Sri Subhra Sankar Bhatta, Presiding Member

1. The present appeal has been preferred at the behest of 1) The Manager, AVP Claims Operations, SBI General Insurance Company 2) The General Manager, Customer Relationship-Claims, SBI General

2. Insurance Company Limited and 3) The Manager, SBI General Insurance Company Limited under Section 15 of the Consumer Protection Act, 1986 assailing the impugned judgment and order dated 27.04.2018 passed by the District Consumer Disputes Redressal Forum, Muchipara, Burdwan (herein after referred to as “District Commission” for short) in connection with consumer complaint case no. 208 of 2016 whereby and whereunder Ld. District Commission was pleased to pass the following order:

“O R D E R E D

That the case be and the same is allowed in part on contest against OP Nos. 1 to 3 with cost and dismissed on contest against the OP No. 4 without any cost.

The OP No. 1 to 3 are directed to settle the claim on non-standard basis by paying 75% of the claim amount of Rs.8,85,316/- along with interest @8% p.a. from the date of filing of this case.  OP Nos. 1 to 3 are further directed to pay Rs.3000/- for deficiency in service causing mental pain, agony and harassment and to pay Rs.2000/- towards the litigation costs to the Complainant within 45 days from this date of order, failing which the Complainant may execute this case in accordance with law.

Let the copies of this order be supplied to the parties free of cost.”

3. Respondent No. 1 Tabrej Khan alias Md. Tabrej Khan as Complainant instituted a petition of complaint under Section 12 of the Consumer Protection Act, 1986 being complaint case no. CC/208/2016 against the OPs praying for relief/reliefs as sought for in the prayer portion of the petition of complaint.  The fact of the case as portrayed in the body of the petition of complaint, is that, OP Nos. 1 and 3 are the General Insurance Company who used to sell its policy. The Complainant had purchased a vehicle from his friend Rajib Bose in order to earn money for maintaining his livelihood along with the family members. The detail description of the said vehicle has been given in the `A’ schedule of the petition of complaint.  Subsequently, all the relevant papers and documents in respect of the said vehicle in question were transferred in the name of the Complainant.  It has been contended that the Previous Owner of the said vehicle insured the `A’ schedule vehicle under the policy (more particularly described in schedule `B’).

4. Further case of the Complainant, is that, schedule `A` vehicle which is light weight goods carrying vehicle. For the purpose of plying the same on the road the Complainant engaged one Driver namely Md. Kurban.  One Khalasi namely Amir Khan who was also engaged by the Complainant in order to earn bread and butter for his family.  During the course of plying `A` schedule vehicle met with an accident on the road at Burdwan near Sachimata Cold Storage. Khalasi Md. Amir Khan was shifted to the Burdwan Medical College in a precarious condition and the injured Amir Khan was declared to be dead.  An FIR was lodged before the Burdwan Police Station which was registered as Burdwan P.S. Case No. 1345/2014.  The Police Authority seized the `A` schedule vehicle in a damaged condition and after obtaining Court`s order the same was released and also sent to OP No. 4 (garage) for repairing.  Thereafter, the Complainant also lodged his claim before OP No. 3 basing upon the Insurance Policy but the claim of the Complainant was repudiated by the Insurance Company by sending a letter on 17.04.2015 on the ground of driving of the vehicle at the relevant time of accident by the Khalasi/Amir Khan, since deceased or that wrong information was given to the Police or that deceased Amir Khan did not have any driving licence at the relevant time of happening the accident.

5. Further case of the Complainant, is that, after getting the said repudiation letter the Complainant requested OP Nos. 2 and 3 to review regarding the claim of the Complainant vide letter dated 02.12.2015 but no reply was received from the end of the OPs.  Moreover, telephonic conversation was done from the end of the Complainant requesting the OPs to review the claim but the OPs did not pay any heed to it.  The OP No. 4 in connivance with OP Nos. 1, 2 and 3 sent letter to the Complainant disclosing the fact that `A` schedule vehicle has been lying in an unrepaired condition since 22.12.2014 and the claimed bill of Rs.8,85,316/- has been estimated towards the repairing cost of the said vehicle.  Lastly, on 15.09.2016 the OP No. 1 conveyed the Complainant over telephone about the final decision of repudiation of the said claim and since then the Complainant has been moving like a shuttle from office to office of the OPs (Insurance Company).  Finding no other alternative the Complainant was compelled to institute the complaint case before the District Commission praying for relief and redressal.

