Tripura

StateCommission

A/15/2

The Divisional Manager , National Insurance Co.ltd & Others. - Complainant(s)

Versus

Shri. Pramode Ranjan Chowdhury & Others. - Opp.Party(s)

Mr. A.Nandi.

22 Dec 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

TRIPURA

 

APPEAL CASE No. A/15/2.

 

 

1. The Divisional Manger,

National Insurance Co. Ltd., Divisional Office No.III,

National Insurance Building, 8, Indian Exchange Place,

Kolkata, Pin-700001.

 

2. The Branch Manager,

National Insurance Co. Ltd.

Udaipur Branch, Gomati District, Tripura

Sl. No. 1 and 2 are represented by the Administrative Officer,

National Insurance Co. Ltd, Agartala Division,

Agartala, Tripura West.

 

                  ….    ….    ….    ….    Appellant.

 

                   Vs

 

1. Shri Pramode Ranjan Chowdhury,

S/O Hem Chandra Chowdhury,

Vill: Manubazar (Manpathar), P.O. Manpathar,

P.S: Santir Bazar, Dist: South Tripura, Pin-799744

 

2. Shri Sunil Shil, (Agent, National Insurance Co. Ltd.)

East Kanchanbari, 66 KG, Sub-Station,

SDO Electric Office, P.O. Santirbazar,

P.S. Santirbazar, District: South Tripura, Pin-799744.

                             ….    ….    ….    ….    Respondents.

 

 

PRESENT

 

HON’BLE MR.JUSTICE S.BAIDYA,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR.NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

For the Appellant   :         Mr. Ashish Nandi, Adv.

For the respondent :         Mr. Arjun Acharjee, Adv.

 

Date of Hearing       :       26.09.2015, 03.11.2015 & 16.11.2015

Date of delivery of Judgment: 22.12.2015

J U D G M E N T

 

S. Baidya, J,

            This appeal filed on 15.01.2015 under section 15 of the Consumer Protection Act, 1986 by the appellant Divisional Manager, National Insurance Company Ltd. and another is directed against the judgment and order dated 15.11.2013 passed by the Ld. District Consumer Disputes Redressal Forum (in short District Forum), Udaipur, South Tripura District, in case No.CC-11/2013, whereby Ld. District Forum allowed the complaint filed under section 12 of the Consumer Protection Act in part directing the respondent nos. 1 & 2 of the complaint case, the appellants herein, to pay the sum assured of Rs.2.00 lakhs along with Rs.25,000/- as compensation for deficiency in service with a further direction to pay the said amount within 2 (two) months to the complainant, failing which the amount will carry interest @9% per annum.  

