. Das, the Ld. Advocate and Respondent through Mr. A. K. Bandyopadhyay, the Ld. Advocate are present.

This appeal is by the Complainant against the judgement and order dated 30.06.2010 passed by the Forum below thereby dismissing the complaint purely on the ground of limitation.   The Complainant is the proprietor of a business concern.  He used to purchase edible oil from wholesellers from various states of India and send such edible oil as consignor through transporter to the consignee.  The Complainant was insured under Marine Inland Transit Open Policy for the period from 30.05.2000 till 30.01.2001 by the O.P. – Insurance Co. Ltd.  One supplier of the Complainant M/s. Sarda Agro Oils Ltd. despatched a consignment of sunflower oil through the carrier.  The said consignment reached Kolkata on 18.08.2000.  While unloading leakage in some tins were detected and the same was endorsed by the driver of the carrier on the backside of the consignment note.  The Complainant intimated the fact of damage as well as leakage in the consignment to the Manager of the O.P. namely the Insurance Co.  The Complainant requested the said insurer to depute a surveyor for assessing the loss thus suffered by the Complainant.  The O.P. appointed a surveyor who made his survey on 21.08.2000 and submitted his report on 28.08.2000.  The Complainant thereafter submitted his claim to the O.P. – Insurer on 15.11.2000.  In spite of receipt of such claim from the Complainant after the surveyor had submitted his report on 28.08.2000, the Insurance Company did not settle the claim, nor intimate anything to the Complainant in respect thereof.  In such circumstances a further letter was sent to the O.P. – Insurer on 25.07.2003 by the Complainant demanding settlement of his claim and lastly and ultimately by a letter dated 02.03.2006 such demand was renewed without any success.  The above complaint case was accordingly filed on 11.07.2008 for direction upon the O.P. – Insurer to settle the claim.  The said complaint case has been dismissed by holding that the letter having been written by the Complainant for settling the claim on 25.07.2003 and lastly thereafter on 03.03.2006 this complaint case was barred by limitation on the date of its filing on 11.07.2008 as it was not filed within the period of two years from the date of the last letter when the cause of action for the complaint case arose.

It has been held by this Commission that when a claim has been lodged by insured with the insurer and there is no evidence to establish that the said claim has been repudiated by the insurer at any point of time thereafter and where there has not been any repudiation of that claim, it cannot be said that the cause of action for filing the complaint for a direction upon the insurer to settle the claim has arisen on any particular date.  In the case in hand it has not been stated by the O.P. – Insurer that after the claim was lodged by the Complainant the same was repudiated any time thereafter.  If a claim lodged by the insured is left alone without taking any decision on the same, we are of view that the cause of action for filing a complaint case for a mere direction upon the insurer to settle the claim is a continuing one and it cannot be said that the cause of action arose on any particular date. 

For the foregoing reasons we are of the view that the Forum below has acted illegally by dismissing the claim on the ground of limitation alone without going into the merits of the case.  The impugned judgement and order is therefore, set aside.  The complaint case is sent back on remand to the Forum below for disposal on merits.  The above complaint case being of the year 2008 and since almost three years have passed in the meantime the Forum below will take care that the said complaint case is disposed of as expeditiously as possible.