6. The OP Nos. 1, 2 and 3 jointly contested the complaint case by filing written version wherein they denied all the material allegations as levelled in the body of the complaint petition.  The OPs contended that the vehicle in question (white colour truck TATA-1109) having registration no. JH-10AC/1051, Chassis No. MAT457403B7G31268, Engine No. 497TC92GYY838934, Makes/Model TATA MOTORS LIMITED/2011, Type of Body –LP1109/42, Class of Vehicle –HGV, Fitness Certificate No. 38, Period of validity upto 28.11.2015, Permit No. 19734/12 validity period upto 12.04.2017, type of permit- National, Route/Area of Operation/ All over India, Tax paid upto 03.02.2015 vide T.T. No. D1411031310 was insured.  It has been also contended that the said vehicle was purchased from one Rajib Bose, friend of the Complainant after availing loan and subsequently, the said vehicle was transferred in the name of the Complainant. It has been also contended that the Complainant got insured of the said vehicle under comprehensive package policy bearing No. 1418550 by transfer of ownership from said Rajib Bose and thereafter, the said vehicle was insured with SBI General Insurance vide its letter dated 24.12.2013 as agreed and from 24.12.2013. The interest in the policy was transferred and vested with the Complainant, Md. Tabrej Khan who shall be deemed to be the Insured and whose proposal and declaration dated 24.12.2013 shall be deemed to be incorporated and on the basis of such contract an amount of Rs.2905/- was recovered from the new insured having the policy period commencing from 24.12.2013 (03:30p.m) to 10.12.2014(midnight) with a sum assured of Rs.9 lakhs (IDV).

7. Further case of the defence, is that, the Complainant engaged one Driver viz. Md. Kurban and one Khalashi namely Amir Khan for plying the vehicle in question.  On 09.12.2014 at about 2.45 a.m. the said vehicle met with an accident near Burdwan at Sachimata Cold Storage on the way to Kolkata.  Due to such accident the said vehicle was severely damaged and the Driver and Khalashi both were seriously injured.  Both the injured were shifted to Burdwan Medical College and Hospital in a serious condition.  Injured Amir Khan was declared to be dead and as a consequence of which an FIR was lodged by one Md. Younus, Son of Late Abdul Aziz of Fushbangla under P.S. –Jorapakhar, Dist-Dhanbad before the Burdwan Police Station and the said FIR was registered as Burdwan P.S. FIR No. 1345 dated 14.12.2014 under GR case No. 4450/14 under Sections 279/337/338/427/304A of the IPC. During investigation the concerned Police Officer seized the said vehicle and subsequently released the same after obtaining order from the Ld. Court.  Thereafter, the vehicle was sent to OP No. 4 for getting for the purpose of repairing.  The Complainant placed a claim on 14.01.2015 before the OP No. 3 which was numbered as 151362. OP Nos. 1 to 3 repudiated the claim of Complainant by sending a letter on 17.04.2015 stating that during the material point of time of the accident the vehicle was driven by the deceased Amir Khan (Khalasi) or that wrong information was given to the Police or that deceased Amir Khan did not have any effective driving licence at the material point of happening the accident.  According to the defence the Complainant is not entitled to get the claimed amount for violation of the required terms and conditions of the insurance policy.  It has been alleged that the Complainant intentionally and deliberately misled the Ld. Commission by furnishing wrong information. The Complainant ignored the investigation report with some motive. It has been categorically contended that the Driver of the vehicle could not have escaped from the mangled cabin and must have sustained grievous injurious due to such accident whereas the Khalasi side of the vehicle i.e. left side was almost intact.  The Investigator referred the matter to SBI GICL for medico legal opinion after perusing the contents of the post mortem report.  It is the clear case of the OPs that Amir Khan the Khalasi of the vehicle was driving the said vehicle at the time of happening the accident and sustained severe injuries and also succumbed to his injuries. It has been also alleged that the Complainant violated the Driver’s clause of the insurance policy as well as relevant section of the Motor Vehicles Act and as such the OPs were constrained to repudiate the claim of the Complainant.  The OPs further contended that there was no laches, negligence or deficiency in rendering proper service to the Complainant. The Complainant did not produce the relevant papers and Driving licence of Amir Khan for verification and as such OP No. 1 was constrained to decide that the said Amir Khan did not hold any valid driving licence and it is a clear violation of the Driver`s Clause of the Insurance Policy as well as relevant sections of the Motor Vehicles` Act. The OPs prayed for dismissal of the complaint proceeding. 

8. After considering the evidence on record (both oral and documentary) adduced from the end of the parties to the complaint case and on hearing the Ld. Counsels of both sides Ld. Commission below was pleased to allow the complaint case in part on contest against the OP Nos. 1 to 3 with costs and dismissed on contest against OP No. 4 without any order as to costs.  Ld. Commission below was also pleased to direct OP No. 1 to 3 to settle the claim on non-standard basis by paying 75% of the claim amount of Rs.8,85,316/- along with interest @ 8% p.a. from the date of filing the case. The Ld. Commission below was further pleased to direct OP No. 1 to 3 to pay Rs.3000/- for deficiency in service causing mental pain, agony and harassment and to pay Rs.2000/- towards the litigation costs to the Complainant within 45 days from the date of order failing which the Complainant may execute the order in accordance with law.