2. The case of the appellants as narrated in the memo of appeal, in brief, is that the complainant, the respondent No.1 herein, lodged a complaint before the Ld. District Forum claiming for realization of assured of sum of Rs.2.00 lakhs in the capacity as insured due to development of permanent disability arising out of electrocution occasioned on 19.03.2007 who was the holder of Group Janata Personal Accidental Insurance Policy bearing No.100300/ 47/ 01/ 9600022/3/ 96/30171 covering the period w.e.f. 15.08.2003 to 14.08.2013 issued by the appellant No.1.
3. It is alleged that the respondent No.2 has shown as an agent and the respondent No.1 intimated the respondent No.2 and made request for lodging proper claim for awarding compensation as per terms and conditions of the policy and at this the respondent No.2 has drawn the attention of the appellant No.2 Branch Manager who issued claim form to submit all necessary documents after expiry of 3 (three) years and 7 (seven) months from the date of accident. It is also alleged that the respondent No.1 finally submitted his claim into the office of the appellant No.2 on 08.11.2010 violating the terms and conditions of the policy without mentioning the date as to when the incident of alleged accident of the complainant was intimated to the appellants.
4. It is also alleged that under Group Janata Personal Accident Scheme, the insured is the organization namely, Golden Multi Services Club of GTFS, Udaipur, a corporate agent of the appellant, but the respondent No.1, the complainant is one of the beneficiaries of the said policy and if any incident/accident occurred during the coverage period of the policy, the beneficiary should lodge the claim to the said corporate agent.
5. It is also alleged that the complainant during the pendency of his delayed claim has knocked the door of Ld. District Forum for consideration of his claim after the expiry of more than 6 (six) years from the date of accrual of the cause of action.
6. It is also alleged in the memo of appeal that the appellants contested the claim of the complainant by filing written objection alleging inter alia, that the claim of the respondent No.1-complainant was repudiated vide letter dated 04.04.2012 on the grounds that the claim of the respondent No.1 was submitted after a lapse of 3 (three) years  and 7 (seven) months from the date of the accident and also on the ground that the respondent No.1 failed to show any reasonable ground for such long delay. It is also alleged that the Ld. District Forum allowed a time barred complaint and passed an award by an illegal and unsustainable judgment and thereby being aggrieved and dissatisfied, the appellants-opposite parties nos. 1 & 2 have preferred the instant appeal challenging the legality and justifiability of the impugned judgment on the grounds that the Ld. Forum exceeded the jurisdiction vested in it by entertaining a time barred claim as per provision of section 24A of the C.P. Act, 1986, that the Ld. Forum miserably failed to exercise its judicial mind in passing the impugned judgment, that the Ld. Forum also failed to appreciate any reason for considering the complaint in the absence of any assurance by the appellants against the spirit of citation enumerated in A.I.R., 2002, SC at Page-1250, that the Ld. Forum committed illegality in passing the impugned judgment over a time barred complaint and as such, the impugned judgment cannot be sustained in the eye of law and is liable to be set aside and hence, the instant appeal has been preferred.

 

Points for Consideration

 

7. The points for consideration are (i) whether the Ld. District Forum entertained a time barred complaint and (ii) whether the impugned judgment passed by the Ld. District Forum was proper, legal and justified and (iii) whether the judgment under appeal should be set aside as prayed for.

 

Decisions with reasons

 

