This is an application u/s.2 (1)(d)(i)(ii) of Consumer Protection Act. According to the complainant he is a one of the partners of UNITECH, the partnership firm which runs the business of mobile and he has a dealer of Samsung Mobile. The O.P or the Insurance Company and this firm has been insured with O.Ps since 09/10/2014 by a valid policy and the sum assured was Rs. 11,31,500/-. On 09/10/2014 the O.Ps handed over the policy deed and the complainant paid Rs. 4,454/- by cheque as a premium. For the purpose of that insurance and the policy was valid till midnight of 09/10/2015. On 01/02/2015 the complainant came to know that theft was conducted in the midnight of 31/08/2015 in the above mention shop and it was found that stock of mobile, tabs, notes and other accessories including cash of Rs. 57,600/- had been stolen of some miscreants and the total value of the stolen article was Rs. 9,85,352/-. The complainant lodged a written FIR in the Alipurduar Police Station upon which the PS Case Bearing No. 35 of 2015 dated 01/02/2015 has been registered and the investigation was started but during investigation final report has been submitted by the police on 06/09/2015. The complainant thereafter apply for claim of Rs. 9,85,352/- before the O.Ps on 12/04/2015. The O.Ps Company sent a surveyor from M/S Bhadra Insurance Surveyors & Loss Assessors (P) Ltd. but came to the spot and after verification of the spot complainant handed over all necessary documents as demanded by that surveyor. After spot verification by the appointed surveyor of the O.Ps were not taken any initiative to settle up the claim. Although, the complainant contacted with the O.Ps on several occasions thereafter, the O.Ps were sent a letter on 15/07/2017 and stating that surveyor is reported wherein he has stated that claim is not proper and no satisfactory them and O.Ps are directed to complainant to resubmit all relevant papers accordingly. On 17/11/2017 the complainant resubmitted all relevant documents by hand on 08/05/2018. The complainant issued a legal notice to the O.Ps on 16/05/2018. The O.Ps sent the reply and stated that all the necessary documents in support of his claim are false and fabricated. Due to the whimsical Act of the O.Ps the complainant did not give assurance the claim amount till date although he has submited of his genuine documents to the O.Ps. The complainant has claimed the amount of Rs. 9,85,352/- which was approved due to the loss of theft along with Rs. 1,00,000/- for his mental agony and harassment and Rs. 50,000/- as litigation costs.
The O.P Nos. 1 and 2 filed the written version and denying all the allegations of the complainant. He has stated that the complainant did not hand over the necessary documents either before the surveyor or before them. Although the several occasions O.Ps have requested the complainant to submit the documents. O.Ps also stated that the complainant is not the sole owner of the shop that which he can not be allowed to file the suit without taking leaves under law. The complainant did not comply the physical inventory immediate after the theft stock register is not maintained properly. There is no IMEL Nos. of 42 mobile sets the documents was not unaudited at the value of the stolen items found Rs. 8,000/- per piece. The complainant did not specify the O.Ps on the above points for which the settle was not done according to him. So, the complainant is not entitled to get any compensation from the O.Ps. The O.P. No. 3 has been expunged according to the petition filed by the complainant Vide Order No. 31 dated 23/07/2021.
Both the parties have filed evidence-in-chief as well as written argument in support of their respective cases. Both the parties have also filed documents.
We have also heard the argument of both sides and also perused the materials available on record.
In this context, the following issues are necessarily come up for consideration to reach just decision of the case.
POINTS FOR CONSIDERATION
Is the complainant a consumer u/s.2 (1)(d)(i)(ii) of Consumer Protection Act ?
Has this Forum jurisdiction to try the instant case?
Is the suit barred by limitation?
Is there any deficiency in service on the part of the O.P?
To what other relief/reliefs the complainant is entitled?
DECISION WITH REASONS
Point Nos. 1 and 2: This complaint has been filed due to non-payment insurance claim after the theft of the shop of the complainant. It appears that the mobile shop of the complainant insured with the O.Ps and after that the insurance company inform the surveyor was sent from the company who made the inventory of the shop but the relieve did not pay the insurance claim to the complainant and ultimately the complainant has filed this case and it’s completely a violation of the Consumer Protection Act. The complainant is a consumer according to the definition of this Act and the case is well maintainable. The case is filed in this commission within the jurisdiction of this Commission.
