STATE CONSUMER DISPUTE REDRESSAL COMMISSION

BIHAR, PATNA

Appeal No. 498 of 2012

National Insurance Co. Ltd., (DO-III), 1- Sakespier Sarani, 6^th Floor, Kolkata through its Branch Manager, National Insurance Co. Ltd. Branch Office at Motihari.

                                                                                                                                                                             … Appellant

Versus

1.  Ram Eqbal Singh, S/o- Ram Swaroop Singh, R/o- Village- Tharbitia, PS- Pakri Dayal, District- East Champaran, Motihari

2.  Managing Director, Golden Trust Financial Services, 16-R.N. Mukherji Road, Kolkata-700001 through its Branch Manager, Motihari

                                                                                                                                                                          …. Respondents

Counsel for the Appellant: Adv. Prakash Kumar & Adv. Anil Kumar

Counsel for the Respondent: None

Before,

Hon’ble Mr. Justice Sanjay Kumar, President

Md. Shamim Akhtar, Member

Dated 07.06.2023

As per Sanjay Kumar, President.

O r d e r

1. Appellant National Insurance Company Ltd. (O.P. no. 1) has filed this appeal for setting aside judgment and order dated 11.09.2012, passed in Complaint case no. 138 of 2011, passed by the Learned District Consumer Forum East Champaran at Motihari whereby and wherunder the Ld. District Consumer Forum has allowed the complaint case filed by the complainant and directed the appellant/Insurance company (O.P. no. 1) to pay 50% of the sum insured amount i.e Rs. 2,00,000/- (Two lacs) in terms of insurance policy within one month failing which interest @9% p.a shall become payable.
2. Briefly stated facts of the case is that complainant had obtained group insurance policy namely Group Janta Personal Accident Insurance Policy through Managing Director of Golden trust Financial Services (O.P. no. 2) which is corporate agent of National Insurance Co. Ltd. (O.P. no. 1) Insurance cover was for the period from 15.08.2003 to 14.08.2004 and sum assured amount was Rs. 4,00,000/-.
3. It is further stated that on 28.11.2003 complainant met an accidental fall from his cycle as a result of which he suffered injury in his right eye and even after treatment his vision of right eye could not be restored and complainant within one month on 19.09.2003 informed about the accident to Opposite party no. 1 as well as Opposite party no. 2. Complainant submitted his claim form to the National Insurance Company (O. P. no.1) and golden trust financial services (O.P. no. 2) along with all relevant documents required for settlement of the claim. In terms of insurance policy complainant was entitled to receive Rs. 2,00,000/- as compensation on account of complete loss of vision of right eye.
4. Complainant approached the opposite parties several times for settlement of his claim but no steps were taken by the opposite parties to settle his claim as such complainant filed Consumer Complaint Case before the Ld. District Consumer Forum, Motihari upon which notices were issued and opposite party no. 1 and opposite party no. 2 appeared and filed their written statement.
5. Opposite party no. 2 in their written statement admitted that complainant was provided insurance cover under the Group Janta Accident Insurance Policy which was valid during the period when complainant met an accident in which complainant claims that vision of his right eye was completely lost. It has further been stated that after submission of claim form by the complainant same was forwarded to opposite party no. 1 along with all relevant documents on 18.08.2004 and thereafter, it was responsibility of the opposite party no. 1 to settle the claim of the complainant for which a reminder was also sent on 12.04.2007. Insurance premium as paid by the complainant was deposited with opposite party no. 1.
6. National Insurance Co. Ltd. (O.P.no. 1) in its written statement stated that complaint case was time barred and there is no deficiency in service of the insurance company. The claim form was received by opposite party no. 1 sent by opposite party no. 2 on 18.08.2004 but some relevant documents were missing as prescription of first aid permanent disability certificate in absence of which claim could not be settled.
7. The Ld. District Consumer Forum after hearing the parties and considering the materials available on record held that complainant is a consumer. The claim of complainant remained pending before the opposite party no. 1 and it was never settled and only when the consumer filed a complaint case in order to justify there inaction have come with a plea that disability certificate was not submitted by the complainant. Although, no communication has been placed by National Insurance Co. Ltd. in which they have demanded disability certificate from the complainant.
8. The District Consumer Forum has held that as the claim form remain pending before the opposite party no. 1 and no decision was taken on the claim of complainant as such the complaint case was not time barred.
9. The District Consumer Forum held that there was complete loss of vision of right eye and artificial eye ball was fixed and as such complainant was entitled for Rs. 2,00,000/- as compensation under the insurance scheme.
10. It was held by the District Consumer Forum that due to injury received from accidental fall from cycle as such no FIR was required however, complainant had lodged an informatory petition in the concerned police station. Complainant got himself treated for eye injury from Dr. Gagandeo Prasad in his EYE & ENT care clinic Motihari, however, the vision of his right eye could not be restored and a artificial eye ball was fixed. The disability certificate was demanded by the insurance company for first time in their written statement as such disability certificate issued by Civil Surgeon who is the competent authority has been obtained by the complainant and allowed the complaint case of the complainant.
11. Aggrieved by order dated 11.09.2012 passed in Complaint Case no. 138 of 2011, National Insurance Company (O.P. no. 1) has filed this appeal on the following grounds:

