ADV. RAVI SUSHA, MEMBER.
The complainant purchased a brand new Mahindra Marshell Deluxe [4 wheel Drive] Omni Van with Engine NO. DY57259 and chassis No. AAIBL 4 ACY 2F 11828. The vehicle was subsequently registered as K12 2J 4857. The vehicle was insured with the opp.party vide policy No.1996 valid from 6..7..2001 to 5.7.2012. The opp.party have estimated the value of the vehicle Rs.4,31,100 at the time of insuring the vehicle initially on 5.7.2000. By the said policy the opp.party is legally bound to indemnify the complainant for any losses occur during the policy period. The opp.party had accepted consideration from the complainant and hence the complainant is a consumer of the opp.party . On 1..6..2002 the vehicle met with an accident and the body shell of the vehicle was completely damaged apart from other damages. The face of accident was immediately intimated to the opp.party and the opp.party had deputed Mr. Muraleedharan Nair to asses the vehicle and he had submitted a report for repair of the damaged body shell. Since there was a difference of opinion among the officers of the opp.party, Mr. Natesan, a senior most and experienced surveyor was appointed. He also filed a report similar to the 1st report. M\s. TVS, Thiruvananthapuram is the authorized service centre for Mahindra and Mahindra vehicles and they after inspecting the vehicle, strongly advised that since the body shell is severally damaged the same cannot be repaired but it can only be replaced. The opp.party had admitted the fact of accident and their legal duty to get the same repaired under the insurance cover. The fact is well evidence from the letter send to the complainant by the opp.party on 26th July 2002. On getting the said letter, the complainants vide his letter dated 2..8..2002 informed the opp.party to start the repairing work at TVS Thiruvananthapuram. The complainant was under the bonafide and strong belief that the opp.party might have started the repairing work at TVS. Since nothing was heard for a long time from the opp.party, the complainant enquired with the opp.party but the opp.party give no definite answer to the queries of the complainant. The complainant vide his letter dated 10.1.2004 requested the opp.party to allow a qualified mechanic deputed to inspect the vehicle. Since there was no response from the side of the opp.party, the complainant send another letter on 2.6.2004 requesting them to allow to insect the vehicle. At this time also the opp.party did not care to respond. The complainant had made many personal visits and telephonic enquiries, but the opp.party was always evading from their legal duty to repair the vehicle or to giver due compensation to the complainant as per the policy. Having no other way out the complainant have sent a letter 3.7.2006 calling upon the opp.party to repair the vehicle otherwise the complainant will be constrained to initiate legal proceeding against the opp.party. The opp.party requested for some more time to process the claim of the complainant. Since nothing was heard the complainant enquired with the opp.party about the developments. The opp.party in turn requested the complainant to visit their office for talking about the chance of a settlement. Even though the complainant visited the office of the opp.party many times, the opp.party was not ready to settle the matter. At last on 10.12.2007, when the complainant visited the office of the opp.party, they informed the complaint that the concerned files of the complainant are missing and they are not in a position to process the claim of the complainant The opp.party is liable to refund the value of the vehicle along with interest and compensation. Hence filed this complaint.
The opp.party filed version contenting, that the complaint is not maintainable either in law or on facts. The complaint is barred by limitation as envisaged under Sec. 24 A of the Consumer Protection Act…., 1986. The claim of the complainant in the present complaint was closed by the opp.party as early on 20.1.2004 and thereafter no correspondence or any communication was made by this opp.party with the complainant in the subject matter in this complainant. It is therefore submitted that the complaint is hopelessly barred by limitation and the same is liable to be dismissed on that score itself. The allegation made in the complaint that, he had sent letters to this opp.party on 2..6..2004 and 3..7..2006 and the further allegation that, the opp.party had informed the complainant on 10..12.2007 that the concerned file of the complainant kept with the opp.party was missing and as such expressed the inability of the opp.party to process the claim of the complainant, are absolutely baseless and false and hence emphatically denied by the opp.party. The above averments advanced by the complainant are only cooked up stores conveniently made by the complainant are only cooked up stories conveniently made by the complainant to cover up the period of limitation for bringing the present complaint within the statutory period. The opp.party was finally closed the claim of the complainant on 20.01.2004 and no subsequent action of whatsoever in nature was taken in the claim of the complainant and no correspondence was made between the opp.party and the complainant thereafter. It is therefore submitted that this Hon’ble Forum may be pleased top consider the limitation as a preliminary issue in this complaint. This opp.party had issued a comprehensive policy to the complainant for his omni bus bearing Reg.No.KL-22J/4857 for a period from 6..7..2001 to 5..7..2002. The contract of insurance entered under the above insurance policy is subject to condition, clauses, warranties and terms and conditions of the policy, which is squarely binding to the contracting parties. The complainant had reported a claim with the opp.party on 3..6..2002 stating that the insured vehicle met with an accident on 1.6.2002 at 6.30 p.m. at a place called Ottakkal near Thenmala. The opp.party on receipt of the claim form and the estimate from the repairer M/s. TVS Thiruvananthapuram, submitted by the complainant on 7.6. 