BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Complaint Case No. 156 of 2020.
Date of institution: 16.07.2020.
Date of Decision: 07.06.2024.
Mukesh Kumar, aged about 25 years son of Shri Bharat Singh, resident of 463, Chuli Kalan, Tehsil and District Hisar.
……….Complainant.
Versus
1. The New India Assurance Company Limited, Near Bus Sand, Sirsa, through its Branch Manager.
2. The New India Assurance Company Limited, New India Assurance Building, 87, M.C. Road Fort, Mumbai- 400001 through its Regional Manager.
3. Shri Harish Kumar (NIAAG00007466), Agent of The New India Assurance Co. Limited, resident of Kalanwali Micro Office (353706) above shop No. 105-A, Anaj Mandi, Kalanwali – 125201, District Sirsa.
..……..Opposite Parties.
COMPLAINT UNDER SECTION 12 OF CONSUMER PROTECTION ACT, 1986.
Before: SH. PADAM SINGH THAKUR……………PRESIDENT
MRS. SUKHDEEP KAUR……………….…MEMBER.
SH. OM PARKASH TUTEJA……………….MEMBER
Present: Sh. Manoj Narula, Advocate for the complainant.
Sh. A.S. Kalra, Advocate for the opposite parties no.1 and 2.
Complaint qua opposite party no.3 already dismissed on 05.05.2023.
ORDER:-
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 ( after amendment u/s 35 of C.P. Act, 2019) against the opposite parties (hereinafter referred as OPs).
2. In brief, the case of complainant is that he is registered owner of one Milk Tanker No. HR-39C/5209 Model 2012 and complainant purchased insurance policy from ops no.1 and 2 through op no.3 for the above said vehicle under commercial vehicle package policy by paying premium of Rs.20,149/- and as such said vehicle was insured with ops’ company vide insurance policy no. 35370631160 100001487 for the period 08.11.2016 to 23.10.2017 for the insured declared value of Rs.4,50,000/-. That for a long period, the above said vehicle of complainant was in service of Milk Plant, Sirsa and on 25.08.2017 same was standing in the premises of Milk Plant Sirsa alongwith other vehicles and in the list of office of Fire Station, Municipal Council, Sirsa the above said vehicle has been shown. It is further averred that on 25.08.2017 there was an agitation of Dera Sacha Sauda, Sirsa and some fire incidents also taken place in the area of Milk Plant Sirsa in which said vehicle of complainant was entirely smashed and burnt badly in the fire incident alongwith some other vehicle and same is still lying on the spot even at this time and same is not in position to ply on road to do work of any kind and this fact can be well ascertained by spot inspection. That after fire incident, the ops’ company got surveyed the spot in question and ops have paid compensation for the damage of other vehicles as per insurance policies but have not paid anything to him whereas complainant has already submitted his claim to the ops alongwith all requisite documents and he is ready to submit all other documents, if required by ops no.1 and 2. The complainant is legally entitled to get amount of Rs.4,50,000/- from ops no.1 and 2 alongwith interest for which complainant approached and requested the ops on many occasions but all in vain and ops have postponed the matter with one pretext or the other. It is further averred that ultimately complainant got served a legal notice upon the ops on 17.12.2019 but to no effect rather ops have finally refused to admit the claim of complainant without any rhyme or reason and have caused deficiency in service and harassment to the complainant. Hence, this complaint.
3. On notice, ops no.1 and 2 appeared and filed written statement raising certain preliminary objections that term and conditions of contract of insurance entered in between complainant and answering ops has binding effect upon both the parties as per law and insured/ complainant was under contractual mandate, obligation to give immediate intimation about any mishap/ accident/ incident to the company, but insured failed to do so. The mishap allegedly occurred with vehicle no. HR-39C/5209 on 25.08.2017 and first time company was served with legal notice on 17.12.2019, even there after and prior to that no steps were taken by complainant for submitting the application for claim before the company, hence complainant is estopped by his own act and conduct to file present complaint. That complaint is barred by law of limitation as according to own version of complainant alleged incident with vehicle took place on 25.08.2017 and present complaint has been filed on 13.07.2020, hence complaint is liable to be dismissed. It is further submitted that present complaint is pre-mature and without any cause of action.
