Complainant by filing this complainant has submitted that complainant’s company took a Miscellaneous (Burglary) Policy bearing Policy No.512800/46/05/04/00000452 from the op for covering the risks of various articles situated at the factory premises and the sum insured of the Burglary policy was for Rs.6,56,000/- and the policy was in operation from 31.03.2006 to mid night of 30.03.2007 and the said policy covers risk of the articles Viz. furnitures, fixtures, machines, stocks, raw materials, finished goods, goods held in trust, coins/currency notes etc.

          During validity of the said policy of 30.08.2006 a theft/burglary in the factory of the complainant situated at Methopara, Doltala, P.O.-Ganganagar, Kolkata-700132 was committed which was intimated by the workers of the factory to the Managing Director immediately who rushed to the said factory observed the situation made a complaint to the officer-in-charge police station-Barasat and Barasat Police Station on the basis of the said complaint started a case u/s 461/379 of the Indian Penal Code against the unknown miscreants.

          Thereafter complainant immediately reported the matter to the op on 30.08.2006 regarding loss of assets by theft/burglary and complainant requested the op to arrange for survey at an early date to assess the actual loss and settled the claim.  Thereafter op deputed one surveyor and loss assessor Mr. Kalyan Chakraborty who visited the factory premises and held inspection took notes etc in which the Managing Director signed and that surveyor visited the factory premises on 13.09.2006 noted down the entire fact and matters.  Thereafter complainant submitted the claim and also requested the op to take all possible action for settlement of the claim and op received the said letter on 28.08.2009 and fact remains in respect of the said case FRT was submitted by the Police Officer in G.R. Case bearing No. 1549/2006 from the said FRT it is to be mentioned that theft/burglary in the factory premises was committed.  But it is most unfortunate that even after submission of the report by the surveyor them and complainant is a consumer op insurance company neglected to settled the said claim and in the circumstances complainant sent legal notice on 09.05.2011 which was duly received by the op on 11.05.2011 but even then it was not settled for which the present complaint is filed for redressal for releasing the amount of Rs.3,50,000/- as claimed amount and for compensation.

          On the other hand op by filing written statement submitted that the present complaint is hopelessly barred by limitation since the claim of the complainant was finally repudiated on 15.03.2007 thereafter no valid communication has been made from the end of the insurance company and it has been specifically mentioned that instant case was filed in the year 2011 though it should be filed within the two years from the date of repudiation i.e. on or before 15.03.2009 but the same has not been done for which the present complaint is barred by limitation.  Further submitted that no doubt the surveyor was appointed in respect of the intimation of the complainant in respect of the incident and surveyor prepared his report on 29.01.2007 and submitted the same before the company on 02.02.2007 and from the report it was found that miscreants entered the factory premises through a gap created for installation of exhaust fan and they scaled with the help of a ladder set on the northern side of the factory and at the time of leaving the factory premises and after completion of their operation the miscreants broke the padlocks from inside the factory.

          Further it is submitted that surveyor prior to preparing his final report asked the complainant vide its letter dated 09.09.2006 and 15.10.2006 to submit certain particular documents namely copy of the F.I.R. in official format and Final Police Report from competent authority and tools, dies, tackles and other items, asset register and present valuation as per audited balance sheet as on 31.03.2006, date of manufacturing of the stolen items, purchase bills and mode of payment with supporting documents, personal statement of the director/other officials, personal statement of the security guards and security arrangement of the factory premises, value of tools, tackles and dies as on/prior to the date of incident, complete plan lay out of the factory stating the entry the exit point and particular regarding the entry point of the miscreants, any other papers that may be required will have to be submitted as and when asked for.  But complainant never furnished those documents, though surveyor deputed by the insurance company asked the complainant to submit it for which and insurance company could not get any particular to make any assessment regarding the quantum of loss.

