ADVOCATES WHO APPEARED IN THIS CASE

For Complainant Fozial Hoque               :      Mr. Ayub Jinna

For Oriental Insurance Company Ltd.      :      Mr. Abrar Ahmed

Date of Argument        :27-06-2017

Date of Judgment        : 27-06-2017

JUDGMENT

D. K. Mahanta, Member

          Both these appeals are directed against the order dated 09-06-2015 passed by the District Consumer Disputes Redressal Forum, Goalpara, in respect of Complaint Petition Case No. 01 of 2010. For that reason, both the appeals have been clubbed together and are disposed of by this common judgment.

          The salient facts giving rise to these appeals are as follows: Complainant Fozial Hoque is the owner of the Public Carrier vehicle bearing Registration No. ML-07-9921 that was insured with Oriental Insurance Company Ltd. for the period starting from 28-03-2006 to 27-03-2007. The said automobile allegedly met with a road accident on 02-03-2007, and consequently, the car got damaged. In respect of the said mishap, the complainant submitted claim before the insurer seeking compensation to the tune of Rs.1,32,000/- being the repairing charge of his damaged car, but the claim was not settled.

          Under the above situation, the complainant filed the above referred complaint petition before the District Consumer Disputes Redressal Forum, Goalpara, claiming a total sum of Rs.7,00,000/- from the Insurance Company under different heads. The District Forum, after taking into account the pleadings of the parties and the evidence led by them, passed the impugned award, whereby, the appellant Insurance Company was directed to pay the respondent Rs.1,32,000/- towards the cost of repairing of the damage caused to the complainant’s vehicle in conjunction with compensation of Rs.10,000/- for mental agony and harassment plus Rs.5,000/- on account of litigation cost. It has further been ordered that the complete amount will be required to be paid within a period of three months from the date of the said judgment failing which, the entire sum shall carry interest  at the rate of 8% per annum from the date of judgment till realisation.

          Aggrieved by the said order passed by the District Forum, the complainant has filed First Appeal No. 26 of 2015 seeking enhancement of the awarded amount on the plea that the District Forum has failed to take into consideration the financial loss suffered by him due to deficiency in service on the part of the Insurance Company. On the other hand, the insurer of the accident involved vehicle, Oriental Insurance Company Ltd. has also filed a separate appeal [F. A. No. 38 of 2015] challenging the order of the District Forum primarily on the ground that the complaint petition filed by the car owner is barred by limitation and as such, the award passed by the District Forum is liable to be set aside.

          We have perused the written arguments filed by both the parties, the impugned award of the District Forum, as well as the records of the Complaint Petition Case No. 01 of 2010. Counsel for both the parties has also been heard at length.

            It is not disputed that the complainant’s vehicle bearing Registration No. ML-07-9921, insured with Oriental Insurance Company Ltd. got damaged in a road accident for which claim was submitted before the insurer by the car owner. The insurer, admittedly, (Para-8 of their written statement) investigated the alleged incident and also examined the accident involved automobile through their engaged surveyor. According to the Insurance Company, for settlement of the claim, vide their letter dated 29-11-2007, the complainant was requested to furnish the original cash memo, bill, money receipt, original police report and MVI report within five days of receipt of the said letter. In the said communication, it was also specifically mentioned that failing this, it would be presumed that the claimant was not interested to pursue his claim and accordingly, the said claim would be treated as ‘No Claim’. However, according to the Insurance Company, the car owner failed to submit the required documents for which, his claim had to be repudiated. It is also the contention of the learned advocate appearing for the insurer that as the claim set up by the complainant was repudiated by the Insurance Company on 29-11-2007, the complaint petition dated      02-01-2010 filed by the car owner before the District Forum is not maintainable being clearly barred by limitation.

            As against this, the submission of the learned counsel for the complainant is that the estimated value of the repairing assessed immediately after the alleged accident in the year 2007, has increased manifold on the date of judgment (09-06-2015) which situation the District Forum should have taken into consideration while assessing the amount towards the cost of repairing of the accident involved vehicle. According to the complainant, the District Forum also failed to take into consideration that the vehicle was purchased by him availing loan and that as the vehicle could not be repaired due to non settlement of his claim by the insurer, he suffered considerable financial loss, because, the said automobile was used by him as a commercial Public Carrier. It is the contention of the learned counsel for the complainant that in view of the monetary loss suffered by the car owner, there is as such basis for award of enhanced compensation.

