Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member

          This is an appeal filed by org. O.P./Insurance Company against the judgement and award passed by South Mumbai District Consumer Forum in consumer complaint No.221/2007 decided on 31/03/2010.  Forum below while allowing the complaint directed the O.P./Insurance Company to pay a sum of Rs.3,84,000/- with interest @ 9% p.a. from 19/03/2007 till the realization of entire amount.  Forum below also directed to pay to the complainant cost of Rs.1,000/- and comply the order within one month from the date of receipt of the order.  Aggrieved by this award, org. O.P./Insurance Company has filed this appeal.

          The facts to the extent material may be stated as under :-

Complainant-Shri Sayyed J.A. Wadod had purchased Bolero GLX 200 vehicle in 2001 for a sum of Rs.5,15,900/-.  Said vehicle was registered with RTO having Regd. No.MH-04-BD-3763.  Said vehicle was purchased on vehicle loan taken from Tata Finance Ltd.  It was mortgaged with Tata Finance Ltd.  The owner had taken comprehensive insurance policy from the O.P.  Said policy was in force from 30/10/2003 to 29/10/2004.  Necessary premium was paid by the complainant and Insured Declared Value of the said vehicle as mentioned in the policy was Rs.3,84,000/-.  According to the complainant said vehicle was in the custody of his friend Shri Prakashchandra Sanghavi, residing at Akash Building, A wing, Gokuldham, Goregaon (E) from February 2004.  On 22/04/2004 when said vehicle was in the custody of Shri Sanghavi, somebody has stolen the vehicle from the premises of Akash Building, Goregaon (E).  Shri Prakashchandra Sanghavi immediately lodged police complaint about theft of the vehicle on 27/04/2004.  Incident of theft of vehicle was also intimated to the Tata Finance Ltd. and to the RTO.  O.P. was also informed about theft of the insured vehicle.  In due course, he lodged claim with the Insurance Company and provided documents as demanded by the Insurance Company, but no decision was taken.  Therefore, he sent notice through his Advocate on 10/03/2007 and claimed damages.  Even after receipt of notice, Insurance Company did not bother to give reply to the notice or to give compensation for indemnification of the lost vehicle.  Therefore, complainant filed consumer complaint and claim Rs.4 Lakhs with interest @ 12% p.a. and also prayed for compensation and costs.

          O.P. filed written statement and denied the allegations made by the complainant.  According to the O.P./Insurance Company, complaint as filed by the complainant is absolutely barred by limitation in terms of Section 24-A of Consumer Protection Act, 1986.  On that count, Insurance Company insisted that complaint should be dismissed with costs.  O.P. pleaded that it had rejected the claim of the complainant by sending repudiation letter on 21/03/2005.  Even thereafter, within two years complainant had not filed consumer complaint.  As such on this ground alone, claim should have been negatived by the District Consumer Forum.  O.P. also pleaded that on receipt of intimation of theft of vehicle, they had appointed V.B. Associates as investigator.  They made detailed inquiry and submitted inquiry report on 22/02/2005.  In his report they opined that said vehicle was used by the complainant for hire and reward in violation of terms and conditions of the policy.  Complainant’s Income Tax Return had shown that he had received vehicle hire charges of Rs.4,21,6602/-.  On this ground also O.P. pleaded that complainant is not entitled to get any compensation in terms of policy in question.

          Relying on the affidavits and documents filed by both the parties, Forum below held that complaint as filed by the complainant was within limitation and complainant had successfully proved the deficiency in service on the part of Insurance Company and as such it was pleased to pass the award as mentioned in the opening para of this judgement.  Aggrieved by this award, Insurance Company has filed this appeal.

          We heard Mr.A.S. Vidyarthi, Advocate for the appellant and yesterday, we had heard Mr.R.R. Shinde, Advocate for the respondent.  Appeal was adjourned for today solely for the purpose of producing any counter judgement of the Supreme Court on the specific request made in that behalf by Advocate Mr.Shinde.  Today, unfortunately Advocate Mr.Shinde has not come and respondent is present in person.  It means that respondent has no other case law in his favour to cite before us as against the case law of the Supreme Court as cited by Advocate Mr.Vidyarthi.

          According to Advocate Mr.Vidyarthi consumer complaint is required to be filed from the date of cause of action within two years and not from the date of repudiation letter as was contended by Advocate Mr.Shinde, Learned Counsel for the respondent.  Moreover, Mr.Vidyarthi further pointed out that they had sent repudiation letter on 21/03/2005 whereas this complaint has been filed on 19/07/2007 which is absolutely after lapsing of two years period which is the limitation provided under Section 24-A of Consumer Protection Act,1986 for entertaining complaint. 

That apart, Mr.Vidyarthi relied upon the judgement of the Supreme Court in the case of Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd. & Anr., III (2009) CPJ 75 (SC).  In this case Hon’ble Supreme Court had an occasion to discuss the term of cause of action and period of two years to be computed from the date of cause of action.  It was our belief till today that cause of action accrued to the complainant when the Insurance Company repudiates the claim by sending letter to that effect, but in this case, the Hon’ble Supreme Court clearly laid down as follow :-

“The term “cause of action” is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import.  It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue.  Generally, it is described as “bundle of facts”, which if proved or admitted entitle the plaintiff to the relief prayed for.  Pithily stated, “cause of action” means the cause of action for which the suit is brought.  “Cause of action” is cause of action which gives occasion for and forms the foundation of the suit [See: Sidramappa V. Rajashetty & Ors., (1970 1, SCC 186].  In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out.”

In view of the legal position laid down as above, if it is case of theft, undoubtedly the accrual of cause of action shall be the date on which the theft had taken place.  If it is a case of damage caused due to flood, undoubtedly the cause of action shall be the date on which there was heavy flood and the insured property was damaged in the flood.  If it is a case of vehicle stolen away by unknown person from the possession of the complainant, the date of theft would be the cause of action and within two years therefrom, the aggrieved person has to file consumer complaint in terms of provisions of Section 24-A of Consumer Protection Act, 1986.  This is what clearly laid down by the Hon’ble Supreme Court in the ruling, mentioned supra.  In view of this, on this ground alone the appeal will have to be allowed quashing and setting aside the award passed by the Forum below.

It is to be noted that the Forum below had discussed the provisions of Section 24-A of Consumer Protection Act, 1986 since the issue of limitation was raised by the appellant in written statement.  But, Forum below was of the view that repudiation letter which was on record was not appearing to have been sent by the Insurance Company or received by the complainant.  In the light of that fact, Forum below held that complaint as filed in 2007 was within limitation but, then the Supreme Court ruling mentioned above is applicable to the instant case and it will have to be held that complaint as filed by the complainant in the Forum below in 2007 was absolutely barred by limitation, in view of the fact that cause of action arose in this case on the date of theft i.e. 22/04/2004 and from that date within two years respondent herein had not filed consumer complaint.  In the result, we have no option but to allow the appeal to quash and set aside the order passed by the Forum below.  Hence, we pass the following order :-

                             -: ORDER :-

1.       Appeal is allowed.  The impugned order dated 31/03/2010 is quashed and set aside.  The complaint stands dismissed.

2.       Parties are left to bear their own costs.

3.       Amount deposited by the Insurance Company/appellant herein be refunded to the appellant forthwith by Registrar of this Commission.

4.       Copies of the order be furnished to the parties.