8. All the 3 (three) points being inter-related are taken up together for the sake of convenience and brevity.
9.  At the outset, it is found necessary to mention that one Shri Sunil Shil, an agent of the National Insurance Company Ltd. was made as Opposite Party No.3. in the complaint filed before the Ld. District Forum. It also transpires that the said Shri Sunil Shil was also made as respondent No.2 in this appeal. It also transpires that during the pendency of this appeal the name of the respondent No.2 was expunged vide order dated 04.07.2015.
10. The Ld. Counsel for the appellants submitted that the incident of electrocution of the complainant-respondent No.1 occurred on 19.03.2007. He also submitted that it is admitted position that the complainant purchased a Group Janata Personal Accident Insurance Policy for an assured sum of Rs.2.00 lakhs on 15.08.2003 covering a period from 15.08.2003 to 14.08.2013. He also submitted that the said incident took place while complainant was serving on duty at Bagafa Electric Control Room. The Ld. Counsel for the appellants also submitted that as the incident of electrocution occurred on 19.03.2007, it was the date on which the cause of action arose. He also submitted that the complainant submitted his claim for compensation before the insurance company on 08.11.2010 after the expiry of 3 (three) years and 7 (seven) months from the date of the said accident. He also submitted that the claim of the complainant was repudiated by the appellants vide letter dated 04.04.2012 on the grounds that the claim of the respondent No.1-complainant was submitted after a lapse of 3 (three) years and 7 (seven) months from the date of the accident and also on the ground that the complainant failed to show any reasonable ground for such long delay in submitting his claim.
11. The Ld. Counsel for the appellants also submitted that although the claim of the complainant was repudiated by the appellants on 04.04.2012, the complainant lodged the complaint under section 12 of the C.P. Act before the Ld. District Forum on 06.06.2013 as appearing from the order sheet. He also submitted that the complaint petition has been filed after more than 6 (six) years from the date of accrual of the cause of action which arose on 19.03.2007. He also submitted that the complainant at time of lodging the complaint before the Ld. District Forum after more than 6 (six) years from the date of cause of action did not file any application supported by an affidavit for condoning the delay in lodging complaint after more than 6 (six) years. He also submitted that the section 24 A (1) of the C.P. Act, 1986 provides for entertaining and admitting a complaint, if it is filed within 2 (two) years from the date on which the cause of action has arisen. He also submitted that as per provision of section 24A (2) of the C.P. Act, a complaint may be entertained after the expiry of 2 (two) years specified in sub-section-1, if the complainant satisfies the Consumer Fora that he had sufficient cause for not filing the complaint within such period. He also submitted that admittedly, the complainant did not file any such application under section 24 A of the C.P. Act for condoning the delay of more than 4 (four) years excluding the period of limitation as provided in sub-section-1 of the said Act for lodging the complainant before the Ld. District Forum on 06.06.2013. He also submitted that the complaint under section 12 of the C.P. Act, so lodged by the respondent No.1-complainant is a time barred complaint, but the Ld. District Forum passed the impugned judgment upon the said time barred complaint which has made the impugned judgment totally illegal and unsustainable in law and therefore, is liable to be set aside.
12. The Ld. Counsel for the appellants also submitted that the point of law of limitation is a question of law which can be raised even at the appellate stage. He also submitted that it is true that the present appellants in their written objection did not raise the question of law of limitation, but as per settled law of the land, the point of law of limitation does not require to be pleaded in the written objection and it can be raised even before this Hon’ble Commission. He also submitted that as the impugned judgment has been passed over a time barred complaint and as such, the impugned judgment cannot be sustained in the eye of law and is liable to be set aside and the complaint is non-maintainable in law, being time barred and therefore, it is liable to be dismissed and the appeal is liable to be allowed.
13. In this regard, the Ld. Counsel for the appellants filed a photocopy of the judgment passed by this Commission in FA/12/2014 in between National Insurance Company Ltd. and another Vs Smt. Juthika Das and submitted that in the said case also there involved the question of limitation and the Ld. District Forum disregarding the said question of limitation as provided under section 24 A of C.P. Act, 1986 awarded compensation by a judgment dated 27.12.2014 which was challenged by the National Insurance Company Ltd. in F.A.-12/2014. He also submitted that this Hon’ble Commission in the above mentioned appeal has been pleased to pass the judgment holding that for violation of section 24 A of the C.P. Act, 1986 in lodging the complaint under section 12 of the said Act has rendered the said complaint non-maintainable in law being time barred. He also submitted that the said principle of law is also applicable in the instant appeal and accordingly, the complaint over which the Ld. District Forum passed the impugned judgment being non-maintainable in law is liable to be dismissed as time barred complaint.   
