STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,PANCHKULA

First Appeal No.402 of 2015

Date of Institution: 17.04.2015

                                                          Date of Decision: 22.05.2015

Jitender Kumar S/o Sh.Bhagwan Singh R/o VPO Rajokari, New Delhi.

     …..Appellant

                                                Versus

The New India Assurance co. Ltd. Opposite Kamla Nehru Place, Gurudwara Road, Gurgaon, Haryana.

         …..Respondent

CORAM:   Mr. R.K.Bishnoi, Presiding Judicial Member.
                   Mrs. Urvashi Agnihotri, Member.

Present:-    Mr.K.L.Saini, Advocate for the appellant.

                                      O R D E R

R.K.BISHNOI, PRESIDING JUDICIAL MEMBER:

          Delay of 08 days in filing the appeal is condoned for the reasons stated in the application for condonation of delay.

2.      This appeal has been preferred against the order dated 25.02.2015 passed by learned District Consumer Disputes Redressal Forum, Gurgaon (in short “District Forum”) vide which complaint was dismissed.

3.      It was alleged that complainant was owner of truck bearing No.HR-55K-2007, which was financed from Tata Motors.  The vehicle was insured with opposite party (O.P.) from 16.01.2006 to 15.01.2007.  The insured declared value (IDV) of the vehicle was Rs.15,20,000/-.  On 12.02.2006, the vehicle was snatched. FIR No.38 dated 13.02.2006 was lodged.  Intimation was also sent to the insurance company.  He deposited untrace report dated 30.09.2006.  He also filed claim, but, opposite party (O.P.) failed to settle the same.  Legal notice was also sent to the O.P., but, to no result.

4.      Opposite party contested the complaint on the ground that complaint was not maintainable and was barred by limitation u/s 24 (A) of Consumer Protection Act, 1986 (In short “Act”). Several letters dated 05.05.2006, 20.05.2006 and 14.08.2006 of the surveyor were issued to the complainant, but, he did not submit any reply.  Ultimately his claim was repudiated vide letter dated 06.03.2007.  Reply of his legal notice was sent by it’s counsel Sh.N.K.Saini, Advocate on 02.01.2012 to the counsel of the complainant, but, complainant did not place that on file intentionally and deliberately to conceal real and material facts from the court.

5.      After hearing both the parties, learned District Forum dismissed the complaint.

6.      Aggrieved therefrom, complainant has filed this appeal.

7.      Arguments heard.  File perused.

8.      As per facts mentioned above, it is clear that vehicle was stolen on 12.02.2006.  Claim of the insured was repudiated by the insurance company vide letter dated 06.03.2007 whereas the present complaint was filed before the District Consumer Disputes Redressal Forum, Gurgaon (In short “District Forum”) on 21.02.2012/15.05.2012.  It should have been filed within two years from the date of incident, but, the complainant filed the complaint in 2012.  It shows that complaint is highly belated.  It has no where come on the file that complainant filed an application to condone delay in filing complaint. When no application for condonation of delay was filed and delay was not condoned, complaint was not maintainable and Learned District forum has rightly opined to this effect.  When complaint is time barred the same is liable to be dismissed only on this ground as opined by Hon’ble National Commission in revision petition No.2394 of 2011 titled as  Uday Shankar Varma Vs. Continental Airlines Inc. decided on 04^th July, 2013.  Relevant portion is as under:-

“Admittedly, in the present case the cause of action has accrued to the complainant on 18.2.2008, when the complainant lodged his complaint with the opposite parties for the missing of his luggage at New Delhi Airport, whereas he has filed the present complaint before the District Forum, Gurgaon on 10.5.2010. It is also an admitted case of the complainant that he has filed the complaint before the District Forum, New Delhi which was withdrawn by him on 27.4.2010 and at the time of withdrawal, no liberty was granted to the complainant to file a fresh complaint before the District Forum, Gurgaon on the same cause of action. It was a simpliciter withdrawal of the complaint, which was allowed by the District Forum, New Delhi to file a fresh complaint. It is nowhere pleaded or sought by the complainant that he wants to file a fresh complaint before the District Forum, Gurgaon. Thus under the circumstances, when the complainant was put up before the District Forum, Gurgaon, it was already time barred because cause of action has accrued to the complainant on 18.2.2008 and the fresh complaint before the District Forum, Gurgaon was filed on 10.5.2010. It was further admitted case of the parties that no application was filed by the complainant under Section 14 (2) of the Limitation Act seeking the condonation of delay for agitating the matter before the Forum, which had no jurisdiction to try the complainant. In the absence of any application, the District Forum, Gurgaon was left with no other option, but to dismiss the complaint as time barred. As per the provisions of Section 24A (1) of the Consumer Protection Act, 1986, no complaint can be entertained by the District Forum after the expiry of the period of two years from the date of accruing of the cause of action, unless there is sufficient reason to condone the delay in filing the complaint is filed or District Forum condoned the delay.

Honble Supreme Court has opined in State Bank of India Vs. M/s B.S. Agricultural Industries (I) reported in 2009(2) CPJ 1, has held that if the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the Forum would be committing an illegality and therefore, the aggrieved party would be entitled to have such order set aside. So, there is no necessity to  go into the merits of the case.

9.      Admittedly, the present complaint was filed by the complainant before the District Forum after a gap of more than five years, which on the face of it appears to be hopelessly time barred. As a sequel to above discussion, no case of admission of this appeal is made out, hence it is dismissed in limini.