Complainant by filing this complainant has submitted that he runs a business under the name and style of M/s Gagan Vanaspati Distributors represented by its proprietor Sri Anil Kumar Gupta carrying on his business from 11/C, Kalakar Street, Kolkata-700007.

          Complainant as a proprietor of the said concern used to purchase edible oil from wholesalers from various states of India who as a consigner send those edible oils through transporters and thereafter the complainant sells the said goods in local market and during such transportation there exist risk of damage of goods in transit for which the complainant used to insure such goods.

          Accordingly the complainant concern was insured under Marine Cargo Inland Transit policy for a sum of Rs.10 lakhs vide Policy No.M/996/05-06 dated 04.10.2005 with the op Oriential Insurance Company Ltd.

          During validity of the said Marine Cargo Inland Transit Policy, the complainant placed an order of consignment with the M/s Bansal Oil Mill Ltd. Jaipur for delivery of 945 tins for having 15 Kgs. each tin of Power Brand Ag Mark mustard oil valued at Rs.6,53,294/- and said consignment was dispatched from Jaipur to Kolkata under consignment Note No.7604 dated 07.09.2006 by road from Jaipur to Kolkata through the carrier U.P., Assam, Bengal Transport Company, Transport Nagar, Jaipur.

          At the time of unloading of the said consignment of goods it was noticed that out of 945 tins of Power Brand Agmark Mustard Oil 278 tins were received in leakage/damage condition and employees of the complainant concern immediately reported the same by writing on the reverse of the consignment note No.7604 dated 07.09.2006.  Immediately after that on 18.09.2006 the complainant intimated the Branch Manager of the insurance company intimating arrival of the consignment dispatched under consignment No.7604 in leaked condition and requested for deputing a surveyor for assessment of loss.

          Accordingly one surveyor namely Subrata Bose, was appointed to conduct the survey and surveyor conducted the survey at about 9 p.m. when the consignment was already unloaded due to harassment of the police authorities for keeping the unloaded truck in the no parking zone.  It is a fact that the surveyor had to take inventory prior to unloading and also subsequent to the unloading but due to the untoward situation of police harassment the consignment had to be unloaded and the surveyor took inventory of the unloaded consignment in his godown.

          Subsequently, the surveyor submitted his report dated 04.01.2007 to the insurance company ascertaining the value of damaged goods sustained by the complainant amounting to Rs.1,23,593/- without taking into account the freight charges of Rs.9549.30/- in respect of 278 tins out of 945 tins which had sustained damages.  Thus the total amount of damage suffered by the complainant was to the tune of Rs.1,33,142.30/-.  No doubt the insurance company gave a copy of the report of surveyor to the complainant on 09.03.2007.  That the purported report submitted by the surveyor had adversely affected the right of the complainant resulting in irreparable loss and for which complainant lodged a claim on 21.03.2007 with reply of surveyor’s report to the insurance company for the loss suffered by the complainant.  But now vide letter dated 04.05.2007 op informed the complainant about its inability to entertain the claim on the grounds that during investigation it revealed that no accident of the vehicle took place during transit for which the possibility of inadequate packing must have been reason for damage and thereby the insurance company reputed the claim.

          Being aggrieved and dissatisfied the order of the said insurance company ultimately complainant as per advice of his lawyer filed a writ petition being W.P. No.22628(W) of 2007 against the present ops under Art 226 of the Constitution of India.  But as the matter was being delayed and prolonged the complainant under the instruction of his lawyer withdrawn the case from the Hon’ble High Court at Kolkata and ultimately filed this case for redressal.

          On the other hand insurance company by filing written statement submitted that the entire allegation is false and fabricated and practically even after instruction of appointed surveyor of op Mr. Subrata Bose, complainant failed to co-operate with investigations and fixed the inspection time at spot at about 9 p.m. on 08.09.2006 and when goods reached at the godown of the complainant.  It was noticed by the surveyor that all the tins were unloaded and stacked inside the godown and in respect of instruction unloaded in the presence of investigators and fact remains that investigator submitted the report stating that 278 tins were damaged and no instant of accident took place in respect of the vehicle during transit and cause of damage is falsely stated by the complainant and moreover complainant did not give any opportunity to inspect the damages tins before the unloading the said tins which is violation of condition of Marine Cargo Inland Transit policy as such it was repudiated by the op for justified ground and there was no latches on the part of the op and further it was submitted that the case is barred by limitation on the ground that the repudiation was on 04.05.2007 whereas the present complaint was filed on 15.06.2012 and fact remains that the writ of the Hon’ble High Court was dismissed vide order dated 15.02.2012 and for which the present complaint should be dismissed.

                                                Decision with reasons

          Practically in this case Ld. Lawyer for the op at the time of defence submitted that in respect of same same relief complainant filed writ being WP No.22628(W) of 2007 and that was dismissed on 06.02.2012.  On the ground complainant decided not to proceed with the same and for which Hon’ble High Court dismissed the said writ and then it is proved that complainant did not withdraw the case but complainant did not proceed with the case.  So, under any circumstances as a consumer, complaint cannot be filed by the complainant.  But that was not taken into account by the Forum in due time of policy and Ld. Forum casually condones the delay of filing the present complaint without considering the order of High Court.

          Ld. Lawyer for the complainant submitted when the complainant did not proceed with the complaint and for which the writ was dismissed, the complainant is right to file this complaint and rightly limitation was duly decided by the Forum at the time of hearing the claimant complaint for admission.  But on proper consideration of the order of this Forum being No.2 dated 09.07.2012 is found heard exparte without giving any notice to the op and in fact in adopting a unilateral procedure, it was decided at the time of admission hearing.  But it is mandatory provision of law as enumerated in Section 24 A of the C.P. Act1986 if there is any application for condolation of delay in that case admission matter shall be deferred and notices shall be served upon the op and after giving chance to the op to file condolation and to contest such prayer for condolation of delay and after decision of the same, the question of admission of the complaint shall arise.  But in this case it is peculiar that this Forum unilaterally took decision the same without sending any notices upon the op and without giving any chance to op to contest the said condolation application and allowed the same and no doubt such an order cannot be anyway implemented against the op and for which we have gathered that the limitation matter as challenged by the op must be decided afresh.