2002 had deputed a licensed Insurance surveyor and loss assessor Mr.M. Muraleedharan Nair for conducting survey and for assessment of the loss sustained to the insured vehicle, as per the policy conditions. The surveyor Mr. Muraleedharan Nair visited the Work Shop M/s. TVS Thiruvananthapuram on 7.6.2002 and on many subsequent days and had discussion with the supervisor of M/s. TVS regarding the assessment of loss sustained to the insured vehicle. E. The surveyor on his careful examination of the vehicle found that the damages sustained to the vehicle and the structural distortion caused to the shell assembly of the vehicle are quiet repairable by replacing the damaged panels. But during the course of inspection, the complainant as well as the repairer are not agreeing for repair of the body shell and demanded replacement of the body shell assembly. Though the damages sustained to the body shell assembly can be repaired perfectly by replacing the damaged parts and by correcting the structural distortion caused to the body shell by pulling with chain block and Jackie., the repairer and the insured took an adamant stand with their illegal demand to replace the body shell. Due to the unreasonable demand made by the insured and the repairer, the surveyor informed the matter to the branch manager of this opp.party., City Branch, Thiruvananthapuram and the high officials of the opp.party at Thiruvanthapuram The opp.party thereafter appointed Mr. K.R. Natesan a licensed Senior most Surveyor and loss assessor to have a joint survey along with surveyor Mr. Muraleedharan Nair for the assessment of loss sustained to the insured vehicle. The surveyors Mr. K.R. Natesan and Mr. Mulaeedharan Nair jointly visited the repairers workshop on 25..6..2002 and 27..6..2002 and inspected the damages sustained to the vehicle in detail and have also had discussion with the representative of M/s. TVS workshop in order to conclude the assessment of the loss. The surveyor Mr.K.R. Natesan was also in a firm opinion that the damages sustained to the body shell of the vehicle is quier repairable by replacing the damaged parts and by correcting the distorted body shell. But the representative of the repairer was very particular in his demand for replacement of the shell assembly despite of various negotiations and efforts made by the surveyors to convince the repairer about his illegal demand. Since the repairer as well as the insured are not at all agreeing for a reasonable settlement, the surveyors proceed with their assessment of loss and submitted their independent reports before this opp.party.
The opp.party on the basis of the report submitted by the surveyors and loss assessors have and issued a work order dt. 15..7..2002 to the repairer under registered post showing the labour charges allowed and the spare parts recommended for replacement for carrying out the repair works of the vehicle. The repairer after receipt of the above work order had sent a reply letter dt. 22..7..2002 to this opp.party conforming their earlier stand to repair the vehicle by replacing the body shell instead of repair the body shell as per the work order issued by this opp.party. Due to the above illegal demand and adamant stand taken by the repairer the opp.party sent a registered letter dt.. 26..7..2002 to the complainant, with a request to shift the damaged vehicle to anyone of the other competent and reputed workshops at Thiruvananthapuram for carrying out the repair works as per the work order issued by this opp.party. The complainant thereafter sent a reply dt. 2..8..2002 to the above letter issued by this opp.party under registered post informing his decision to carry out the repair works with the repairer M/s. TVS , Thiruvananthapuram itself. The opp.party against sent a registered letter dt. 13..8..2002 to the complainant expressing the inability of the opp.party to over rule the assessment made by the surveyors and loss assessors as per the terms and conditions of the policy and further informed the complainant that, the opp.party shall not be liable for any repair or replacement cared out by the complainant ignoring the surveyors assessment. Though the opp.party made various efforts to settle the claim in an amicable manner, the complainant did not co-operate for the same and all the efforts made by the opp.party in this regard did not materialized due to the indifferent attitude on the part of the complainant. So the opp.party constrained to sent a final letter dt. 5..1..2004 under registered post to the complainant, informing the decision of the opp.party top close the claim without further notice from the date of receipt of the above letter. The complainant deliberately unclaimed the above registered letter even though proper intimation was given to him by the postal authorities and as such the above registered letter sent by the opp.party was returned by the postal authorities showing proper endorsements. The claim of the complainant was finally closed by this opp.party as early on 20..1..2004 due to the illegal demand and indifferent attitude on the part of the complainant alone, for which the opp.party is not liable and responsible at all. There is no deficiency in the stand taken by this opp.party in closing the claim by giving sufficient notice to the complainant. Hence prays to dismiss the complaint.
