DATE OF FILING- 23.12.2009
DATE OF DISPOSAL-28.02.2014
O R D E R
Dr. N.Tuna Sahu, Member
1. The complainant filed this complain petition under Section 12 of Consumer Protection Act, 1986 alleging deficiency in insurance service on the part of the Opposite Parties.(in short O.Ps.)
2. The brief fact of the complainant’s case is that his brother late Rabindranath Das who met with a fatal accident on 15.7.2003 was a policy holder under Nagarika Surakshya Policy bearing No.345401/45/2003/711 under the above O.Ps. As per his complaint, he is the legal heir of his deceased brother who has already submitted all the documents in support of his claim before the O.Ps for the last 5 years and has put his grievance before Manager, Aska Branch both orally and in writing but all in vain. He has also sent a registered notice to the Branch Manager, Oriental Insurance Company, Aska Branch on 14.08.2008 though his advocate but received no reply. He again sent a reminder notices to the respective Managers of Aska Branch, Divisional Branch and Regional Branch on 26.11.2008 but also received no reply. Hence, the complainant prayed before this Forum to direct the O.Ps to settle his claim and to give the sum assured with interest from the date of his claim in the interest of justice.
3. Notice issued against the O.Ps and the O.Ps appeared before this Forum on 20.02.2010 though their learned advocate and filed their version on 26.9.2012. The O.Ps in their written version stated that the averments made in the complaint are not all true and those are not specifically admitted herein are deemed to have been denied and the complainant is put to strict proof of the same. The complainant is not maintainable in law in its present form against the O.Ps and liable to be dismissed. It is also stated that the complainant has not furnished the relevant papers i.e. legal heir certificate as well as other relevant documents in support of his claim in spite of repeated reminders and mere issue of a registered advocate notices on 14.08.2008 and 26.11.2008 by resorting to all sort of false and flimsy grounds does not create any cause of action to file a complainant against the O.Ps under the Consumer Protection Act, 1986. The O.Ps also pointed out that the complainant slept over the matter since 2003 and after long lapse of about 5 years issued an advocate notice in the year 2008 and filed the present complaint in 2009, which is miserably barred by limitation hence not maintainable. The complainant has not approached the O.Ps with clean hand and has played fraud and has deliberately suppressed the material evidence and has concealed truth for the purpose of his claim. There is no deficiency in service at any point of time on part of O.Ps and the complainant has not added bank as necessary party and for that the present dispute suffered from wrong joinder of necessary parties, hence not maintainable and it is prayed before the Hon’ble Forum to dismiss the complaint and pass suitable order with a direction to pay cost and damages to the O.Ps for vexatious litigation.
4. On the date of hearing of the consumer dispute, we heard the matter from the learned counsel for the complainant as well as from O.Ps. We have also gone through the complain petition of the complainant, memo of arguments of both parties and also verified the documents placed in the case record. During the course of hearing of the case, the learned advocate for the complainant argued that the present complainant is the brother of deceased policy holder Rabindranath Das. The deceased policy holder, under Nagarika Surakshya Policy bearing No.345401/45/2003/711 had insured his life under Oriental Insurance Company. While the policy was in force, unfortunately due to accident, the brother of the complainant died on 15.7.2003. Accordingly, the complainant submitted all the relevant documents before the concerned authority of Oriental Insurance Company regarding the claim but no action has been taken by the authorities for disbursement of the death benefit claim. The complainant along with his mother is the only legal heir of the deceased, so the Forum may please direct the O.Ps to pay the accident benefit of the deceased insured to the present complainant in the best interest of justice.
