DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 18^th day of April  2015

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                              Date of filing: 19/03/2014

                                                      (C.C.No.46/2014)        

Ramesh.C

S/o.Chandrasekhara Menon,

Ushas, Erattayal,

Kodumbu, Palakkad.                                     -        Complainant

(By Advocate P.Anil & Shiju Kuriakose) 

Vs

1.Ramesh,

   S/o.Kuppan,

   Vadakkethara,

   Marutha Rode,

   Palakkad

(By Advocate Redson Skaria)

2.National Insurance Co.Ltd.

   Palakkad Branch,

   East Fort Complex,

   Kunnathurmedu Post,

   Palakkad                                                   -        Opposite parties

(By Advocate A.R.V.Sankar)

O R D E R

By Smt.Shiny.P.R.  President.

The brief facts of the complaint.

 The complainant is the owner of Tempo Van bearing registration No.KL9-C-6672. On 8/12/2004 the vehicle met with an accident near Malabar  Hospital, Palakkad. At the time of accident the vehicle was duly insured with 2^nd opposite party. 1^st opposite party was the driver of the vehicle at the time of accident. The complainant informed the matter to opposite party immediately after the accident. Due to the accident vehicle was severely  damaged. After the inspection of the officials of 2^nd opposite party, complainant repaired the vehicle. For this complainant spent a  total sum of Rs.63,000/-. Then complainant lodged a claim before 2^nd opposite party to get the claim for own damage. They repudiated the claim. Then the complainant mistakenly filed a petition before the Hon’ble MACT Palakkad for getting compensation for own damages and which was numbered as MVOP 1191/2005. After 8 years complainant revealed the fact that the Hon’ble MACT has no jurisdiction to entertain the petition. Then they filed a withdrawal petition. After getting documents  from the Hon’ble MACT complainant immediately filed the complaint before the forum.  Hence there is no delay in filing the complaint.  According to the complainant it is case of continuous cause of action. Hence the complaint is not barred by limitation. Complainant submitted that repudiation of claim amounts to deficiency in service from the part of 2^nd opposite party. Complainant prays for an order directing Opposite parties to pay Rs.63,000/- alongwith 12% interest from the date of 26/11/2005 and cost of proceedings.

Opposite parties 1 & 2 entered appearance. 1^st opposite party not filed version. 2^nd opposite party filed version stating that since complaint is barred by limitation, it is not maintainable. The other contentions of 2^nd Opposite party are as follows. Complaint is filed only on 19/03/2014.  The alleged accident was happened on 8/12/2004 and  the claim was repudiated on 7/3/2005 stating  that there was an overloading of 4 persons at the time of accident. The limitation period start from 7/3/2005 and the complaint should be filed within 2 years from the date of repudiation. But the complainant came before the Forum only after 9 years. 2^nd Opposite party submitted that dismissal of the petition by the Hon’ble MACT Palakkad was not with liberty to file before CDRF Palakkad. MACT dismissed the petition as withdrawn. Complainant not filed any petition to condone the  delay before the forum.  Opposite party also contended that complainant violated the policy conditions and permit. The accident was occurred due to the overload in the goods vehicle. Due to the over load the driver could not control the vehicle. As per RC Book the seating capacity of the vehicle is 2. As per permit the carrying capacity is one driver and 2 workers. Moreover the complainant did not inform the matter to 2^nd opposite party immediately after the accident. Because of these reasons 2^nd opposite party repudiated the claim of complainant. There is no deficiency in service from the part of 2^nd opposite party. Hence the complaint is to be dismissed with cost.

The complainant and 2^nd Opposite party  filed their respective chief affidavits. Ext.A1 to A9 and Ext.B1 to B12 (a) marked. No oral evidence is adduced by both parties.

Issues are to be considered

1. Whether the complaint is barred by limitation ?
2. Whether there is any deficiency in service on the part of opposite parties ?
3. If so, what is the relief ?

Issue 1

    Both parties heard. We have perused the documents on record. As per Ext.A1 the accident   happened on 8/12/2004. Ext.A4 shows that the claim   was repudiated on 7/3/2005. The very settled law is that in the case of repudiation of claim, the limitation period will start from the date of repudiation. In this case 2^nd opposite party repudiated the claim on 7/3/2005. The complainant ought to have filed the complaint after two years from the date of 7/3/2005. But they filed only on 19/03/2014. The reason  for the delay     submitted    by   the complainant is that they wrongly filed petition after MACT  Palakkad. Ext A7 shows The Hon’ble MACT disposed the case as withdrawn. There is no direction to file the complaint before the proper forum.  Hence it cannot be treated  as recurring  course of action. The Hon’ble National commission held in Megacity (Bangalore) Developers and Builders Pvt.Ltd., V. Rita Adyanthaya (II 2013 CPJ 29A NC CN) that act of petitioner in approaching a wrong forum, will not entitle him to have the delay condoned. They were not even filed delay condonation petition. There was not even any prayer by complainant in his complaint for condoning delay. In Kandimalla Raghavaiah & Co V National Insurance Co Ltd & Another,  complaint filed after more than nine years and too without any application for condonation of delay the Hon’ble SC held that, the complaint was manifestly barred by limitation (2009KHC4761 SC). In this case also complaint  filed  after 8 years and that too without any application for condonation of delay.  Hence the complaint is clearly barred by limitation as the two years period prescribed by Sec 24 A of the Act has expired.  Hence the complaint is not maintainable.  Issue No.1 is found against the complainant.  Hence other issues need not be considered.

          In the result we are of the view that the complaint dismissed as not maintainable.

Pronounced in the open court on this the  day of  18^th April  2015.

       Sd/-

                     Shiny.P.R.

                      President   

                          Sd/-

                     Suma.K.P.

                      Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 –  Copy of FIR in crime No.452/04  

Ext.A2  – Copy of Final report & charge sheet with charge under section 66/R/w

              S.192 of  MVA Act

Ext.A3 – Complainant’s Vakalath and complaint  in OP MV 1191/05

Ext.A4 – Copy of letter sent by 2^nd opposite party to the complainant

Ext.A5 – Paper cutting showing the news of accident

Ext.A6 – Copy of judgement in CC/52/2005 in JFCM Palakkad

Ext.A7 – Copy of order in IA.3618/12 of OPMV 1191/2005

Ext.A8 series –  Bills obtained from National Automobiles

Ext.A9  - Bills obtained from Devi Automobiles

Exhibits marked on the side of opposite party

Ext.B1 – Copy of FIR in crime No.452/04

Ext.B2 – Copy of Final Report & charge sheet with charge under section 66/R/w

             S.192 of MVA Act

Ext.B3 – Copy of RC book to prove carrying capacity

Ext.B4 – Copy of Goods carriage Permit

Ext.B5 series  –Copy of Wound Certificates 7 nos.

Ext.B6 – Copy  of Post Morterm Certificate of Ali

Ext.B7 – Copy of claim petition No.1191/05 filed in  MACT Palakkad.

Ext.B8 – Copy of Award in OP.5/06 and 7/06

Ext.B9 – Copy of Award in OP 1191/05

Ext.B10 – Copy of claim petition in OP 7/06 of MACT of Anil the deceased

Ext.B11 – Copy of claim petition in OP 5/06

Ext.B12 – Copy of Policy to  prove policy violation.  

Ext.B12 (a) – Policy Conditions

Cost  allowed

No cost allowed.