PER S.K. NAIK, MEMBER

          This revision petition has been filed by New India Assurance Co.Ltd., the opposite party before the District Forum against the order dated 20.4.2005 of the State Consumer Disputes Redressal Commission, Delhi (for short ‘State Commission’) dismissing their appeal in which they had challenge the District Forum’s order dated 3.2.2005 vide which a direction was issued to pay Rs.2,00,000/-, the insured amount of the vehicle with 9% interest, Rs.2000/- as compensation as also a cost of Rs.500/-.

Facts giving rise to the dispute are that --- The insured Tata Truck of the respondent/complainant, while parked in the vicinity of his driver’s residence was stolen during the night intervening 26^th and 27^th Jan., 1991.  FIR was lodged.  Petitioner – Insurance Co. was informed about it who appointed M/s J.C.Gupta & Co., surveyor to assess the loss. The surveyor asked the complainant to furnish requisite information and documents.  When the complainant did not submit the required documents to process the case despite repeated requests and reminders, the surveyor vide his letter dated 14.12.1991 informed the complainant that despite final reminder dated 12.5.1991 asking to submit the documents within 30 days, he has failed to give any response, they are advising the underwriter  to close the file as a case of ‘No claim’.  The letter was delivered to the complainant by hand and copy was endorsed to the Insurance Co.  The complainant kept quiet for few years and during Sept. 1994 vide his letter dated 8.9.1994 enclosed copies of FIR and insurance policy and enquired about the claim.  It appears that the petitioner – insurance company in order to help process the case re-opened the matter and appointed one Shri J.C.Bhagat to investigate the claim who again asked the complainant a number of queries and requested him to submit a         number of documents.  His requests, however, were not responded and vide letter dated 28.6.1995, the investigator informed the complainant that unless the information is received, it would be presumed that he was not interested in the claim. The matter, thereafter went into hibernation and suddenly cropped up after a period of more than five years when the complainant once again vide his letter dated 20.9.2000 enquired about his claim.  This according to the complainant was followed by a reminder dated 28.11.2000.  The claim, however, remained unsettled.  A legal notice, thereafter was issued on 20.4.2002 and finally he approached the insurance ombudsman, who, however, asked him to sign an agreement under the Arbitration Conciliation Act, 1996 which was not agreeable to him and, therefore, he opted to file a consumer complaint before the District Forum which was done on 28.7.2003.

          Before the District Forum, the petitioner – opposite party objected to the claim on two grounds ; firstly that the case was not that of theft but of breach of trust.  In support thereof, they stated that the police had made out a case under Section 406 of the IPC and not under Section 379 IPC.  The other ground was that the complaint was time barred and could not be entertained.

          The District Forum on perusal of the evidence and after hearing the parties held that since the claim of the complainant had not been repudiated, it is deemed to be pending and, therefore, question of limitation would not arise.  With regard to the claim on breach of trust, relying on a decision of this Commission in Oriental Insurance Co. Ltd. & Anr. Vs. Rohit Kumar Gupta & Ors. I (1994) CPJ 196,  it held that the consequences under Section 406 as also Section 379 of IPC are the same.  The District Forum, therefore, dismissed the plea of the petitioner – insurance company.  The State Commission has upheld the order of the District Forum, thus giving rise to this revision petition.

          Assailing the order passed by the fora below, learned counsel for the petitioner has contended that while the vehicle was stolen in 1991, the complaint before the District forum has been filed for the first time on 28.7.2003 after 12 years.  The District Forum has arrived at the totally wrong finding that there was no communication with regard to the repudiation of the claim.  It has failed to take into consideration the conduct of the complainant, who, while the first surveyor’s letter dated 14.12.1991 was categorically advised to submit the required documents to process his case within 30 days failing which his request was to be treated as ‘no claim’.  After keeping quiet for a period of three years, the complainant cleverly vide his letter dated 8.9.1994 enquires about the claim.  The petitioner – insurance company as a measure of indulgence, re-opened the case and appointed Shri J.C.Bhagat as the investigator.  When the attempts of the investigator to obtain the requisite documents and clarification from the complainant failed once again, he vide his letter dated 28.6.1995 informed the complainant that it was not possible to indefinitely wait for the requisite information and if not received, it will be presumed that the complainant was not interested in the claim.  However, there was no response even to this communication.  Learned counsel, therefore, contended that for the second time, the case of the complainant stood closed and thereafter the complainant had been informed about its repudiation but unfortunately the concerned records due to the lapse of time have been weeded out. Subsequently, after a lapse of another five years, the complainant again enquired about his claim vide letter dated 20.9.2000 in an attempt to revive the case for the third time.  As per his own admission, he approached the ombudsman but did not pursue the matter there and after a lapse of another three years, filed the complaint before the District Forum on 28.7.2003.  Submitting that there has been gross unexplained delay of more than eight years after the letter of repudiation, the counsel contends that the District Forum as well as the State Commission grossly erred in holding that there was no letter of repudiation and, therefore, question of limitation would not arise.