14. The Ld. Counsel for the respondent No.1-complainant submitted that it is true that the complainant did not file any application under section 24 A of the C.P. Act, 1986 separately at the time of filing the complaint before the Ld. District Forum praying for condonation of delay in lodging such complaint. He also submitted that the complainant has explained the delay in the complaint petition itself and the Ld. District Forum being satisfied with the explanation of delay given in the complaint, practically condoned the delay. He also submitted that the appellants submitted nothing against merit of the case, but only submitted on the question of law of limitation as provided under section 24A of the C.P. Act, 1986. He also submitted that the Ld. District Forum being satisfied with the explanation of delay as narrated in the complaint petition, entertained the complaint and accordingly, passed the impugned judgment which being proper, legal and justified, should be affirmed and having no merit, the appeal should be dismissed.
15. The Ld. Counsel for the respondent No.1-complainant also submitted that the complainant being the petitioner filed the Execution Case being CC (Ex) No.5 of 2014 for the realization of amount awarded by the impugned judgment, but due to the filing of the instant appeal and also as the operation of the impugned judgment has been stated by this Commission, the complainant could not proceed further with such Execution Case. He also submitted that as the Ld. District Forum has been satisfied with the explanation of delay as appearing in the complaint, so, the impugned judgment being proper, legal and justified, should be affirmed and the appeal should be dismissed with cost.  
16. We have gone through the pleadings of the parties, the evidences, impugned judgment, the memo of appeal, the photocopy of the judgment passed in FA/12 of 2014 and the principle of law laid down by the Hon’ble Apex Court in the case reported in A.I.R. 2002 Supreme Court 1210. We have also considered the submissions made by the Ld. Counsels of both sides. Going through the record of the Ld. District Forum, we find that there occurred some other inherent defects in the proceeding arising out of the application under section 12 of the C.P. Act, 1986. It transpires that the complaint petition under section 12 of the C.P. Act was received by the Ld. District Forum on 06.06.2013 on which it was registered as CC case and on the same date, the order to issue notice upon the O.P. was also passed fixing the next date i.e. on 11.07.2013 for S.R. (service return of notice). It also appears that on 11.07.2013, on prayer of the opposite party the date was fixed for filing W.S. It appears to us that the manner in which the proceeding under section 12 of the C.P. Act was initiated, as if it was a plaint before a Civil Court. The proviso to sub-section 3 of section 12 of the C.P. Act provides for admission of a complaint within 21 days from the date on which the complaint was received, but going through the Order Sheets of the record of the Ld. District Forum, we find that the Ld. District Forum passed no order regarding the admissibility of the complaint as provided under proviso to section 12 (3) of the C.P. Act. As per provision of the C.P. Act, order to issue notice upon the opposite party imposes a pre-condition for taking a decision of the Consumer Fora regarding the admissibility of the complaint for further proceeding. So, it is clear that the mandatory provision to decide on the question of admissibility of the complaint for further proceeding as provided under proviso to section 12 (3) of the C.P. Act has been violated.
17. If we go into the merit of the case, we find that the accident occurred on 19.03.2007 and in August, 2008, surgery was done on the face and eye of the complainant and one hand was also cut by the doctor as narrated in Para-4 of the complaint which also speaks that the complainant Shri Pramode Ranjan Chowdhury was discharged from the hospital on 11.09.2009. In this regard, it is found necessary to mention that after the disposal of the complaint case being CC-11 of 2013 in the Ld. District Forum, the Ld. Advocate Mr. Arjun Acharjee who is also representing the complainant-respondent No.1 in this appeal received back all the original documents from the Ld. District Forum on 29.11.2013 as appearing from the endorsement made on the rights-side margin of the order dated 15.11.2013. It further appears that the appeal was heard on 26.09.2015 and the matter of withdrawal of the original documents as mentioned above has come to our notice at the time of preparation of judgment and accordingly, this Commission vide Order dated 14.10.2015 requested the Ld. Advocate Mr. Arjun Acharjee to produce all the original documents which he received back from the Ld. District Forum, in this appeal. It also transpires that Ld. Advocate Mr. Acharjee filed only some documents as per list on 03.11.2015 and as all the documents have not been filed, on prayer of Mr. Acharjee, the date 16.11.2015 has been fixed for production of remaining documents, but on 16.11.2015, Mr. Acharjee appeared and submitted that his client (respondent No.1) informed him that no other documents are lying with him and as such, he was not in a position to file any other document. Going through the said documents, it transpires that the documents regarding registration and discharge memo of hospital which was submitted before the Ld. District Forum has not been filed in this appeal. In the absence of said documents there is no scope to say as to on which date after the said accident the complainant was admitted in the hospital and on which date he was discharged from the hospital. In fact, we find that the complainant filed no medical paper showing the medical treatment of the complainant in the hospital as indoor patient. Assuming that the statement of the complainant pleaded in Para-4 of the complaint is true, but the fact remains that the date of discharge of the complainant from the hospital as indoor patient on 11.09.2009 was more than 2 (two) years from the date of accrual of the cause of action which arose on 19.03.2007. In this regard, we find it appropriate to quote the provision of section 24A of the C.P. Act, 1986 which reads as follows:-