          Moreover the complainant arbitrarily prayed for an exorbitant amount for the sum of Rs.3,50,000/- and further authenticated document in support of its monetary claim was not furnished.  Further it was submitted that insurance company considered the said surveyor report and perused all the documents which are available with it relating to the claim application and after considering it was observed that the insured is a manufacturer of different sizes of container for packaging of paints and further observed from the said surveyor report that the miscreants entered the factory premises through a gap created for installation of exhaust fan and scaled with the help of a ladder set on the northern side of the factory.  Hence, it is transparent that there was no forcible entry in respect of the incident and hence such alleged incident of theft does not fall under the purview of the burglary insurance policy which stipulates that a claim is admissible interalia when a burglary is committed by breaking open a door or window or wall i.e. there remains some evidence of application of force while committing the same because as per the relevant section of I.P.C. when someone by using its force and breaking open the doors or the windows or the walls enter into a premises i.e. makes forcible entry to a premises then such forcible entry can be termed as burglary.  But complainant has failed to prove it and moreover complainant did not submit any documents as required by the insurance company or the loss assessor and so finding no other alternative finally the claim was repudiated on 15.03.2007 and for which the present complaint is not maintainable and complainant’s entire allegation is false and fabricated.

                                               Decision with reasons

          In the present case we have heard the argument of the Ld. Lawyers of both the parties and also considered the vital allegations of the complainant that op repudiated the claim vide letter dated 15.03.2007 expressing that in spite of letters and reminders sent to the complainant, complainant did not comply with the instruction of the surveyor of the insurance company and also on the ground the complainant withdrawn his claim by giving his consent through his letter and moreover no forcible entry and the incident of theft will not fall under the purview of the policy conditions.

          So, from the complainant’s own version it is clear that his claim was repudiated or turned down on 15.03.2007 and complainant received that letter.  But fact remains that complainant filed this complaint on 19.07.2011 long after 4 years.  Complainant has failed to prove for what reason without filing any application for condonation of delay u/s 27 of C.P. Act 1986, he filed this complaint after expiry of statutory period of 2 years from the date of his cause of action.  So, apparently it is found that the entire claim is barred by limitation.

          In this context Ld. Lawyer for the complainant submitted that it is not barred by limitation in view of the fact against that letter complainant sent letters requesting the op for reconsider the sum and fact remains complainant filed all documents as per requirement.  But op insurance company did not consider the claim and only to deceive the complainant’s case false allegation has been made and when complainant filed several representations and that was not answered.  So, the cause of action arose when the lost letter was sent but no reply was received.

          Against the above argument of the Ld. Lawyer for the complainant, Ld. Lawyer for the op submitted that merely filed representation limitation to file complaint does not protect and there is no question of continuous cause of action when the claim was repudiated long back in the year 2007 vide letter dated 15.03.2007 and which was received by the complainant.  So, the entire claim is barred by limitation.

          In this regard we have gathered that it is undisputed fact that claim was repudiated or closed down on 15.03.2007 with such letter and complainant received it and thereafter cause of action arose to file this complaint on and from 15.03.2007.  But thereafter complainant did not file this complaint.  But it is settled principal of law that merely by making representation subsequent to that limitation to file complaint does not extend and it is also settled principal of law there is no question of continuous cause of action and so considering the entire fact it is proved that the present complaint is barred by limitation and in this regard we have also relied upon one ruling reported in 2013 (4) CPR 224 (NC).

          Further we have gathered from the copy of the letters of the surveyor dated 09.09.2006 and also on 15.10.2006 and no doubt it was received by the complainant but complainant has suppressed it and from those letters it is found that complainant was asked to submit some vital documents 8 in number but complainant did not submit it though complainant received it on 13.09.2006.  Further letter was sent by surveyor as second reminder on 15.10.2006 that was also received by the complainant but complainant did not submit to the op.  So, considering that fact it is proved that in the repudiation letter it is specifically mentioned that instead of last reminders sent to the complainant, complainant did not comply with the instruction of the surveyor and did not file any document but that has not been complied by the complainant.

          So, considering that fact it is clear that complainant did not comply the instruction of the surveyor or op and did not file any document for which it was repudiated on 15.03.2007 and that is the cause of action arose but complainant did not file its complaint but ultimately filed it on 19.07.2011 which is completely time barred and after considering the entire case record and also the order sheet, it is found that no application u/s 24A of the C.P. Act 1986 was filed along with the complaint for condonation of delay and for which we are convinced that entire complaint barred by limitation and cause of action arose on and from 15.03.2007.  But complaint was filed on 19.07.2011 without any prayer for condonation of delay and no condonation of delay was considered by this Forum before dealing this complaint.  So the entire complaint is found not maintainable and in the aforesaid findings this complaint is not tenable as it is barred by limitation as per C.P. Act 1986 and for which the complaint fails.

          Hence, it is

                                                        ORDERED

          That the complaint be and the same is dismissed on contest without any cost against the op.