PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
The Complainant is a Private Limited Company registered under the Indian Companies Act, carrying on business of Shipping Agent. Opposite Party No.1 is a Limited Company incorporated under the Indian Companies Act. Opposite Party No.2 is the Branch Office of Opposite Party No.1. Opposite Party No.3 is the Head Office of Opposite Party National Insurance Co. situated at Calcutta.
2) It is submitted that the Complainant had purchased the Insurance Policy in the name of “Office Package Policy” from the Opposite Parties to cover the Fire & Allied risk under “Office Package Policy”, on making payment of the required premium. Opposite Party has accordingly issued a policy bearing No.250700/48/2001/2100322, dtd.16/04/2001 covering the risk as stated in the policy for the period from 20/04/2001 to 19/04/2002. The Complainant has produced copy of aforesaid policy alongwith compliant at Annexure ‘C-2’.
3) It is averred in the complaint that due to fire that has occurred on Wednesday, 07/11/2001, from a fortuitous origin, all the insured articles viz. Furniture, Fixtures, Telephones, Electronic Equipments, Office Appliances, which were in the inured premises have been damaged and destroyed. After the incidence, the Complainant gave information to the police authorities and also to the Opposite Parties. The Opposite Parties had appointed surveyor. The Complainants had submitted all the documents called for by the Opposite Parties and their surveyor without any delay. M/s.C.P. Mehta & Co., a Surveyor, appointed by the Opposite Parties to assessed the loss caused to the Complainant due to incident of fire took place on 07/11/01 at Rs.13,09,661/- vide Survey Report dtd.18/10/02. The Complainant has produced copy of survey report alongwith complaint at annexure ‘C-3’.
4) Opposite Party vide their letter dtd.30/04/04 addressed to the Complainant accepted their liability to the extent of Rs.6,29,061/- towards the full and final settlement of the Complainant’s claim. In the said letter Opposite Parties have stated that “We have been advised by our Controlling Office that the insurance has been granted only in the name of M/s. Fairmacs Shipping & Transport Services Pvt. Ltd. and the loss occurred to M/s. Draft Cargoways (India) Pvt. Ltd. is not admissible under the Policy.” The Complainant has produced copy of the said letter at Annexure ‘C-4’. According to the Complainant, surveyor appointed by the Opposite Party has assessed loss at Rs.13,09,661/-, however, Opposite Parties agreed to settle the claim for lesser amount of Rs.6,29,061/- only, and therefore, denied legitimate claim of the Complainant for balance amount of Rs.6,80,600/-. The Opposite Parties had sent their voucher for the said amount as a full and final settlement of the claim.
5) It is submitted that the Complainant Company vide their letter dtd.27/12/03 and 29/01/04 has already brought to the notice of Opposite Parties that Preamble of the policy and Sec.1(B) of the office package insurance policy covers “All other contents belonging to or the responsibility of the Insured.” Further the Complainant by their letter dtd.7th November, 2004 informed the Opposite Parties that the Complainants are responsible and liable to pay the loss, as per the demand of M/s. Draft Cargoways (I) Pvt. Ltd. According to the Complainant repudiation of part of claim is based on the fact that M/s. Draft Cargoways (I) Pvt. Ltd., is not the Insured, which is much against the Preamble the terms and conditions of the policy issued by the Opposite Parties to the Complainant. Sec.1(B) cover not only the property belonging to Complainant’s Company, but also cover the goods for which the Complainant’s Company is responsible when goods are in the premises of the Complainant.
6) It is submitted by the Complainant that as per Chapter (IX) of Indian Contract Act, 1872 of bailment, as per the details given under Sec.148 to 170, the Complainant is bound by the law to make good the loss of the destroyed goods of M/r. Draft Cargoways (I) Pvt. Ltd., which were in Complainant’s possession and responsibility on the date of loss and a demand has already been raised by that Complainant to that effect. Act of Opposite Party to reject part of the genuine claim of the Complainant which is breach of contract of insurance.
7) It is contended that after persistent follow up for the long period of about 5 years from the date of submitting the claim, the Opposite Parties made part payment of Rs.6,29,061/- vide their cheque dtd.31/03/06. It is alleged that the Opposite Parties have indulged into unfair trade practice and illegally repudiated part of the claim, despite of the surveyor report dtd.18/12/2002 and it amounts to deficiency in service and unfair trade practice on the part of Opposite Parties. Therefore, the Complainant has filed this complaint.
8) The Complainant has prayed to direct Opposite Parties to make balance payment of Rs.6,80,600/- alongwith interest @ 21% p.a. from the date of submitting the claim till the date of realization of entire amount. The Complainant has also prayed for interest @ 21% p.a. on the aforesaid amount of Rs.6,29,061/- for the period from the date of submitting the claim till the date of payment i.e.31/03/2006. The Complainant has also prayed to direct Opposite Party to pay Rs.1 Lac as compensation for mental agony and cost and Rs.50,000/- towards incidental expenses incurred by the Complainant.