9. During the course of hearing Ld. Counsel appearing for the Appellants has advanced a marathon argument on the point of limitation. It is submitted that the Complainant, Tabrej Khan alias Md. Tabrej Khan instituted the Complaint Case under Section 12 of the Consumer Protection Act, 1986 before the Ld. District Commission on 06.12.2018 against the Opposite Parties. The Appellants repudiated the claim of the Complainant by issuing a letter dated 17.04.2014. Thus, it is crystal clear that the Complainant filed the petition of complaint after two years from the date of such repudiation of the claim. Ld. Counsel has also submitted that no application under Section 24A of the Act was accompanied along with the complaint petition. On such contention Ld. Counsel has relied upon the decision rendered by the Hon’ble NCDRC in original petition No. 55/2001. It has been further argued that by virtue of Article 44 of the Limitation Act, 1963 the point of limitation has to be reckoned or counted from the date of repudiation of an insurance claim. According to the Ld. Counsel Ld. District Commission totally failed to appreciate such position of law at the time of passing the judgment and order. Ld. District Commission observed in the body of the judgment (page 3 line 3) that “lastly on 15.09.2016 the OP No. 1 conveyed the Complainant over telephone about the finality of their decision of repudiation about the said claim and since then the Complainant is moving like a shuttle in the office of the Opposite Parties.” On this score Ld. Advocate has vehemently argued that if that date is taken into consideration in that event also the Complaint petition was not filed within the stipulated period of two years from that date. Ld. Counsel has also relied upon the decision reported in 2009 (7) SCC 768 of the Hon’ble Apex Court of India and 2015 (1) CPJ 131 & 2015 (1) CPJ 691 and candidly submitted that subsequent communication can never be considered to be the extension of starting point of limitation. According to the Ld. Counsel the Complaint Case filed by the Complainant is hopelessly barred by the law of limitation and consequently the Complainant is not entitled to get any relief as sought for in the prayer portion of the petition of complaint.

10. The present Appellants as Opposite Party Nos. 1, 2 and 3 filed their written version jointly and contested the complaint petition. In the body of the written version the Opposite party Nos. 1, 2 and 3 specifically raised the question of limitation in Para No. 6 of their written version. On the point of limitation Ld. District Commission has failed to reach at a definite conclusion. It is the observation of the Ld. District Commission that the Opposite Parties repudiated the claim of the Complainant by issuing a letter dated 17.04.2015 on the very ground that the said vehicle was driven by the Khalasi (deceased Amir Khan at the relevant point of happening the accident but wrong information was given to the Police and that deceased Amir Khan did not have valid driving licence at the relevant point of happening the accident. Ld. District Commission has observed in the body of the impugned judgment that the Complainant sent a letter to the Opposite Party Nos. 2 and 3 to review the claim of the Complainant and the said letter was sent after the repudiation of the claim. It has been also observed that lastly on 15.09.2016 the OP No. 1 conveyed the Complainant over telephone about the finality of their decision towards repudiation.

11. Admittedly, Complainant filed the petition of complaint before the Ld. District Commission on 06.12.2018. Undisputedly, the Opposite Parties repudiated the claim of the Complainant by issuing a letter dated 17.04.2014. Thus it can be safely concluded that the Complaint petition was filed after the expiry of two years from the date of repudiation. The Complainant did not also file any application under Section 24A of the Consumer Protection Act, 1986 along with the petition of complaint. In our considered view it is the settled principles of law that the point of limitation has to be counted from the date of repudiation of an insurance claim. In page 3 Ld. Commission has categorically observed that lastly on 15.09.2016 the OP No. 1 conveyed the Complainant over telephone about the finality of their decision of repudiation of the said claim. This aspect too goes to prove that the Complainant failed to present the petition of complaint within the stipulated period of limitation.

12. Considering all aspects from all angles and keeping in mind the elaborate submission of the Ld. Counsel for the Appellants and regard being had to the cited decisions of the Hon’ble Apex Court and Hon’ble National Commission we hold and firmly hold that the complaint case filed by the Complainant is hopelessly barred by the law of limitation and consequently Complainant/Respondent is not entitled to get any relief/reliefs as sought for in the prayer portion of the petition of complaint. The observations and findings of the Ld. Commission below are not justified and in accordance with law. Practically, Ld. District Commission failed to arrive at a definite conclusion on the point of limitation. We find much substance in the argument advanced by the Ld. Counsel for the Appellants. Thus being the position we are inclined to hold that the impugned judgment and order of the Ld. Commission below deserve interference.

13. Discussions on other points are redundant at this stage pursuant to the above observation.

14. Resultantly, the present appeal succeeds ex parte.

15. The impugned judgment and order of the Ld. District Commission require to be set aside.

16. It is, therefore,

O R D E R E D

That the present appeal being no. A/602/2018 be and the same is allowed ex parte against the Respondents but considering the attending circumstances no order as to costs.

17. The judgment and order dated 27.04.2018 passed by the Ld. District Consumer Disputes Redressal Commission, Bardhaman at Muchipara in connection with consumer complaint case no. 208/2016 are hereby set aside.

18. The complaint case filed by the Respondent/Complainant, Tabrej Khan alias Md. Tabrej Khan is dismissed being barred by the law of limitation.

19. Let copy of this judgment be transmitted to the concerned District Commission forthwith for information and taking necessary action.

20. Let copy of this judgment be handed over or sent to the concerned parties to the appeal for information.

21. Registry is directed to do the needful.

22. Thus, the Appeal stands disposed of.

23. Note accordingly.