BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ,
KAMRUP
C.C.No-58/2015
Present: I) Shri A.F.A.Bora,M.Sc.,L.L.B.,A.J.S -President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc,Former Dy
Director, FCS & CA -Member
Sri Kanak Malakar -complainant
S/O-Late Cheniram Malakar
R/O- Vill & P.O- Hajo,
District-Kamrup,Assam
-VS-
1. The Branch Manager- -opp. parties
New India Assurance Co Ltd.
Padnava Complex, Maligaon Chariali,
Guwahati-12
2. The Manager,
New India Assurance Co Ltd.
New India Assurance Building,
87, Mahatma Gandhi Road Fort,
Mumbai-40001
3. The Branch Manager,
State Bank of India,Dadara Branch,
P.O- Dadara, Kamrup, Assam
Appearance:
Learned advocate Mr Noorjaman Ahmed for the complainant .
Learned advocate Ms Mamoni Choudhury for the opposite parties.
Date of argument:- 30/10/2018 and 06/12/2018 (written argument)
Date of judgment: - 10/02/2021
JUDGEMENT
1. The fact of the case briefly narrating is that the complainant-Sri Kanak Malakar took a loan from SBI,Dadara Branch & the required loan was Rs.2,00,000/- as per scheme & same was sanctioned with 9% interest per annum. Both the fishery and bund (embankment) was insured with New India Insurance Co Ltd, Maligaon Branch at the time of disbursing of loan by SBI Dadara Branch by deducting the insurance premium from the loan. The sum insured for the bund (embankment) was Rs.2,61,000/- and for fish was Rs.1,50,800/- and the premium were at the rate of 1% & 3.4% respectively with corresponding amount of Rs.2,610 & Rs.5,127/-. The total premium paid for renewal of the policy was Rs.8693/- and complainant was paying the premium for both the fish and bund insurance.
2. It is submitted in the complaint petition that in the month of July,2007 due to flood the bund was broken and fishes came out from the fishery causing loss to the complainant. The damaged was inspected by the lat mandal & gaon burah of Hajo Revenue Circle & panchayat authority and the claimed form provided by the opp. party was filled up with the help of Fishery Extension Officer but the claim of the complainant was rejected by the opp. party on the plea of repudiation of documents. The SBI dadara branch requested the insurance company to reopen the claim & thereafter a nominal amount has been paid on loss of fish but nothing has been paid for damage of bund.
3. According to the complainant the policy both for bund & fish were valid at the time of damaged sustained . The complainant therefore claimed that he is entitled for compensation for loss of fish as well as for the bund.
4. On filing the complaint a case was registered vide no-58 of 2015 on 28/07/2015 on payment of IPO of Rs.200/- and notices were directed to be issued fixing 06/10/15 for filing reply by the opp. party .Thereafter on 13/11/2015 opp. party appeared and took time for filing W/S. At the initial stage of filing the case none of the party including the forum have raised the issue of limitation . Both the parties submitted their respective evidence after filing written statement by opp. party no-1 & 2 wherein the opp. party no-1 & 2 specifically mentioned that the complaint petition is barred by limitation and not maintainable as cause of action arose on 10/04/2008 & complaint case was filed on 27/07/2015 without any petition for condonation of delay. Further the opp. party have contested the proceeding stating that the case is bad for suppression of material facts and denied the allegations made intoto. It is further mentioned by the opp. party that in the relevant time i.e. 2007 a surveyor was appointed and after due survey a compensation of Rs. 22, 550/- was paid to the complainant and denied any additional claim made by the complainant and as such it is contended that complaint petition is liable to be dismissed.
5. Having heard both the parties we have gone through the evidence adduced by the parties where CW-1 Sri Kanak Malakar categorically admitted that the repudiation letter was not exhibited and it is suggested that initially claim was rejected on the ground that documents furnished by the complainant was found tempered. it is also an admitted fact that as per PW-1 the insurance company provided Rs.22,550/- on the basis of assessment made by the investigator but claimant was not satisfied with that amount. It is also admitted that he had not submitted any document regarding his loss. The policy was valid from 29/06/2007 to 28/06/2008 as per document exhibited as Exb-1.
6. Our attention has been drawn to the fact that the flood took place in the year 2007 and the policy was valid upto 28/06/2008 and there is not a single explanation from the complainant for such an inordinate delay in filing the complaint petition. The evidence of the OPW-1 Krishna Ballav Sharma is about the fact that an amount of Rs.22,550/- has already been paid to the complainant as assessed by the surveyor.
7. The crust of the matter is the inordinate delay in filing the complaint by the claimant . In our present case opp. party took reliance of a case law New India Assurance Co Ltd VS Sri Venkata Padmavathi R & B Rice Mill and the proposition of law is that
“ In particular where there are no allegations before any forum that the agreement was vitiated by fraud or undue influence –National Consumer Dispute Redressal Commission erred in allowing respondent mills claim for an amount higher than the payment amount agreed between respondent and appellant insurance company”
The salient point raised by the opp. party is about limitation of filing complaint in the present case which is claimed to be barred by limitation under Sec-24(A) of CP Act,1986 which read as under:
i) The District Forum, State Commission or National Commission shall not admit a complaint unless it is filed within 2 years from the date on which the cause of action has arisen .
ii) Notwithstanding anything contain in subclause(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.
8. Provided that no such complaint shall be entertained unless the National Commission, State Commission or the District Forum , as the case may be records its reasons for condoning such delay .
9. In our present case in hand ,there is no specific order as to the condonation of delay from the forum itself or not a justified ground placed on record by the complainant for not filing claim petition within 2 years from the date of cause of action of the claim.
10. In our present proceedings evidence of the complainant is silent about the delay of lodging complaint before this forum within a period of 2 years . The admitted fact of the case is that cause of action arosed in the year 2008 and claim was disposed off by the opp. Party . As such, in such a case filing a complaint after 7 years without any condonation petition is found without merit and barred by limitations.
11. In the result we are of the opinion that claim petition is barred by limitation and accordingly it is found without merit and same is dismissed. Parties will bear their own cost.
Given our hand and seal of the commission on 10th day of February,2021.
Smt A.D.Lahkar Md J.Islam Shri A.F.A Bora
Member Member President
DCDRC,Kamrup DCDRC,Kamrup DCDRC,Kamrup