1. For that the impugned order is bad in law and on fact.
2. For that the learned District Forum failed to appreciate that respondent-complainant fell from bicycle on 29.08.2003 and has filed complaint case after 8 years of the cause of action initially arose, that to without any petition for condonation of delay.
3. For that the learned District Forum further erred in law to decide the case of physical handicapped without any certificate issued by Medical Board from Civil Surgeon office.
4. For that the Ld. District Forum without any treatment and its period mentioned in the Medical Certificate decided the case as if the complainant was treated by Dr. Gagandeo Prasad.
5. For that the Ld. District forum further erred in law to decide the present case although as per the terms & condition of the policy the insured did not intimated to the insurance company within one months of occurrence which is violation of the terms & condition of the policy.

12.  Counsel for the appellant/Insurance company submits that the complaint case was time barred and without any application for condonation of delay the District Consumer Forum has passed the impugned order as such impugned order is without jurisdiction. Counsel for the appellant has relied upon the judgment of Supreme Court of India in Kandimalla Raghavaiah and Company Vs. National Insurance Company & Another reported in (2009) 7 Supreme Court Cases 768 & judgment of National Commission reported in II (2012) CPJ 91 (NC).
13. The National Commission in case of Manppuram Finance Ltd. Vs. Oriental Insurance Co. Ltd. reported in 2022(IV) (CPJ) 577 held in a complaint case filed after 9 years from the date of cause of action relying upon judgment of Hon’ble Supreme Court that cause of action is continuing as no action has been taken by opposite parties as such claim is not barred by limitation period and is maintainable. 
14.  The repudiation of claim constitutes the cause of action. The National Commission in case of Saroj Taxfeb India Pvt. Ltd. Vs. New India Assurance Co. Ltd. in F.A. 493 of 2012 decided on 07.02.2013 following the law laid down by Supreme Court in G.N.Sainani’s has held as follows:

“ Respectfully following the law laid down by Supreme Court in G.N. Sainani’s case (supra) and view taken by this Commission in Sirpur Paper Mills Limited’s case (supra), we are of the opinion that the Limitation will start running from the date of repudiation and not from the date of the fire. Till the date of repudiation, appellant did not have any cause of action against the respondent. State Commission has clearly erred in holding that the Limitation will start running from the date of fire and not from the date of repudiation of the claim. Since the order passed by the State Commission runs counter to the law laid down by the Supreme Court and view taken by this Commission, we allow the appeal. Order of the State Commission is set aside and the case is remitted back to the State Commission to decide it on merits in accordance with law taking the complaint to be within time.”

15. The judgment placed by counsel for the appellant are not applicable in facts and circumstances of present case as in the case relied by counsel for the appellant, no claim form was submitted by the claimant to the insurance company for 9 years, however, in present case the claim form with all relevant documents was submitted within time and even on reminder send by opposite party no. 2 to settle the claim either way no decision was taken by the insurance company (O.P. no. 1) to settle the claim and same remained pending with O.P. no. 1, as such it was a continuous wrong and complaint case cannot be said to be time barred.
16.  The appellant/Insurance company never demanded the disability certificate from the complainant and for the first time the demand was made by filing written statement and thereafter, complainant procured the disability certificate from the Civil Surgeon and was placed on record. The complainant had informed the insurance company within 30 days of the accident.
17. Under terms and conditions of insurance policy the insurance company was authorized to get the complainant medically examined by the doctor of insurance company but complainant was never asked to appear before any doctor or medical board constituted by the insurance company. The relevant conditions of insurance policy is reproduced below: 

            1).  Upon the happening of any event which may give rise to a claim under this policy the insured forthwith give notice thereof to the company. Unless reasonable cause is shown, the insured should within one calendar month after the event which may give rise to a claim under this policy, give written notice to the Company with full particulars of the claim.

2).       Proof satisfactory to the Company shall be furnished of all matter upon which a claim is based. Any medical or other agent of the Company shall be allowed to examine the person of the Insured on the occasion of any alleged injury or disablement when and so often as the same may reasonably be required on behalf of the company and in the event of death, to make a post-mortem examination of the body of the Insured, and such evidence as the Company may from time to time require (including a post-mortem examination, if necessary) shall be furnished within the space of fourteen days after demand in writing and in the event of claim in respect of loss of sight the insured shall undergo at the Insurer’s expenses such operation or treatment as the Company may reasonably deem desirable. Provided that in the case of a claim by death or permanent total disablement all sums payable only on the delivery of this Policy cancelled and discharged.

18.  This Commission does not find any error or infirmity in the order passed by the District Consumer Forum requiring any interference by this Commission, accordingly, this appeal is dismissed being devoid of any merit.

(Md. Shamim Akhtar)                                                                                                                  (Sanjay Kumar,J)

       Member                                                                                                                                       President

Md. Fariduzzama