24A. Limitation Period.-(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2)     Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

          Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.

18.  From the above section 24A of the C.P. Act, it appears that the Consumer Fora cannot admit a complaint unless it is filed within 2 (two) years from the date on which the cause of action has arisen. The  section 24A (2) of the said Act also provides that a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the Consumer Fora that he had sufficient cause for not filing the complaint within such period. The complaint under section 12 of the C.P. Act has been filed before the Ld. District Forum on 06.06.2013. So, it is found that the complainant failed to lodge the complaint before the Ld. District Forum, not only within two years from the date of accrual of the cause of action, but also immediately after his discharge from the hospital on 11.09.2009. Admittedly, the complainant lodged his claim before the appellant insurance company on 08.11.2010. The lodging of the said claim before the insurance company on 08.11.2010 is also found after the expiry of 3 (three) years and 7 (seven) months from the date of accrual of the cause of action. It transpires from the letter of repudiation dated 04.04.2012 that the claim of the complainant was rejected by the National Insurance Company Ltd., the appellants herein, on the plea that the claimant intimated the incident to the insurance company after a lapse of 3 (three) years and 7 (seven) months from the date of incident which is in violation of the condition of limitation under the G.P.A. Insurance Policy. It also transpires from the condition of the G.P.A. Insurance Policy that unless reasonable cause is shown, the insured should intimate the incident to the insurance company within one calendar month after the incident.  
19. Admittedly, the complaint under section 12 of the C.P. Act has been lodged before the Ld. District Forum after the expiry of more than 6 (six) years from the date of accrual of the cause of action which arose on 19.03.2007. It is crystal clear that for lodging the complaint before the consumer Fora it must be filed within 2 (two) years from the date of cause of action. The Consumer Fora may entertain a complaint even after the expiry of 2 (two) years, if the complainant had sufficient cause for not filing the complaint within the said period of 2 years. It is needless to say that the admissibility of a complaint as provided under proviso to section 12 (3) of the C.P. Act raises the question of maintainability of a complaint in the eye of law which includes the question of limitation as provided under section 24A of the C.P. Act. It is palpable that the Ld. District Forum did not consider the legal question of admissibility of the complaint as mentioned above and thereby overlooked the applicability of the mandatory provision of law of limitation. Be that as it may, if the complaint is lodged after the expiry of 2 (two) years from the date of accrual of the cause of action as provided under section 24A of the C.P. Act and if the complainant failed to show any sufficient cause for not filing the complaint within the specified time by filing an application under section 24A of the C.P. Act, for getting such delay condoned, the complaint is bound to be held non-maintainable in law being barred by law of limitation. In the instant case, it happened.
20. It has already been mentioned that the complaint was lodged before the Ld. District Forum after the expiry of more than 6 (six) years. Out of it 2 (two) years as provided under section 24A (1) of C.P. Act is the legally admissible period within which complaint can be lodged before the Consumer Fora. So, excluding the above mentioned 2 (two) years, the complainant filed no application before the Ld. District Forum under section 24A of the C.P. Act for getting the delay of remaining 4 (four) years condoned for filing the complaint. That being the position, it is palpable that the complaint under section 12 of the C.P. Act lodged by the complainant before the Ld. District Forum on 06.06.2013 is not legally maintainable being time barred under section 24A of the said Act. Going through the impugned judgment, we find that the Ld. District Forum totally overlooked this legal aspect of the case and overlooking the same entertained a time barred complaint and passed the impugned judgment over the said time barred complaint which cannot be sustained in the eye of law. Accordingly, we are of the view that the impugned judgment passed over a time barred complaint by the Ld. District Forum is found not proper, legal and justified and as such, it is liable to be set aside and the appeal is liable to be allowed. All the points are, thus, disposed of.
21. In the result, the appeal is allowed with cost. The impugned judgment dated 15.11.2013 passed by the Ld. District Forum, South Tripura at Udaipur in case No.CC-11/2013 is hereby set aside.
22. The appellants is directed to deposit a sum of Rs.5000/- as cost of appeal in the Legal Aid Account of this Commission within 5 (five) weeks from the date of this judgment, failing which this amount shall carry interest @9% per annum after the expiry of 5 (five) weeks till the payment is made in full.             

 

       

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura