PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
The Complainant Aries Pharmaceuticalsis engaged in pharmaceuticals activities at Mira Village, Near Dahisar Check Naka, Dist. Thane. To protect the plant, machineries including accessories, furniture, fixtures, fittings, stock and stock-in-process, etc., the Complainant obtained Floater Policy from the Opposite Party for the period 19/07/2001 to 18/07/2002, covering fire etc. The Complainant has produced copy of the aforesaid policy bearing No.111300/11/01/01052. Under the aforesaid policy sum assured given to the Complainant is Rs.1 Crore 2 Lacs.
2) It is the case of the Complainant that on 16/12/01 at about 4.30 a.m. a fire took place in the factory premises and thereby extensive damages were caused to the plant, machinery, accessories, furniture, fixture, fittings, stock and stock-in-process, etc. Initially, loss was estimated at about Rs.12 Lacs. On 17/12/01, the Complainant gave intimation of incidence of fire as damage caused due to the fire to the Opposite Party and requested to depute their representative to assess the loss. Thereafter, the Opposite Party deputed M/s. Mehta & Padamsey Pvt. Ltd. – the Surveyor to assess the loss. The Surveyor called certain documents from the Complainant and the Complainant by letter dtd.14/03/02 submitted required documents except Fire Brigade Report, as the same was not made available by the Municipal Corporation. On 09/04/02, the Complainant submitted Fire Brigade Report, Electrical equipment estimate, Bank sanction letter and Stock details as on 31/03/01.
3) It is submitted that after submission of aforesaid relevant documents the Complainant was in constant touch with the Surveyor. The said Surveyor had again visited plant in the month of April, 2002 and asked for documents again. In fact, the said documents were already furnished to the Surveyor. The Complainant had taken loan from Jankalyan Sahakari Bank Ltd.; whose instance the Complainant had taken aforesaid policy. The Complainant has submitted claim form for reimbursement of the loss. However, inspite of survey/additional survey done by M/s. Mehata Padamsey Pvt. Ltd., the Opposite Party did not release compensation amount claimed by the Complainant. So on 15/05/2003, the Complainant wrote letter to the Opposite Party and requested for early settlement. It is contended that more than 2 years period was lapsed in the said process. However, there was no response from the Opposite Party. Therefore, on 14/03/04, the Complainant wrote a letter and subsequently he wrote reminder letters but the Opposite Party has not taken any decision regarding the claim of the Complainant inspite of guidelines of the IRDA.
4) Opposite Party by their letter dtd.02/09/2004 informed the Complainant that the Complainant’s claim has been sanctioned only for Rs.7,19,553/-. Alongwith letter discharge voucher was enclosed. The Complainant was dissatisfied with the amount offered by the Opposite Party and declined to accept aforesaid amount.
5) It is submitted that there was no proper justification as to why Opposite Party offered only an amount of Rs.7,19,553/- when the Complainant had suffered loss of about 12 Lacs. It is submitted that as amount offered by the Opposite Party was much lower than the actual loss. The Complainant was personally in touch with the Opposite Party on various levels including Senior Divisional Manager and requested to reconsider the issue as well as to furnish the details of assessment including survey report. On each and every occasion Opposite Party gave evasive replies and sometimes assurance as to they would look into the matter, but in fact, the Opposite Party have not considered request of the Complainant. The Complainant ultimately approached Grievance Cell of the Opposite Party as well as Chairman of the Opposite Party but there was no response from the Grievance Cell and it amounts to willful negligence and deficiency in service on the part of Opposite Party.
6) Ultimately, the Complainant on 02/07/2008 wrote a letter to Opposite Party accompanied with discharge voucher duly singed agreeing with only Rs.7,19,553/- under protest and requested to release amount with liberty to ventilate his grievances before Legal Forum. However, there was no reply from the Opposite Party. Therefore, the Complainant has filed this complaint. The Complainant has requested to condone the delay of 2 years, 4 months and 10 days caused in filing of this complaint and admit the complaint and decide it on merit. He has requested to direct Opposite Parties to pay to the Complainant Rs.12 Lacs against reimbursement of the claim of the Complainant alongwith interest @ 12% p.a. till realization. The Complainant has claimed Rs.2 Lacs as compensation towards harassment, mental agony. Further he has requested that pending disposal of this complaint, the Opposite Party be directed to release the sanctioned amount of Rs.7,19,553/- with interest @ 12% p.a. from 02/09/2004.
