Per: Hon’ble President Vijay Chandralal Premchandani

This complaint is filed by the consumer against the Insurance Company for deficiency in service under section 12 of the Consumer Protection Act, 1986.

 The brief facts of the complaint are as follows.

1] It is the case of the complainant that, complainant is a registered company under the Companies Act, 1956 having head office at Mumbai and work office at Ranjangaon, Village – Karegaon, Tal. – Shirur, Dist. – Pune. The complainant had undertaken the work of Pepsico India Holdings Pvt. Ltd., of potato’s loading, unloading and other work from the premises of the factory, which is situated at Plot No. C-5, MIDC, Ranjangaon, Tal. – Shirur, Dist. – Pune. The opponent Insurance Company has insured 40 workers/employees of the complainant company under the policy for the period 06/04/2009 to 05/04/2010. The complainant had paid premium of Rs.63,175/-. The Insurance Company undertakes to pay compensation to the workers/employees, if any injury or death caused to the worker or employee while discharging their duty on the work place or during the course of employment.

2] On 16/01/2010 a fatal accident occurred in the premises of Pepsico India Holdings Pvt. Ltd. On that day one Sushilkumar Prajapati was working in second shift from 3.00 p.m. to 11.00 p.m., who was assigned a crate wise sampling work in potato cold storage No. 3 area. He was required to locate the particular crates as per shift given to him, in the cold storage. These potato crates are required for a particular quality product and to inform the forklift operator of cold storage section accordingly. This forklift operator takes it to next 4 (CC/2012/149) shade to handover it to another forklift operator of dumping section. At 9.50 p.m. one Mr. Balu Mapari, who was forklift operator, after finishing his meals saw that one worker is lying below the dumper machine no. 21, who had sustained injuries on his face. Skull and his face were covered with blood. The ambulance was called and he was shifted to the hospital at Shirur. He succumbed to the injuries and died during the course of employment at work place. The deceased Sushilkumar Prajapati was a contract worker of the complainant company.

3] The complainant had informed this incident to the Head office and called upon the opponent to fulfill the contractual liability by paying compensation to the dependent of the deceased Sushilkumar Prajapati as per the terms and conditions of the policy. However, the opponent no. 2 purposely delaying in performing the liability.  Hence, complainant deposited compensation of Rs. 4,07,700/- before the 5 (CC/2012/149) Workmen’s Compensation Commissioner, Pune on 01/02/2011 to avoid penalty and further complications. The Disputant Company filled the dispute before the Additional Pune District  consumer Disputes, Redresal Forum, Pune on 14^th February 2012. Therefore, on the point of jurisdiction the dispute was returned through vide letter dated 3/3/2012.This Forum is having territorial jurisdiction as the Insurance company is situated at Ahmednager. Hence this complaint. The Complainant Prayed that Opponent may please be directed to pay the compensation amount to the Disputant Company of Rs. 4,07,700/- with 18% Interest and directed to pay Rs.35000/- for breach of contractual liability and deficiency in service and mental torture to the Complainant.

4] The present complaint is admitted after hearing first Arguments and issued Notice to opponent under section 12 of Consumer Protection Act.1986. Opponent appeared and filed their reply below Exh-13. It is flatly denied by the opponents that they have caused deficiency in service. According to the opponents, the complainant is not a ‘consumer’. The complaint is time barred as per section 24(A) of the Consumer Protection Act, 1986. All the allegation made by complainant in complaint against Opponent is denied by opponent. It is further submitted by the opponent that on the basis of documents submitted it was evident that the FIR was lodged by one Mr. Rites Kuntilal Dugad to Shirur Police station immediately after the accident on 16/1/2010. It appears that deceased Sushilkumar Prajapati was infact a labour engaged with Pepsico India through labour contractor M/s. Om Enterprises,. There eas absolutely no reference anywhere in the police investigation that the deceased was a labour   employed by the complainant. In view of specific contention in the FIR regarding employment of the deceased with M/s. Om Enterprises, who as not the insured of this opponent, the claim was not entertain able by accepting that the deceased was the person in the employment of the complainant. It is further contended that before depositing compensation amount with WC. Court Pune. The complainant had neither informed to this opponent not took its approval to the deposit the amount. It is further contended that as compensation amount as voluntarily deposited by the insured for payment to L.Rs. of deceased Sushilkumar W.C. Court has not enquired about legality of the claim and simply disbursed the amount deposited to the L.R.’s of the Deceased. Entire Evidence created by the complainant subsequently showing that infect the deceased was their employee, is in fact after thought and they got prepared false evidence. As liability under W.C. police is a contractual policy, a claim which is based on fraud, was not payable. As the insured complainant had deposited compensation amount in W.C. court a their won risk without approval of this opponent. This opponent was and is not liable to reimburse the amount. The opponent had rightly repudiated claim. There is not at all a case of any deficiency in service or unfair trade practice on the part of this opponent. Hence opponent prayed to this forum to dismiss the complaint with compensatory costs.

 5] Considering the pleadings and after scrutinizing the documentary evidence, which is produced before this Forum and hearing the arguments of both the counsels, following points arise for the determination of the Forum. The points, findings and the reasons thereon are as follows-

REASONS:

Point No.1

6] The Complainant Company got insured their 40 workers/employees with opponent Company under the policy for the period 06/04/2009 to 05/04/2010. The complainant company had paid premium of Rs.63,175/-. For same to the Opponent company the same not disputed by the opponent. Hence the Complaint Company is Consumer of Opponent Company within the meaning of section 2(1) d of The Consumer Protection Act. 1986. Hence we hold Finding  No.1  is Affirmative.

Point No.2

7] The Present Complaint is filed by the complainant company though it’s Works Manager Shri. Sanjay Bhandare. As per Authority letter  Shri. Anand Gupta , Managing Director of Complainant Company authorized Mr. Sanjay Bhandare Works Manager to act on behalf of company for the purpose of Appoint Advocate for court case, Attaining Court Case, Submission of legal Documents, Providing Evidence.  However we did not find any authorization to Mr. Sanjay Bhandare Works Manager to  sign or file present consumer Complaint. It is further noticed that Hon’ble Pune District Consumer Disputes Redressal Forum at Pune in C.C/2012/149 Passed an order “The complaint is returned to the complainant for presenting the same before proper Forum.” However the Complaint is not filed the same complaint before this forum. Present complaint is newly drafted and presented. The complaint is obtained the certified copy of Order as on 03/03/2015 and present complaint is filed as on 28/09/2015. There is no explanation on part of Complainant why the original complaint is not filed which is returned to the complaint by Pune District Consumer Forum as per vide order passed in C.C/2012/149. The Complaint is failed to prove when the cause of action arose on 15/06/2011 then how this fresh complaint filed before this forum is within limitation as per section 24 A of Consumer Protection Act 1986. The complainant company did not filed any delay application. Hence it is proved that the present complaint is barred by limitation. Therefore we hold the finding No.2 in affirmative.

In such circumstances the issue as regards merits of the case cannot be discussed or considered by this Forum. In the result this Forum answers the points accordingly and pass the following order.

                                                            ** O R D E R **

1. The complaint is dismissed for want of limitation.
2.  In the peculiar circumstances, there is no order as to the costs.
3.  Copies of this order   are furnished to the parties free of cost.
4.  Parties are directed to collect the sets, which were provided for Members within one month from the date of order, otherwise those will be destroyed.

Place : Ahmednagar. 

Note:- As the pleadings, affidavit, documents, written notes of arguments are in English, the order in the proceeding is passed for the better knowledge of the parties in English.