          Another factor is that the complainant in his complaint has submitted that he prayed for withdrawal of the writ petition and Hon’ble High Court allowed it and thereafter he filed this complaint.  But the above statement of the complainant is completely false on the ground the order of the Hon’ble High Court passed in WP No.22628 (W) of 2007 dated o6.02.2012 reveals that complainant filed an application praying for no proceeding with the said writ petition and in view of the above submission writ petition was dismissed.  So, relying upon the order of the Hon’ble High Court we are convinced to hold that the previous writ petition was not withdrawn and Hon’ble High Court did not give any chance to file any afresh case or relief before any Forum or before any authority on the same cause of action.

          The writ was dismissed as complainant did not proceed with the case.  Then it is clear that the complainant never prayed for withdrawal of the case and that writ was dismissed on the basis of the submission of the complainant that he shall not proceed with the case in that case after that order dated 15.02.2012 complainant has no legal jurisdiction to file this complaint and is debarred from filing such a complaint after that of Hon’ble High Court.  Another factor is that as per provision of Section 14 of limitation Act, the complainant ought to have filed such application for condolation of delay but not u/s 5 of the Limitation Act.  But such a relief u/s 14 of Limitation can be  availed by any complaint if there is such order of the Hon’ble High Court to that effect.  But there is no such order passed by the Hon’ble High Court dated 15.02.2012 that complainant shall have his liberty to file such case before any Forum and to that effect complainant shall have to get relief for condolation of delay as per provision of Section 14 of the Limitation Act.

          Considering that provision of Section 14 of Limitation Act and the order of the Hon’ble High Court and the present writ we are confirmed that complainant is debarred to file this complaint afresh as complainant had no desire to get any relief in respect of his present relief for which he filed for its missing the writ petition.  So, after that order of Hon’ble High Court the present complaint is not maintainable in the eye of law and at the same time it is proved that the repudiation was made on 04.05.2007  and present complaint was filed on 15.02.2012 and for which the entire complaint is barred by limitation and the order of this Forum unilaterally passed by Order No.2 dated 09.07.2012 pending upon the op as said order was against the spirit of law as provided in Section 24 A of CP Act 1986 and in the light of the above assertion we are convinced to hold that the present complaint is barred by limitation and in view of the order passed by the Hon’ble High Court on 15.02.2012 under the writ application.

          Now we shall have to consider another aspect.  Though it is not required but want to say that the present op repudiated the claim for over act of the complainant because as per Marine Cargo Inland Transit Policy it is the duty of the insured to unload the damaged articles in presence of the surveyor and fact remains surveyor has specifically stated that trucks had not been overloaded and arrangement for unloading in presence of insurance company would be made but ultimately they asked the surveyor to come after three or 4 hours and when surveyor came it is found that same had already been unloaded.  So, surveyor inspected it on 18.09.2006 at 8:45 p.m. and found that out of 945 tins of mustard oil 278 tins were partly damaged but he did not find any reason for such damage because the said truck did not face any accident and at the same time such a huge quantity of tins cannot be damaged due to jerks and jolts during transit only and in fact surveyor submitted the report on the ground that cause of loss cannot be confirmed.  But surveyor did not assess any loss.  But in the complaint complainant on surmise prepared an amount of loss etc what was admitted.  We are convinced that the present complainant is not maintainable in view of the fact that complainant without any permission to sue afresh any consumer complaint before the Hon’ble High Court only did not proceed with the writ application and thereafter the writ application was dismissed then complainant has no legal to right to file a fresh complaint under CP Act 1986.

          At the same time the present complaint is barred u/s 24 of the CP Act 1986 and further Hon’ble High Court did not give any chance for filing any further case for getting relief by giving the complainant a chance to get protection of limitation as per provision of section 14 of Limitation Act and in view of the above findings, we find that practically the present complaint is barred by limitation and at the same time the complainant did not follow the terms and conditions of the Marine Cargo Inland Transit Policy and for which it was repudiated and that was rightly repudiated when complainant did not follow the terms and conditions of the policy and did not give the surveyor any chance to inspect or investigate the so called loss or damage in his presence and unloading of the articles in his presence.  Though surveyor appeared at this spot when it was not unloaded.  But by giving some hopes to the surveyor complainant took some time in the mean time misdeed was done by the complainant and tins were unloaded from the truck and stacked in the godown and such sort of act on the part of the complainant is no doubt unfair trade practice and no doubt complainant violated the terms and conditions of the policy for which repudiation was rightly made. 

          In this regard we have relied upon the ruling reported in 13(4) CPR 165 (NC) and as per spirit of that verdict of the National Commission we are sure that parties of an insurance policy shall be guided by the condition and no exception and relaxation can be made on the ground on equity.  So, we confirm that repudiation was justified for violation of the terms and condition of the present

policy by the complainant,(Relied the Ruling Reported in 2013 (4) CPR 224 (NC) and 165 (NC).

          Further regarding limitation we have already decided that complaint is barred by limitation and at the same time it is the settled principle of law that legislation prescribes limitation with objects of complying the rules of the policy but insurer’s dilatory practice cannot be condoned without satisfactory reasons.

          In the light of the above discussion, the complaint fails.

          Hence, it is

                                                      ORDERED

          That the complaint be and the same is dismissed on contest without cost against the contesting ops.