7) Alongwith complainant the Complainant has filed separate application for condonation of delay and affidavit in support of the delay condonation application and another application for interim relief under Sec.13(3B) of the Consumer Protection Act, 1986, to direct Opposite Party to pay to the Complainant sanctioned amount of Rs.7,19,553/- with interest @ 12 % p.a. from 02/09/04. Ld.Advocate for the Complainant has suggested to consider the application for interim relief under Sec.13(3b) of the Consumer Protection Act, 1986 alongwith main complaint and accordingly, passed endorsement to that effect below aforesaid application for interim relief. Accordingly, application for interim relief was kept for hearing alongwith original complaint.
8) The Complainant alongwith complaint filed documents as per list of document. Notice of delay condonation application was issued to the Opposite Party.
9) Opposite Party has filed written statement and thereby resisted claim of the Complainant contending interalia that allegations made in the complaint are false. It is alleged that the Complainant has deliberately suppressed the material facts and made misleading statements, therefore, complaint is liable to be dismissed. It is further contended that there is no deficiency in service or unfair trade practice on the part of Opposite Party and the Complainant is not a ‘Consumer’ as defined under Sec.2(1)(d) of the Consumer Protection Act, 1986, and therefore, complaint is liable to be dismissed.
10) Opposite Party has admitted that the Complainant M/s. Aries Pharmaceuticals is engaged in business of pharmaceuticals. Further, it is stated that Opposite Party had issued to the Complainant a Floater Policy covering fire, etc. bearing Policy No. 111300/11/01/01052. As per the terms and conditions stated in the policy are binding on the Complainant. Policy was valid the period from 19/07/2001 to 18/07/2002. It is also admitted that on 16/12/2001 at about 4.30 a.m. fire took place in the factory premises of the Complainant. The Complainant had given intimation of incident of fire to the Opposite Party on 17/12/2001 and informed about the damaged caused to his stock lying in the factory premises. However, Opposite Party denied allegations that the Complainant has suffered loss of about Rs.12 Lacs.
11) Opposite Party has submitted that after receipt of intimation of incident of fire Opposite Party had appointed M/s. Mehta & Padamsey Pvt. Ltd. as a Surveyor. According to the Opposite Party, the Complainant had submitted some documents to the surveyor but not all required documents as demanded by the Surveyor. It is admitted that on 09/04/2002, the Complainant submitted Fire Brigade Report, Bank Sanctioned Letter, etc. & Statement of Closing Stock as on 31/03/2001 to the Surveyor on 23/04/2002.
12) It is admitted that on 15/03/2003, the Complainant wrote a letter to Opposite Party to settle his claim but Opposite Party was unable to settle the claim as the Complainant has failed to submit all the required documents as demanded by their surveyor.
13) Opposite Party has admitted the fact that the Complainant was informed by letter dtd.02/09/04 that Complainant’s claim is sanctioned for Rs.7,19,553/-. It is contended that loss was assessed as per terms and conditions of the policy. It is admitted that the Complainant has filed a complaint before the Grievance Cell of the Opposite Party on 13/07/2008, but claim was time barred.
14) According to the Opposite Party, the complaint is time barred, so liable to be dismissed with cost. Opposite Party has filed affidavit of Mr. Arvind Shenoy/Senior Divisional Manager, in support of the contents of the written statement.
15) The Complainant has filed affidavit-in-rejoinder and thereby denied allegations made in the written statement of the Opposite Party. The Complainant has filed written notes of argument. Opposite Party has also filed written argument.
16) Heard Ld.Advocate Mr. Ganesh Shirke for the Complainant and Ld.Advocate Mrs. Kalpana Trivedi for the Opposite Party.
17) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the complaint is barred by law of limitation ?
Findings : Yes.
Point No.2 : Whether the Complainant is entitled interim relief & other reliefs claimed in the complaint from Opposite Party as
prayed for ?
Findings : No
Reasons :-
Point No.1 :- Following facts are admitted facts that the Complainant Aries Pharmaceuticalsis engaged in pharmaceuticals activities and the Complainant’s factory premises situated at Mira Village, Near Dahisar Check Naka, Dist. Thane. The Complainant had taken Floater Policy bearing No.111300/11/01/01052 from the Opposite Party. The Complainant has produced copy of the said policy alongwith complaint. The aforesaid Floater Policy was period from 19/07/2001 to 18/07/2002 and the said policy insurance cover was given to the plant, machineries including accessories, furniture, fixtures, fittings, stock and stock-in-process, etc. The total sum assured is Rs.1 Crore 2 Lacs. Opposite Party has admitted the aforesaid fact and submitted that aforesaid policy has covered damaged by fire, etc. It is undisputed fact that on 16/12/01 at about 4.30 a.m. a fire took place in the factory premises of the Complainant and thereby extensive damages were caused.