Point No. 3: The theft of the complainant shop was committed on 01/02/2015 i.e. midnight of 31/12/2015 thereafter, the complainant lodged the FIR before the Police Station on 01/02/2015 regarding the same theft and also informed the matter to the insurance company thereafter insurance company sent his surveyor for spot verification and at the time of spot verification the complainant handed over all necessary documents as demanded by the surveyor. Thereafter, the complainant in several occasions requested the O.Ps to settle the claim but no positive reply was come from their end. On 15/07/2017 O.Ps sent one letter to the complainant and stating that surveyor submitted to the report to the O.Ps and according to the report, the claim is not proper and not satisfactory to them but also directed to the complainant to resubmit all relevant documents for clearance of the claim on 17/11/2017 the complainant resubmitted all the relevant documents thereafter, on 08/05/2018 the complainant sent one legal notice to the O.Ps. After receiving that legal notice O.Ps sent it’s reply on 16/05/2018 wherein they against stated to file the necessary documents in support of their claims and again on 24/07/2018 they also demanded the necessary documents although the complainant has submitted the same and ultimately the complainant has filed this case on 29/08/2018.
Ld. Advocate of the O.Ps argued that the cause of action arose on 01/02/2015 and the limitation period is only two years but the complainant filed this case after expiry of said two years and he did not file any petition for condonation of delay according to him. This case is barred by limitation and it is not maintainable. In this regard he has cited case laws reported in 2016(5) WBLR (CPSC) 299 in reply Ld. Advocate for complainant argued that the cause of action is not a particular date it is bundle of facts and it may be very time to time.
Considering the argument of both sides we find that the limitation period for filing a case from two years from the arising of cause of action. Now, the question of actual cause of action in which date here in this case we find that the theft was committed on 01/02/2015. So, according to law it had to file within 01/02/2017. So, straight jacket it is a barred by limitation as because the case is filed in 29/08/2018. But, we find that the complainant informed the insurance company, insurance company sent it’s surveyor to visit the spot. The spot was visited on 12/04/2015 and on that date the complainant handed over several documents relating to his shop as desired by the surveyor Annexure-C is the document proved the same. Thereafter, the O.Ps did not inform the complainant regarding his claim as per survey report. The complainant on several occasions talk with the O.Ps over phone and ultimately, on 15/07/2017 Annexure-D(i) O.P informed the complainant to resubmit some documents as because the survey is not satisfactory with the documents. So, letter was sent to the complainant by the O.Ps after expiry of the limitation period. It also appears from Annexure- D(ii) that on 16/11/2017 the complainant submitted all the documents to the O.Ps as he was asked. Thereafter, the O.Ps was remain silent that on 08/05/2018, a legal notice was served upon the O.Ps by Annexure- E(i) and on 16/05/2018 O.Ps replied wherein he again demanded the documents which he was received on 16/11/20017 and on 24/07/2018 by Annexure-F he again demanded the documents. So, from the entire correspondence between the parties it appears that leaches from the part of the O.Ps to settle the complaint within the statutory period of limitation. After surveyor spot verification O.Ps were remain silent and expiry of limitation period he took action by demanding the documents which the surveyor was received during spot verification. Thereafter, the O.Ps also remain silent after submitting the documents by the complainant again and after serving the legal notice the O.Ps replied the same and demanding the document again and again Annexure-E and F are the document proved the same.
From the conduct of the O.Ps it appears that their intentions were not to settle the claim and he raised the point of limitation although the company itself took the initiative after crossing the limitation period. The intention of O.Ps were not good which appears from his conduct by sending letter one after another for demanding documents from the complainant although they have received the documents on several times from the complainant. After careful scrutiny of documents we find that the cause of action arose on 15/07/2017 by which the O.Ps demanded the documents although his surveyor has received the same and that letter sent by expiry of limitation period and this type of letter he has sent lastly on 24/07/2018 wherein he has also demanded documents although he has received the several occasions as proved by the complainant. So, the accrual of cause of action is not on 01/02/2015 but it was arose on 15/07/2017, 16/05/2018 and 24/07/2018 wherein the O.Ps demanded the documents again and again although he has received the documents on several times. This Act of the O.Ps his tantamount to repudiation of the claim of the complainant.
In a case laws reported in Vol-II(2012) CPJ 312(NC) M/s Chambal Fertilizer Vs M/s Iffco-Tokio General Insurance wherein the Hon’ble National Commission held regarding accrual cause of action in Para-6 “From the above it may be noticed that according to complainant, the cause of action for filing present complaint arose from the first time on 26/03/2007 when the complainant cut open Train – B Carbamate condenser and found it damaged, it again arose when the complainant lodged it’s claim with the O.P insurance company on 11/02/2008 and it arose on 19/11/2010 when the O.P No. 1 repudiated the complainant claims. The cause of action is stated to be continuing and subsisting one ……………………………………… In case of non-settlement of insurance Claim by an insurance company it has been consistent view of this commission that in such matter it is the date of repudiation of the insurance claim which also be treated as the date of accrual cause of action and the period of limitation of two years prescribed of the U/s - 24A of the Act may be reckoned from the date of such repudiation.”