In reply to the above arguments of the learned advocate for the complainant, the learned counsel for the O.Ps contended that the death of the insured occurred on 15.07.2003 and the complainant issued the advocate’s notice in the year 2008 after long lapse of 5 years which is hopelessly barred by limitation. A cause of action against the O.Ps would arise when a claim is lodged after which either no decision is given or delayed decision is given or a claim is wholly or partially repudiated. When no such claim is lodged before this O.Ps there is no occasion arose before it to render any service. Hence, the complainant is not backed by any legitimate cause of action. The present complaint is filed in the year 2009 which is barred by limitation and in support of his argument he also cited a number of decisions in support of his arguments referring decisions reported in 2008(III) CPJ 174 (NC) in the case of V.K. Varma Vs. Vikrama Kumar and 2007(III) CPJ 429 (Haryana) in the case of New India Assurance Co. Ltd vs. Pawan Sarma where it was held if a consumer complaint is barred by limitation, it can’t be entertained as per Section 24A of Consumer Protection Act, 1986 in view of limitation period is over. Hence, he prayed to dismiss the case in the best interest of justice.
5. We perused the above pleadings of both parties and verified the case record and other documents placed on it. On perusal of the case record and before going to the merit of the case, it has come to our notice that the brother of the complainant i.e. deceased Rabindranath Das died due to a fatal accident on 15.7.2003. The complainant issued the advocate notice against the O.Ps on 14.8.2008 and subsequently on 26.11.2008 and filed this present consumer complaint on 23.12.2009. It is also found that the complainant though filed the photocopy of death certificate of the deceased policy holder but neither filed the Bank Pass Book nor filed the copy of Nagarika Surakshya Policy bearing No.345401/45/2003/711 which is stated to be issued by the oriental Insurance Company. It is also argued by the O.Ps that the bank is also not made a party to the present case which is a necessary party. At this point, we would like point out that the complainant remained silent up to 14.8.2008 and all of sudden issued a legal notice against the Opposite Parties to avoid limitation of case. In our considered opinion, the case is barred by limitation since the policy holder died on 15.7.2003 as per the death certificate issued by the competent authority and this case filed on 23.12.2009 and the case was filed on the strength of legal notice. However, the legal notice can’t extend the limitation period and by issuing a legal notice new cause of action can’t be started. Thus, the case is hopelessly barred by limitation as per Section 24A of Consumer Protection Act, 1986. From the case record, it also found that there is no petition filed by the complainant for condonation of delay and there is also no convincing explanation for condonation of delay. In the present case, as there is a delay of more than 5 years, in our considered opinion, unless there is a conveniencing explanation about the delay in filing the case, the same can’t be condoned. Hence, the case is barred by limitation and it is liable to be dismissed as per Section 24-A of the Consumer Protection Act, 1986. Our finding is also fortified with the decision of the Hon’ble National Commission reported in 2013 (3) CPR 300 in the case of Canadian Institute for International Studies and Anr. Vs. Ekta Sharma where the Hon’ble Commission has held that “ unless there is a conveniencing explanation about delay in filing the case, the same could not be condoned”. In the instant case, the complainant even not filed a delay condonation petition to condone his delay in filing this present case. Similar views also taken by the Hon’ble Supreme Court in the following cases:
- Post Master General and Ors. Vs. Living Media India Ltd. & Anr reported in 2012 (3) SCC 563
- Ansul Aggarwal Vs. New Okhala Industrial development Authority reported in 2012 (2)
- Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation, reported in 2010 (5) SCC 459.
- R.B. Ram Lingam Vs. R.B. Bhubaneswari reported in 2009 (2) Scale 108.
In view of the aforesaid discussions and decisions of the Hon’ble Supreme Court of India, the present delay of the complainant can’t be condoned on account inordinate delay and failure to file application for condonation of same. Hence, there is only option left with this Forum to dismiss the complaint of the complainant under Section 24(A) of the Consumer Protection Act, 1986, which is hopelessly barred by limitation.
6. In the result, the case of the complainant is dismissed due to devoid of any merit but there is no order as to cost. The case is disposed of accordingly.
7. The order is dictated and corrected by me on this 28th day of February 2014. Copy of the order shall be supplied to parties free of cost as per rule.
(Dr. N. Tuna Sahu)
Member
I Agree (Miss S.L. Pattnaik)
President
I Agree (Mrs. Minati Pradhan)
Lady Member