4. On merits, it is submitted that complainant is seized to be consumer after expiry of insurance and lost his all statutory period of raising grievances either before the Authority according to contractual term and conditions or before the court of law within twelve calendar months as per terms and conditions of the policy. The responsibility for loss is governed by terms and conditions of insurance policy and insured failed to comply with the terms and conditions of insurance policy and failed to intimate company alongwith documents immediately after the alleged mishap, as liability is contractual. The person who violates the contract of insurance is not entitled for the claim or any relief, as same is to be paid as per contractual term and conditions and complainant is not entitled for the claim. It is further submitted that no claim has ever been lodged and legal notice was duly replied and it was specifically mentioned in the reply that complainant failed to comply with the term and conditions of insurance policy and to submit the requisite documents. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
5. The op no.3 could not be served for want of copy of complaint and RC etc. despite several opportunities and for the said reason as well as keeping in view the fact that op no.3 was only an agent and there were no specific allegations of complainant against op no.3, so as op no.3 was not a necessary party, therefore, the complaint against op no.3 was dismissed vide order dated 05.05.2023.
6. The complainant in evidence has tendered his affidavit Ex. CW1/A and documents Annexures C1 to C12.
7. On the other hand, ops no.1 and 2 have tendered affidavit of Sh. Jugal Kishore, Incharge as Ex. RW1/A and documents Ex.R1 to Ex.R3.
8. We have heard learned counsel for the parties and have gone through the case file.
9. First of all, it is pertinent to mention here that complainant alongwith his complaint has filed an application for condonation of delay in filing the present complaint. The ops have also taken the preliminary objections that complaint is hopelessly time barred and even on merits, they have pleaded that complainant has violated the terms and conditions of the insurance policy about immediate intimation of incident to the ops and claim has not been filed within time i.e. within 12 calender months from the date of incident as per terms and conditions of the policy and therefore, he has no cause of action to file the present complaint and complaint is pre mature and is liable to be dismissed.
10. From the above said facts, the following points arises for consideration:-
(i) Whether the present complaint is time barred?
(ii) Whether complaint is without any cause of action?
11. As regard to point no.(i) is concerned, the complainant has filed an application for condonation of delay. The complainant averred in his application that complainant was not in the knowledge about the legal position of delay for filing the complaint and due to this reason he could not file complaint within prescribed period of limitation. The complainant has not pleaded any justifiable ground for filing his complaint after expiry of limitation period of two years as per provisions of the Consumer Protection Act as incident has taken place on 25.08.2017 and complaint has been filed on 16.07.2020 i.e. after about three years and there is no justifiable ground to condone the delay. Moreover, as per terms and conditions of the policy, immediate intimation was to be given by complainant after the incident but there is nothing on file to prove the fact that ops were informed about the above said incident of fire and burning of vehicle of complainant immediately after the incident and according to ops the incident took place on 25.08.2017 whereas for first time company was served with legal notice on 17.12.2019 and as such complainant has violated the terms and conditions of the policy. The ops have also asserted that even after 17.12.2019 and prior to that no steps were taken by complainant for submitting the application for claim before the company, hence complainant is estopped by his own act and conduct to file the present complaint and complaint is without any cause of action. So, it is proved on record that no intimation has been given by complainant to the insurance company regarding incident in question and secondly complainant has not lodged his claim within stipulated period as per terms and conditions of policy and as such complainant has violated the terms and conditions of the policy. As such complaint is liable to be dismissed being time barred and even on merits also and the application filed by complainant for condonation of delay also deserves dismissal.
12. In view of our above discussion, the application for condonation of delay is hereby dismissed and resultantly the complaint is dismissed being time barred and on merits also. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced: Member Member President,
Dated: 07.06.2024. District Consumer Disputes
Redressal Commission, Sirsa.