          On the point of the incident not being a case of theft, the counsel has relied upon the order of this Commission in the case of M/s Himalaya Mini Flour Mills & Anr. Vs. New India Assurance Co.Ltd. & Ors. dated 12.9.2003 passed in OP/88/1995 in which despite protracted correspondence addressed to the complainant soliciting information had not been supplied to the surveyor in the absence of which the claim could not be processed and when the complainant had after a lapse of few years enquired about the matter, it was held that the subsequent inquiries and even investigations carried out by the insurance company will not extend the limitation period prescribed for filing the complaint. The complaint was, therefore, held to be barred by limitation and dismissed.  The counsel contends that the case in hand is very similar to the one cited above as the matter stood finally decided as a case of ‘No claim’ after the second surveyor’s communication dated 28.6.1995 and, therefore, the period of limitation has to be reckoned from the year 1995.  Thus, the complaint was hopelessly barred by limitation and deserves to be dismissed.

          Learned counsel for the respondent/complainant on the other hand has refuted the claim of the learned counsel for the petitioner that any letter at any stage was issued to the complainant informing him that his case has been closed as a case of ‘no claim’.  They have failed to produce any evidence in this regard and the fora below  have very rightly held that the claim of the complainant has not been repudiated  by the insurance company so far.  Merely because surveyors have been appointed and they have issued some letters asking for some information will not amount to repudiation of his claim.  In this respect, he has cited and relied upon the orders passed by this Commission in the case of (1) Kanoria Chemicals & Ind. Ltd. Vs. National Insurance Co.Ltd. II (1995) CPJ 147 (NC), (2) Motilal Meghwal Vs. United India Insurance Co.Ltd. II (1995) CPJ 38 (NC) and (3) Sirpur Paper Mills Ltd. Vs. National Insurance Co. Ltd. II (1997) CPJ  36 (NC).

The gist of these orders relied upon by the learned counsel hold that the period of limitation will commence only after the communication from the insurance company is received by the claimant irrespective of  the parties.  He has, therefore, contended that the fora below have rightly rejected the objection on limitation. 

          On perusal of the records and after hearing the learned counsel for the parties, we are of the view that the petitioner – insurance company has not been able to conclusively prove that a definitive reply of repudiation/no claim was sent to the respondent/complainant.  From the evidence on record, it is established that the complainant had not co-operated with the two surveyors appointed by the petitioner and they had categorically recommended the closer of the case as that of ‘no Claim’.   But it appears that their recommendations were not converted into executive order by the petitioner and inform the complainant about it. Though the surveyors had informed the complainant that if required information has not furnished, it shall be treated as a case of no claim, yet no communication to that effect was sent by the Insurance Company specifically to the complainant. The contention of the learned counsel for the petitioner that record concerning the correspondence have been destroyed in the process of normal weeding out was not accepted by District Forum since Sr. Divisional Manager of opposite party who had filed affidavit failed to produce weeding out register, which he had undertaken to produce in the District Forum.  We, therefore, have to hold that no such communication repudiating the claim was ever issued to the complainant by the insurance company.  The question of the complaint being barred by time would therefore not arise.

          With regard to whether the incident was that of breach of trust, needs no elaborate discussions since in the criminal case registered in the matter, it has come out that the cleaner of the complainant Shri Mahender was abducted along with the truck and had been subsequently murdered by the criminal gang.  These facts are established from police papers at pages 82 and 84 which are found in Vol.II and pages 58, 59, 61 and 71 of Vol.I of the records filed before the Commission. The incident, therefore, has to be treated as a case of theft for the purpose of insurance.

          With regard, however, to the compensation ordered by the District Forum, the conduct of the complainant has to be taken into consideration.  From the facts, it has been established that the complainant was asked to submit the requisite documents in Dec., 1991.  He kept quiet for three years and re-opened the matter in 1994.  In the second phase, he again kept quiet from 1995 till 2000.  Thereafter, gave a legal notice and approached to the insurance ombudsman.  He delayed the matter for another three years and finally filed the complaint on 28.7.2003.  For this conduct of the complainant and technical omission on part of the petitioner to communicate the decision of ‘no claim’, the complainant cannot be awarded 9% interest p.a. on the insured amount of Rs.2 lakhs which in our view is not justified when the compensation of Rs.2000/- has also been awarded in addition the cost of Rs.500/-.  Payment of Rs.2 lakhs i.e. the full amount of insurance without any interest with a lump sum compensation of Rs.5000/-, in our view will be proper, just and fair in the facts of this case and we order accordingly.  The revision petition is disposed of in these terms.

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     (R.K. BATTA)

      (PRESIDING MEMBER)

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                                                        (S.K. NAIK)

                                                                            MEMBER

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