9) In support of the complaint Mr. Anil P. Bakle has filed affidavit in support of the complaint. The Complainants have filed an application for condonation of delay and produced copies of the documents as per list of documents.
10) Opposite Party No.1 to 3 have filed their common written statement and thereby resisted claim of the Complainant contending interalia that complaint is hopelessly barred by law of limitation and therefore, deserves to be dismissed. The Complainant has suppressed material facts from this Forum and complaint is hit by principle of Res-judicata. The Complainant had already approached the Hon’ble High Court in Arbitration Application No.119/2005 in which their plea for appointment of sold Arbitrator was rejected, and they were directed by the Hon’ble High Court to accept the amount of Rs.6,29,061/-. The said amount has been already paid to the Complainant. The Complainant has filed this complaint by misguiding this Forum.
11) It is submitted by the Opposite Parties that they have settled the claim of the Complainant for sum of Rs.6,29,061/- as early as on 31/03/06 for Fairmacs Shipping & Transport Services Pvt. Ltd. However, the claim of other Company Draft Cargoways (I) Pvt. Ltd. was repudiated as early as on 28/09/04 and therefore, complaint is hopelessly time barred.
12) It is submitted that the Complainant’s claim for balance amount of Rs.6,80,600/- is not correct. Cause of action has arisen on 07/11/01. The Complainant did not accept and sign the discharge voucher dtd.30/04/04 and hence, that time said amount could not be released. The Complainant approached the Hon’ble High Court in Arbitration Application No.119/2005. The Opposite Parties have already paid Complainant’s claim as full and final settlement. The Complainant is not entitled to claim loss for another Company. There is no deficiency in service on the part of Opposite Parties. The Opposite Parties have followed proper procedure. They had appointed surveyor to assess the loss and issued survey report. The Opposite Parties have not committed any unfair trade practice. They have settled Complainant’s claim of Rs.6,29,061/- as per order of the Hon’ble High Court. Opposite Parties have denied each and every allegations made by the Complainant and submitted that they are not liable to pay Rs.6,80,600/- or any amount to the Complainant. They are also not liable to pay any compensation and cost of this proceeding and therefore, complaint be dismissed with cost.
13) The Complainant has filed affidavit of evidence. Opposite Party has produced copy of order dtd.17/02/06 passed by the Hon’ble Bombay High Court in O.O.C.J. Arbitration Application No.119/2005 and affidavit of evidence of Sr. Divisional Manager, Mr.V. Natarajan. The Complainant has filed written argument. Opposite Party has also filed written argument.
14) Ld.Advocate for the Opposite Parties Smt. Bhakti Barve, passed pursis submitting that written argument and affidavit of evidence filed by the Opposite Parties be treated as their oral argument. So we heard oral argument of Ld.Advocate Ms. Rashmi Manne for the Complainant and complaint was closed for orders.
15) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the complaint is barred by law of limitation ?
Findings : Yes.
Point No.2 : Whether the Complainant is entitled for reliefs from Opposite Parties as prayed for ?
Findings : No
Reasons :-
Point No.1 :- In the complaint it is averred that on 7th November, 2001 due to fire articles viz. Furniture, Fixtures, Telephones, Electronic Equipments, Office Appliances, in the inured premises were damaged and destroyed. Thereafter, the Complainant had preferred claim under “Office Package Policy” issued by the Opposite Party. After receipt of claim the Opposite Party had appointed Surveyor - M/s.C.P. Mehta & Co. Said Surveyor, submitted his report on 18/10/02 assessing the loss at Rs.13,09,661/-. However, the Opposite Party by their letter 30/04/04 partly allowed the Complainant’s claim to the extent of Rs.6,29,061/- as full and final settlement of the loss and in the said letter it was informed to the Complainant that “We have been advised by our Controlling Office that the insurance has been granted only in the name of M/s. Fairmacs Shipping & Transport Services Pvt. Ltd. and the loss occurred to M/s. Draft Cargoways (India) Pvt. Ltd. is not admissible under the Policy.” Being aggrieved by the aforesaid decision the Complainant has filed this complaint requesting this Forum to direct Opposite Party to pay balance amount of Rs.6,80,600/- with interest and for other reliefs. The Complainant has filed this complaint on 11/07/2007. Alongwith complaint the Complainant has filed an application for condonation of delay. The Opposite Party has filed written statement and thereby raised contention that complaint is hopelessly barred by law of limitation.
It is submitted by the Ld.Advocate for the Complainant that surveyor appointed by the Opposite Party has assessed loss at Rs.13,09,661/-. However, Opposite Party vide their letter dtd.30/04/2004 partly allowed Complainant’s claim to the extent of Rs.6,29,061/- and rejected claim of Rs.6,80,600/-. The Opposite Parties paid an amount of Rs.6,29,061/- vide cheque dtd.31/03/06. Therefore, cause of action for balance claim of Rs.6,80,600/- has arisen on 31/03/06. Therefore, present complaint which is filed on 11/07/2007 is within prescribed period of limitation under Sec.24(A) of the Consumer Protection Act. However, in order to avoid technical objection of delay by way of abundant precaution the Complainant had made application for condonation of delay. Ld.Advocate has requested to condone the delay if any, caused and relied upon decision of the Hon’ble Supreme Court in the matter of Collector Land Acquisition Anantnag & Anr. V/s. Mst. Katiji & Ors. in which it is held that “Ordinarily a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a Cause would be decided on merits after hearing the parties.”