Points that would arise for consideration are:
1. Whether the complaint is barred by limitation or not?
2. Whether there is any deficiency in service on the part of the opp.party
3. Reliefs and costs.
For the complainant PWs 1 to 3 were examined and marked Exts. P1 to P9
For the opp.party DW.1 was examined and marked Exts. D1 to D6}
POINTS 1
The first point to be decided is whether the complaint is barred by Limitation or not?
The learned counsel for the opp.party argued that this case is barred by Limitation. According to the opp.party in continuation to the previous correspondents the opp.party sent a final registered letter to the complainant on 5..1..2004 intimating the complainant about the decision to close the claim. The DW.2 the Manager of the opp.party also stated that the opp.party was not aware of any correspondence alleged to have made by the opp.party after closing the file on 20..1..2004 and the complainant never made any communication with the opp.party after closing the file as per Ext. D5 letter. On perusal of Ext. D5 it can be seen that the opp.party made it clear that if the complainant failed to sent a reply within 10 days from the date of the said letter, the opp.party constrained to close the claim without further notice. Ext. D6 shows that the Ext. D5 letter was unclaimed by thbe complainant. The complainant admit that there was no change in his address. PW.1has deposed that :”claim Dm-Ip-t¼mgpw Ct¸mgpw Htc ta hnem-k-¯n BWtÃm \n§Ä Xma-kn-¡p-¶Xp [Q] AsX[A]. As per presumption the refusal in accepting the registered letter issued by the opp.party amount to acceptance of Ext. D5 letter. So the cause of action of the present complaint arose on 21..1..2004. But the complainant preferred the present complaint only on 19..3..2008 ie. After 4 years. So the complainant is hopelessly barred under Section 24 A of the Consumer Protection Act 1986. The latches on the part of the complaint for not filing the complaint within the stipulated period under the act has not been explained by the complainant. According to the complainant he continued to make the alleged representations with the opp.party subsequent to closing of the claim on 20..1..2004. Opp.party’s counsel argued that alleged representations cannot be considered to be a sufficient cause to condone the delay in filing the complaint. The complainant in his deposition admitted that he has not given any explanation for the delay in condoning the Limitation in filing the complaint. Considering Ext.D5 letter the complainant should have filed the complaint on or before 21..1.2006. The Learned counsel for the complainant argued that he had sent Ext.P4,P5 and Ext.P6 letter to the opp.party subseque4nt to closing of the claim. According to the complainant considering Ext. P4, P5 and P6 letters there is no limitation. That argument is opposed by the opp.party’s counsel. According to opp.party the complainant sent a letter to the opp.party on 2..8..2002 under registered post which has been marked as Ext.P3. More over a sending letters to the opp.party in ordinary post on 10..1..2004, 2..5..2004 and 3..7..2006 are absolutely baseless and cooked up stories. Ext. P4 to P6 are fabricated documents. Here the complainant could not convince the Forum that the alleged Ext.P4 to P6 letter were sent to the opp.party. The complainant could have sent Ext.P4 to P6 by registered post. The opp.party’s counsel produced three decision of Hon’ble National Commission ie. 2006 CPJ volume 3 page 414, 2009 CPJ volume 11 page 358, 2008 CPJ volume IV page 270 and argued that Ext. P4 to P6 are not at all sufficient to condone the delay in filing the complaint. In the above three decision the National Commission held that any amount of correspondence does not extent the period of Limitation from the date of cause of action. The complainant should have immediately approached the District Forum.
In the light of the above decisions the complaint is not maintainable before this Forum because the same is barred by limitation as per Section 24-A of CP Act 1986. Hence the complaint is liable to be dismissed. Since the first point is found against the complainant , the other points need not be answered.
In the result, the complaint is dismissed. No cost.
Dated this the 16th day of August, 2012.
I n d e x
List of witnesses for the complainant
PW.1. - A.K. Nainan
PW.2. – Keerthiraj
PW.3. Manoj
List of documents for the complainant
P1. – Policy certificate
P2. – Cxopy of letter dated 26..7..2002
P3. – Letter dated 2..8..2002
P4. – Letter dated 10..1..2004
P5. – Letter dated 2..6..2006
P6. – Letter dated 3..7..2006
P7. – R.C.Book
P8. – Certificate Registeration
P9. – Letter dated 7..11..2009
List of witnesses for the opp.party
DW.1. – M. Muraleedharan Nair
DW.2. – P.P. Krishna Moorthy
List of documents for the opp.party
D1. – Independent reports
P2. – Survey report
D3. – Work order copy
D4. – Letter dated26..7..2002
D5. – Letter dated 5..1..2004
D7. -Unclaimed article