            Regarding the point of limitation, the contention of the complainant is that the claim form was submitted on 01-08-2007 and thereafter nothing was heard from the insurer about his claim, for which, a legal notice was also served on the Insurance Company on 12-11-2009. However, in spite of this, as no reply was forthcoming from the side of the insurer, the complainant was forced to file his complaint petition on 02-01-2010. It has further been contended that the alleged repudiation letter dated 29-11-2007 was not received by him. It is also been submitted that the said correspondence dated 29-11-2007 cannot be treated as a repudiation letter.

          It has been contended by the complainant that in view of the foregoing circumstances, the cause of action arose on 12-11-2009 when the legal notice was served on the Insurance Company, and therefore, the complaint petition filed by him on 02-01-2010 is evidently not barred by limitation.

          In our considered opinion, the core question for consideration is whether on facts at hand, the complaint petition preferred by the appellant complainant is barred by limitation 

          On the issue of limitation, reliance can be placed in the judgment of the Hon’ble Supreme Court of India in the case of KANDIMALLA RAGHAVAIAH & CO. –VS- NATIONAL INSURANCE CO. & ANOTHER (2009) 7 Supreme Court Cases 768 wherein it was held as follows

17. Section 24 A of the Act bars any fora set up under the Act, from admitting a complaint, unless the complaint is filed within two years from the date of which the cause of action has arisen. The provision expressly casts a duty on the Commission, admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen.

Recently, in State Bank of India -vs- B.S. Agricultural Industries ((2009) 5 SCC 121: JT 2009 (4) SC 191), this Court, while dealing with the same provision, has held

11.….It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, shall not admit a complaint occurring in Section 24 A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed there under.

12. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24 A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.

(Also see: Union of India & Anr. –Vs- British India Corporation Ltd. & Ors. (2003) 9 SCC 50 and Haryana Urban Development Authority –Vs-B.K. Sood  (2006) 1 SCC 164)

18. 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 contexts, 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 & Ors. (1970) 1 SCC 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.”

          In the present case before us, admittedly, the complainant’s vehicle was damaged in the road accident dated 02-03-2007. The contention of the complainant is that on 01-08-2007, the claim form was submitted to the insurer and thereafter, nothing was heard from the Insurance Company. If this version of the complainant is accepted as accurate, then the accrual of cause of action has to be the date on which the alleged accident took place (i.e. 02-03-2007) or the date on which the claim was submitted to the insurer (i.e. 01-08-2007).

It is the contention of the learned advocate appearing for the insurer that as the claim set up by the complainant was repudiated by the Insurance Company on 29-11-2007, the complaint petition dated 02-01-2010 filed by the car owner before the District Forum is not maintainable being clearly barred by limitation. Nevertheless, it has been contended by the complainant that the alleged repudiation letter dated 29-11-2007 was not received by him and that the said correspondence also cannot be treated as a repudiation letter. However, the realistic component cannot be ignored that even if this date of repudiation letter, admitted by the Insurance Company, is taken as the date of accrual of the cause of action, still, in respect of the complaint petition dated 02-01-2010, the period of limitation for the purpose of Section 24 A of the Act had expired.

From the circumstances narrated above, since, the complaint petition was filed on 02-01-2010 the same was clearly barred by limitation having been filed after expiry of two years from the date of accrual of cause of action. The delay in filing the complaint was thus obvious and there was not even a prayer or an application for condonation of delay. Therefore, the complaint petition could not have been entertained by the District Forum as there was nothing on record to show that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen and delay was condoned for the reasons recorded in writing. Cause of action could not be assumed to continue till the date of denial of the claim.

By no stretch of imagination, it can be said that the legal notice dated 12th November, 2009, allegedly issued to the Insurance Company, resulted in extending the period of limitation for the purpose of Section 24 A of the Act, as contended by the complainant car owner.

For the reasons stated above, the impugned judgment of the District Forum dated 09-06-2015 is hereby set aside and the Complaint Petition Case No. 01 of 2010 filed by the complainant is ordered to be dismissed.

In the result, F. A. No. 38 of 2015 filed by the Oriental Insurance Company Ltd. is allowed while, the First Appeal No. 26 of 2015 filed by the complainant seeking enhancement of the awarded amount stands dismissed, leaving the parties to bear their own costs.

The statutory amount deposited by both the appellants before this commission, if any, may be released in their favour.

          Send back the original records of Complaint Petition Case No. 01 of 2010 to the concerned District Forum along with a copy of this judgment.