Complaint No: 36 of 2020.
Date of Institution: 07.02.2020.
Date of order: 15.01.2924.
Ravinder Singh Son of Amrik Singh, resident of Village Bakhatpura, Tehsil and District Gurdaspur.
….......Complainant.
VERSUS
The New India Assurance Company Ltd., G.T. Road Mandi Gurdaspur, through its Branch Manager. Pin Code – 143521.
….Opposite party.
Complaint u/s 12 of Consumer Protection Act.
Present: For the Complainant: Sh.Gurjot Singh, Advocate.
For the Opposite Party: Sh.Sanjeev Mahajan, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Ravinder Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against The New India Assurance Co. Ltd. (here-in-after referred to as 'opposite party).
2. Briefly stated, the case of the complainant is that the complainant is the owner of a truck bearing registration No. PB-11-BR-8718 mark TATA 3118 chassis/engine No. 02447 / 3362193. The complainant purchased the above said truck for his livelihood. It is pleaded that the truck in question of complainant is fully insured with the opposite party for sum of Rs.43,236/- after requisite premium was paid by the complainant to the opposite party and hence complainant having availed services from the opposite party is the consumer of the opposite party. Insurance of the truck in question was valid from 30.11.2016 to 29.11.2017 and the policy No. is 36160231160100002884. It is further pleaded that during the subsistence of the insurance policy, the above said truck of the complainant was stolen by someone on 27.06.2017 when the complainant was plying the said truck and going to Amritsar to Tarn Taran and near the railway fatak the shaft of the truck was broken, then the complainant alongwith Angrej Singh son of Karam Singh resident of Baba Bakala went to Jahajgarh Amritsar for purchasing the broken part of truck in question, after parking the truck there and when they reached near railway crossing of Tarn Taran at about 9.00 P.M, they saw that the truck in question was missing. It is further pleaded that after it, the complainant and said Angrej Singh tried to find the truck, but they could not traced the truck in question. It is a further pleaded that the complainant approached the police Chowki of Kot Mit Singh and untraced report was lodged and got registered FIR No. 222 dated 25.08.2016 U/s 379 IPC at PS Sultanvind Amritsar. It is further pleaded that immediately after theft of truck in question, the complainant informed the opposite party regarding theft of truck in question and also the complainant had been visiting to the opposite party regular intervals for settlement of his claim within reasonable time, but the opposite party had been delaying the matter on one pretext or the other, but to the dismay of complainant, the opposite party did not settle the claim of the complainant so far without any rhyme and reason and delayed the matter with some ulterior motive and malafide intention and thus there is deficiency in service on the part of the opposite party. It is further pleaded that due to this illegal act and conduct of the opposite party the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite party.
On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite party and prayed that necessary directions may kindly be issued to the opposite party to pay a sum of Rs.20,00,000/- to the complainant on account of theft of Truck in question. The complainant may be awarded any other relief which he may be found entitled to in the given circumstances, in the interest of justice.
3. Upon notice, the opposite party appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint filed by the complainant is not legally maintainable being time barred. As per facts of the application/complaint the alleged theft was occurred on 27.06.2017 and this complaint is filed on 07.02.2020 after lapse of more than two years and became time barred. As such, the complaint is liable to be dismissed on this ground alone. It is pleaded that No cause of action has ever arisen in favour of the complainant against the replying opposite party to file the present complaint as No intimation of the alleged theft had been given to the opposite party by the complainant. It is further pleaded that as per terms & conditions of insurance policy, the complainant was required to intimate the insurer/opposite party about the alleged theft, immediately but in the present case the complainant never intimated the opposite party in respect to alleged theft and failure in giving intimation to the opposite party casts a flim of doubt over the bona fide of the complainant and its having failed to comply with the aforesaid requirement, the opposite party cannot be made liable to indemnify the insured. It is further pleaded that complaint under reply is an abuse of the process of law and as such the same is liable to be dismissed. It is further pleaded that all allegations made in the complaint, which are not specifically denied herein, are denied being false and baseless. It is further pleaded that present complaint of the complainant is absolutely false, frivolous. It is further pleaded that at the very outset the replying opposite party denies all the allegations, facts and averments stated in the complaint filed by the complainant except to the extent it is expressly admitted therein. The non-traversal of any paragraph should be read as categorical denial. It is further pleaded that the complaint filed by the complainant is not legally maintainable against the replying opposite party and is liable to be dismissed, as the complainant has attempted to misguide and mislead the Hon'ble Commission by filing time barred complaint and as such, the complaint is liable to be dismissed on this ground alone. It is further pleaded that complainant has no locus standi to file the present complaint. It is further pleaded that the insurance is a contract between the two parties and both the parties are bound with the terms and conditions of the policy. The scope of the terms and conditions cannot be increased or decreased. It is further pleaded that insurance is a contract based on utmost good faith and it is the duty of the insured to disclose all the material facts and only misrepresentation on the part of the insured is fatal one. The complainant has not come in this Hon'ble Court with clean hands and has suppressed true and material facts from this Hon'ble Court. Therefore, the complainant is not entitled to any relief from this Hon'ble Commission.