As per the Complainant, on 16/12/2001 due to the fire plant, machinery, accessories, furniture, fixture, fittings, stock and stock-in-process, etc. was burnt in fire and the Complainant suffered loss of about Rs.12 Lacs. The Opposite Party has denied the Complainant’s allegations that Complainant suffered loss of Rs.12 Lacs. It is admitted fact that by letter dtd.17/12/01, the Complainant had given intimation of fire and damage caused in the factory premises to the Opposite Party. Then Opposite Party had appointed M/s. Mehata Padamsey Pvt. Ltd., as a Surveyor to asses the loss. It appears from the evidence that from time to time the Complainant submitted most of the documents as called by the Surveyor and by letter dtd.15/03/2003 he had requested the Opposite Party to settle the claim. Thereafter, he wrote a letter dtd.01/07/04, requesting Opposite Party to settle the claim. According to the Opposite Party, as the Complainant failed to submit all the necessary documents required by their Surveyor, the Opposite Party was not in a position to take decision regarding claim of the Complainant. It is admitted fact that Opposite Party vide their letter dtd.02/09/04, informed the Complainant that Complainant’s claim is sanctioned for Rs.7,19,553/-. Alongwith letter dtd.02/09/2004, allowing partial claim of the Complainant to the extent of Rs.7,19,553/- Opposite Party had sent discharge voucher to the Complainant. However, the Complainant was not satisfied with the amount offered by the Opposite Party. So, by letter dtd.07/10/04, the Complainant declined to accept the offer.
It is submitted on behalf of Complainant that even though the Complainant had suffered loss at about Rs.12 Lacs, Opposite Party sanctioned only Rs.7,19,553/- and the aforesaid decision of the Opposite Party was not in accordance with the terms and conditions of the policy. The Complainant had suffered actual loss of about Rs.12 Lacs. Opposite Party had unreasonably shown deduction and sanctioned claim of only Rs.7,19,553/- contending that claim is sanctioned as per Surveyor’s Report. However, Surveyor’s report was not furnished to the Complainant inspite of Complainant demand allegedly on the ground that Surveyor’s report is a confidential document. It is submitted that the Complainant personally met various authorities of the Opposite Parties and requested to reconsider their decision. However, Opposite Party did not pay any heed to the Complainant’s request. Therefore, the Complainant made complaint to the Grievance Cell of the Opposite Party. Grievance Cell of the Opposite Party did not consider request of the Complainant and therefore, Complainant has filed this complaint before this Forum. In the aforesaid process, delay of 2 years, 4 months and 10 days is caused. Ld.Advocate for the Complainant has requested to kindly condone the delay and decide the complaint on merits. According to the Ld.Advocate, after partial repudiation of claim, the Proprietor of the Complainant personally visited officers of the Opposite Party and the officers orally gave assurance that they will look into the matter, but in fact, Opposite Party has not reconsidered their earlier decision and in that procedure lot of time was waste and as such delay is caused in filing of complaint. In support of his contention, Ld.Advocate has relied upon decision of the Hon’ble Supreme Court, in the matter of Oriental Insurance Co. Ltd. V/s. Prem Printing Press, reported in 2009 CTJ 240 (Supreme Court)(CP). In the aforesaid case the Hon’ble Supreme Court has observed that –
“After the first repudiation of the claim when the Respondent again approached the Appellant, the Respondent given a hope that the matter was being considered afresh – Final decision conveyed to it only on 28/07/1994 – Respondent made its complaint on 06/08/1999 – Complaint so made held to be very much within three months of 28/07/1994 – National Commission’s order not interfered with nor the question of Section 28 of the Contract Act gone into – Appeal dismissed.”
Facts of the present case are different than the facts stated in the aforecited decision of the Hon’ble Supreme Court. In the instant case absolutely there is no evidence to prove that Opposite Party had given hope to the Complainant that the matter was being considered/afresh. There is nothing on record to show that the Opposite Party at any time assured the Complainant that they will reconsider their decision. On the contrary, it is grievance of the Complainant from time to time he approached various authorities of the Opposite Party and Grievance Cell of the Opposite Party but nobody give any response. Therefore, aforecited decision is not applicable to the present case.