On the basis of this decision the state commission of Chandigarh in case Jagan Nath vs National Insurance company dated-05/06/2014 held in similar type of this case the first question that falls for consideration is as to whether, the complaint filed by the complainant was within limitation or not. It may be stated here that no doubt the theft took place on 18/03/1999 and the complaint was filed on 24/07/2005 since the claim of the complainant was never repudiated by the O.P., in our considered opinion that there was continuing cause of action in his favour. It was only Vide letter no. 17/05/2007 Annexure-A(21) that the O.P intimated the complainant that the policy was not issued by it’s Divisional Office-III Chandigarh. Even if it is assumed for sake of argument that Vide letter no. 17/05/2007 for first time the O.P intimated the complainant that the policy was not issued at the most. It could be said that the cause of action arose to the complainant on that date and the complainant filed the case on 24/07/2007 could certainly be said to have been filed within a period of two years.
After careful perusal of the above two case laws we find that the cause of action first arose on 01/02/2015 and according to the observation of National Commission and State Commission that the cause of action is continuing and subsisting one. It was arisen again on 15/07/2017 wherein the O.Ps asked the complainant to submit all the documents which the surveyor of the O.Ps received on 12/04/2015. It also appears that the cause of action arose on 16/05/2018 and 24/07/2018 by Annexure-E(ii) and F wherein the O.Ps again demanded the documents from the complainant which he has received on 16/11/20017. The O.Ps cleverly acted here by demanding the documents one after another without settle the disputes to create the limitation and took the plea the limitation before this Commission. The letter of the O.Ps itself tantamount to repudiation of the claim. The State Commission in the case laws supplied by the O.Ps have stated that the limitation of the two years arose from the accrual of the cause of action but here in this case we find that the cause of action arose on at first on 01/02/2015 then 15/07/2017 then again 16/05/2018 and 24/07/2018 and the case has been filed 29/07/2018 which is within the statutory period of limitation and look from any angle by no stretch of imagination it could be said that the complaint is barred by limitation.
Point no. 4 and 5: During argument Ld. Advocate for the O.Ps argued that the another partner of this firm has not been impleaded party in this case and it is bad for non-joinder of parties. In this regard he had referred a case law of N.C.D.R.C in between HDFC Bank Limited Vs Virbhan Sharma on 03/03/2014. After careful scrutiny of this case law we find that this case is totally different from the present case. In the present case the partnership firm Unitech is the party represented by one of his partners other partner is not required to implead in this case.
It appears that the admitted position is that the Insurance Policy was made in the name of Unitech from the O.Ps Insurance Company and it is fact from the documents i.e. Annexure-B(i) and B(ii) that the theft was committed in the same company of Unitech and FIR was lodged in this regard. It also appears that the complainant informed the O.Ps and submit his claim and surveyor was sent for spot visit but till date no claim was settle from the side of the O.Ps. We find that the total loss of the complainant is 9,85,352/- the complainant has filed his stock register upto 31st January , 2015. After several attempts the O.Ps did not settle the claim and harass the complainant by sending letter and one after another demanding the documents which the complainant has filed before the O.Ps on several times. The complainant being the consumer according to law is entitled to get the insurance claim and there is a direct laches of negligence from the part of the O.Ps to settle the claim. Regarding claim in the written argument it is based on non-production of documents by the complainant but from Annexures very much clear that the documents have been filed by the complainant on several occasions. It is deliberate negligence from the part of the O.Ps for non-payment of valid insurance as claimed by complainant. The complainant is entitled to get Rs.9,85,352/- along with bank interest till the payment. The complainant has suffered mental agony since 01/02/2015 due to the negligence Act of the O.Ps. So, due to his mental harassment and agony the complainant is entitled to get Rs. 75,000/- from the O.Ps as a compensation for his mental agony and harassment and he is also entitled to get Rs. 10,000/- as litigation costs.
Hence, for ends of justice, it is,
ORDERED
that the instant case be and same is allowed on contest against the O.P Nos. 1 & 2. The complainant do get the award of Rs. 9,85,352/-as insurance claim in respect of theft in the shop along with bank interest on that amount till the payment is made and he also do get an award amounting to Rs. 75,000/- as compensation for his mental agony and sufferings and also Rs. 10,000/- as his litigation costs; total decreetal amount of Rs. 10,70,352/- excluding interest. The O.P Nos. 1 & 2 is hereby directed to pay the decreetal amount along with interest to the complainant within 30 days from this day, failing which legal action will be taken against him.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
Dictated & Corrected by me