Further the Ld.Advocate for the Complainant has relied upon decision of the Hon’ble State Commission, Madhya Pradesh in Terence Correya V/s. Maruti Udyog Ltd. & Anr. in which it is observed that “the benevolent legislation intended to protect the interest of the consumers. So while construing the said provision of limitation, we have to take a liberal view and a genuine claim of a honest consumer should not be allowed to be defeated on the technical ground of limitation.”
The Opposite Party has submitted that the Complainant has preferred claim under the insurance package policy on the ground of damage caused to the godown due to fire which took place on 07/11/2001. The Hon’ble Supreme Court in Kandimalla Raghavaiah & Co, V/s. National Insurance Co. Ltd. & Anr. has held that “The terms “cause of action” is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as “bundle of facts”, which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, “cause of action”, means the cause of action for which the suit is brought. “Cause of action” is cause of action which gives occasion for an forms the foundation of the suit. [See : Sidramappa V/s. Rajashetty and Ors., (1970) 1 SCC 186]. In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out.”
According to the Opposite Party, as cause of action for this complaint took place on 07/11/2001 therefore, the Complainant ought to have filed this complaint within 2 years from the date of cause of action. However, inordinate delay is caused in filing of this complaint. It is further submitted that the Complainant has deliberately suppressed material facts from this Forum. The Complainant had approached the Hon’ble High Court by filing Arbitration Application No.119/2005 for appointment of a Sole Arbitrator, but Complainant’s plea was rejected by the Hon’ble High Court. This fact is nowhere mentioned in the complaint. Opposite Party has produced copy of order dtd.17/02/06 passed by the Hon’ble High Court in Arbitration Application No.119/2005. It appears that the aforesaid application was field by the present complainant against Opposite Party. In the aforesaid order the Hon’ble High Court had narrated facts of this case and stated that “Whether the loss caused to M/s. Draft Cargoways (I) Pvt. Ltd., is required to be made good by the Applicant is the first question and whether the said claim is covered by the Office Package Policy No.250700/48/2001/2100322 is the second question and both of them cannot be adjudicated by an Arbitral Tribunal to be appointed on the basis of the said policy. It is matter of civil dispute between the parties and which could be decided by a Civil Court.” It is submitted by the Opposite Party that instead of filing Civil Suit, the Complainant has filed present complaint suppressing the facts that aforesaid application for appointment of a Sole Arbitrator was rejected by the Hon’ble High Court. It is submitted that inordinate delay is caused in filing of this complaint from the cause of action took place for this complaint on 07/11/2001. However, the Complainant has filed present complaint on 11/07/2007.
The Hon’ble Supreme Court in State Bank of India V/s. B.S. Agriculture Industries (I), reported in 2009 (6) Mh.L.J.369 have held that Sec.24(A) – Admission of complaint by Consumer Forum – expression, “shall not admit a complaint” occurring in Sec.24(A) – Consumer Forum has to examine on its own whether the complaint has been filed within the limitation period prescribed thereunder – Forum would commit illegality if the time barred complaint is decided by it on merit.” In the instance case fire broke out in the Complainant’s godown on 07/11/2001, so the Complainant was expected to file this complaint before this Forum on or before 06/11/2003. In this case the Opposite Party partly repudiated claim of the Complainant vide their letter dtd.30/04/2004. Thereafter, the Complainant accepted amount of the claim sanctioned by the Opposite Party as full and final satisfaction on or about 31/03/2006. The Complainant has also not filed this complaint within 2 years from the date of repudiation of claim i.e. from 30/04/2004. In the application for condonation of delay the Complainant has merely narrated facts of this case and contended that complaint is filed within limitation and alternatively it is contended that as a matter of abundant precaution the Complainant has filed application for condonation of delay. The Complainant has not assigned any reason to explain inordinate delay caused in filing of this complaint. As the Complainant has failed to assign sufficient ground to condone the inordinate delay caused in filing of this complaint. The Complainant’s application for condonation of delay is rejected. Therefore, we hold that the complaint is barred by law of limitation. Therefore, we answered point no.1 in the affirmative.
Point No.2 :- As discussed above the complaint is hopelessly barred by law of limitation. Therefore, the Complainant is not entitled for any relief claimed. Hence, we answered point no.2 in the negative.
For the reasons discussed above, complaint is deserves to be dismissed. Hence, we pass following order -
O R D E R
i.Complaint No.210/2007 is dismissed with not order as to cost.
ii.Certified copies of this order be furnished to the parties.