On merits, the opposite party has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has tendered into evidence affidavit of Ravinder Singh, (Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-5.
5. Learned counsel for the opposite party has tendered into evidence affidavit of Sh. Charan Dass, (Senior Divisional Manager of The New India Assurance Co. Ltd, Pathankot) as Ex.OPW-1/A alongwith other document as Ex.OP-1 alongwith reply.
6. Rejoinder not filed by the complainant.
7. Written arguments filed by the complainant but not filed by the opposite party.
8. It is argued by the counsel for complainant that the complainant is the owner of a truck bearing registration No. PB-11-BR-8718 and complainant got fully insured truck with the opposite party valid from 30.11.2016 to 29.11.2017 and said truck of the complainant was stolen by someone on 27.06.2017 when the complainant was plying the said truck and from Amritsar to Tarn Taran and near the railway fatak the shaft of the truck was broken, then the complainant alongwith Angrej Singh son of Karam Singh resident of Baba Bakala went to Jahajgarh Amritsar for purchasing the broken part of truck in question, after parking the truck there and when they reached near railway crossing of Tarn Taran at about 9.00 P.M, they saw that the truck in question was already stolen. The complainant approached the police Chowki of Kot Mit Singh and got registered FIR No. 222 dated 25.08.2016 U/s 379 IPC at PS Sultanvind Amritsar. It is further pleaded that immediately after theft of truck in question, the complainant informed the opposite party regarding theft of truck in question and also the complainant had been visiting to the opposite party regular intervals for settlement of his claim within reasonable time, but the opposite party had been delaying the matter on one pretext or the other, but to the dismay of complainant, the opposite party did not settle the claim of the complainant so far without any rhyme and reason and delayed the matter with some ulterior motive and malafide intention and thus there is deficiency in service on the part of the opposite party.
9. Counsel for the opposite party has argued that the alleged theft was took place on 27.06.2017 and this complaint is filed on 07.02.2020 after lapse of more than two years and is time barred. As such, the complaint is liable to be dismissed on this ground alone. It is argued that No intimation of the alleged theft had been given to the opposite party by the complainant and as per terms & conditions of insurance policy the complainant was required to intimate the insurer/opposite party about the alleged theft, immediately but in the present case the complainant never intimated the opposite party in respect to alleged theft and failure in giving intimation to the opposite party casts a doubt over the bona fide of the complainant and its having failed to comply with the aforesaid requirement, the opposite party cannot be made liable to indemnify the insured. It is further pleaded that complaint under reply is an abuse of the process of law and as such the same is liable to be dismissed.
10. We have heard the Ld. counsel for the parties and gone through the record.
11. It is admitted fact that complainant is the owner of a truck bearing registration No. PB-11-BR-8718 mark TATA 3118 chassis/engine No. 02447 / 3362193. It is further admitted fact that the truck of complainant is fully insured with the opposite party on receipt of payment of Rs.43,236/- as requisite premium paid by the complainant to the opposite party and hence complainant having availed services from the opposite party is the consumer of the opposite party. It is further admitted fact that Insurance of the truck in question was valid from 30.11.2016 to 29.11.2017 and the policy No. is 36160231160100002884.
12. The Ld. counsel for the complainant has taken plea that after theft of the truck FIR was lodged immediately and intimation was given was to the opposite party and the opposite party failed to settle the claim and make payment to the complainant. Perusal of file shows that the complainant has lodged FIR in the present case but there’s no intimation letter which shows that the intimation was never given to insurance company and since the truck was allegedly stolen on 27th of June 2017 and the present complaint has been filed on 7-2-2020 and complainant has not been able to explain why the present complaint has been filed after delay of more than eight months. Further perusal of file shows that the complainant has not attached any application far condonation of delay in filing the present complaint and has not attached any other document with the complaint to prove this fact that the complainant ever gave intimation to the insurance company. As such we are of the view that since delay of each day has to be explained but in the present case the complainant has failed mention the date when the intimation was allegedly given by the complainant to the opposite party. As per Consumer Protection Act under section 69 of Limitation prescribed as under:-
“(1) The District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen”.
13. We have also placed reliance upon judgment of Hon'ble Supreme Court of India in case titled as Ramisetty Venkatanna & Anr. Vs. Nasyam Jamal Saheb & Ors. : 2023(2) Law Herald (SC)1005 wherein it is held as under:-
“O.7 R.11 – Rejection of Plaint -Time Barred Claim – Clever Drafting - Hopelessly time barred claim cannot be allowed to survive by way of illusory cause of action by way of clever drafting.;
14. Accordingly, we are of the view that complaint being barred by limitation i.e. having been filed after delay of Eight months and is not maintainable and is accordingly dismissed being time barred.
15. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
16. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Jan. 15, 2024 Member.
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