Ld.Advocate for the Opposite Party has submitted that as per the provisions of Sec.24(A) of the Consumer Protection Act, 1986, the Complainant was required to file complaint within 2 years from date of cause of action. The Complainant had filed complaint under Floater Policy for the damages caused due to the fire which took place in the Complainant’s premises on 16/12/2001. According to the Ld.Advocate for the Opposite Party, cause of action for this complaint took place on the date of fire i.e. 16/12/2001. In support of contention, Ld.Advocate for the Opposite Party has relied upon the decision of the Hon’ble Supreme Court, reported in the matter in Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd. & Anr. In the aforesaid decision the Hon’ble Supreme Court has observed that –
“The term “cause of action” is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different context, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as “bundle of facts”, which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, “cause of action” means the cause of action for which the suit is brought. “Cause of action” is cause of action which gives occasion for and forms the foundation of the suit. [See; Sidramappa vs. Rajashetty and ors, (1970) l SSC 186]. In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out.”
Further, it is pointed out by the Ld.Advocate for the Opposite Party that the Complainant has admitted the fact that by letter dtd.02/09/2004 Opposite Party partly allowed Complainant’s claim upto Rs.7,19,553/-. According to the Complainant, he was dissatisfied with the amount offered by the Opposite Party. So by letter dtd.07/10/2004, he informed his dissatisfaction & declined to accept the offer. According to the Ld.Advocate for the Opposite Party, even from the date of repudiation i.e. from 02/09/2004, complaint is not filed within period of 2 years. Reason assigned by the Complainant for condonation of delay is that after rejection of partial claim the Complainant made correspondence with the Opposite Party and personally visited the officers of Opposite Party and tried to convince them to reconsider earlier decision of rejection of partial claim. It is submitted that at any time none of the officers of Opposite Party had assured the Complainant that they will reconsider their earlier decision nor it was informed Complainant’s mater is under consideration. It is vehemently submitted that after rejection of partial claim, further correspondence to consider earlier decision will not extent period of limitation. Reasons assigned by the Complainant is not genuine and sufficient to condone the inordinate delay caused in filing of this complaint and therefore, application for condonation of delay deserves to be dismissed and the complaint is also liable to be dismissed as hopelessly barred by law of limitation.
It is admitted fact that on 16/12/2001, at about 4.30 a.m. fire took place in the Complainant’s premises and due to the fire damage was caused to the plant, machinery, furniture, fixture, fittings, stock and stock in process, etc. Thereafter the Complainant filed claim for reimbursement of the loss under the Floater Policy obtained from the Opposite Party. As mentioned above, the Hon’ble Supreme Court in Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd. & Anr. has held that “in the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out.”Therefore, from the date of cause of action i.e. from 16/12/2001, the Complainant ought to have filed complaint before this Forum on or about 15/12/2001. However, the Complainant has filed this complaint before this Forum on 17/03/2009 i.e. after laps of period of more than 5 years and 8 months after period of expiry of period of limitation. The Complainant’s claim was partially rejected by the op by their letter dtd.02/09/2004. Even from that date the Complainant has not filed this complaint within period of 2 years. In ordinate delay is caused in filing of this complaint. Reasons assigned for condonation of the inordinate delay is that after partial rejection of the claim, the Complainant tried to convince Opposite Party to reconsider their earlier decision of rejection of part of the claim. It is well settled that any correspondence made after repudiation of claim will not extend period limitation unless there is assurance by the Opposite Party regarding reconsideration of the claim. In the instant case absolutely there is nothing on record to show that at any time Opposite Party had given assurance for reconsideration of their earlier decision dtd.02/09/2004 of rejection of part of the Complainant’s claim. Therefore, the Complainant’s application for condonation of delay is rejected. Complaint his hopelessly time barred. Hence, we answer point no.1 in the negative.
Point No.2 :- As discussed above the complaint is not filed within stipulated period of limitation. The Complainant has not assigned any satisfactory reason to condone the inordinate delay caused in filing of this complaint. Therefore, the Complainant’s application for condonation of delay is rejected. Complaint is hopelessly time barred. Therefore, the Complainant is not entitled for interim relief as well as other relief prayed in the complaint. Hence, we answer point no.2 in the negative.
For the reasons discussed above, compliant is barred by law of limitation therefore, deserves to be dismissed. Hence, we pass following order -
O R D E R
i.Complaint No.95/2009 is hereby dismissed
ii.No order as to cost.
iii.Certified copies of this order be furnished to the parties.
