Punjab

Ludhiana

CC/16/81

Sarla Devi - Complainant(s)

Versus

United India Ins.Co.Ltd - Opp.Party(s)

Varinder Puri Adv.

13 Dec 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA

 

Consumer Complaint No.81 of 03.02.2016

Date of Decision        :   13.12.2016

 

Sarla Devi widow of Shri Girdhari Lal resident of Toru Jagir, P.S.Jawala Ji, P.S.Kangra (H.P.) at present residing at E-209, Phase-Iv, Focal Point, Ludhiana.

….. Complainant

Versus 

 

United India Assurance Company Limited, Mata Rani Road Branch, Ludhiana-141008, through its Divisional Manager.

..…Opposite party

 

(Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                     :         Sh.Bhajan Lal, Advocate

For OP                          :         Sh.D.S.Rampal, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                Shorn off unnecessary details, the case of the complainant is that her husband late Sh.Girdhari Lal was employed as driver on Tanker No.PB-10-AD-9555 by Sh.Sunil Kumar Proprietor of M/s. Raja Ram and sons, having its office at Focal Point, Ludhiana. That tanker was insured with OP vide policy No.200801-31-06-0003793 with validity period from 22.3.2007 to 21.3.2008. Said tanker met    with an accident on 10.5.2007, resulting in death of the driver Sh.Girdhari Lal. That death took place in the accident during course of employment with the insured and as such, it is claimed that as per the terms of the policy, complainant entitled for compensation of amount of Rs.2 lac. Complainant lodged claim with OP, but OP procrastinating the matter and did not pay the compensation amount. Insured Sunil Kumar issued notice to OP through registered post on 18.3.2014, which was duly received, but despite that compensation amount is not paid. Complainant provided all the necessary documents to OP and even she visited the office of OP many times with request for settlement of the claim, but to no effect. Legal notice dated 9.11.2015 was got served by the complainant through counsel Sh.Bhajan Lal Sharma, Advocate, but despite that amount has not been paid and as such, by pleading deficiency in service on the part of OP, prayer made for directing OP to settle the claim and to pay the amount of Rs.2 lac along interest. Litigation expenses of Rs.22,000/- more claimed.

2.                Op filed written reply by pleading interalia as if the complaint in the present form is not maintainable; complaint is bad due to non-joinder and mis-joinder of necessary parties; complainant has not approached this Forum with clean hands; complaint barred by period of limitation and in view of intricate question of law and facts involved in the case, matter needs to be decided by the court of competent Civil Court after adduction of elaborate evidence. Fact qua issuance of Public Carriers policy with validity from 22.3.2007 to 21.3.2008 not denied, being matter of record. Under that policy, owner-driver covered under PA and insured Sunil Kumar paid the premium for insuring two employees under Workman Compensation Act, so claim is maintainable under Workman Compensation Act and not under the Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’). No mandatory notice Under Section 10 of Employees Compensation Act was issued within six months and as such, complainant is estopped by her act and conduct from filing this complaint. It is denied that  driver Sh.Girdhari Lal was covered under the personal accident as per terms of the policy. Complainant has not gone through the terms and conditions of the policy. Compulsory PA to owner-driver was paid and same does not cover the risk of the driver. It is denied that the complainant lodged claim with OP. Rather, it is submitted that no claim was ever lodged with OP. In view of non lodging of the claim, complainant estopped by her act and conduct from filing this complaint. Besides, it is claimed that owner of the vehicle is liable to pay the amount of compensation (if any) on account of death of his employee. Insurance company is not liable to pay the compensation at all. As claim was never lodged, so question of settling any claim does not arise at all. Complainant failed to submit on record any document showing that she lodged any claim with OP. Rather, the complainant is blowing hot and cold from same breath. Other averment of the complaint denied.

3.                Complainant to prove her case tendered in evidence affidavit Ex.CW2/B of Sh.Sunil Kumar, Proprietor of M/s Raja Ram and Sons in        addition to her own affidavit Ex.CW1/A along with documents Ex.C1 to Ex.C12 and thereafter, counsel for complainant closed the evidence.

4.                On the other hand, counsel for the OP tendered in evidence affidavit Ex.RA of Sh.A.K.Kanojia, Senior Divisional Manager along with document Ex.R1 and thereafter, closed the evidence.

5.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

6.                First and foremost contention of learned counsel for OP is that the complaint is barred by limitation, being not filed within two years from accrual of cause of action. In view of this, it is vehemently contended by counsel for OP that in view of Section 24-A of the Consumer Protection Act, 1986, complaint liable to be dismissed. These submissions advanced by counsel for OP  vehemently   opposed by counsel for complainant by contending that as the complainant made repeated visits and even lodged the claim, but despite that OP procrastinated the matter and as such, in view of non repudiation of the claim till date, complaint is within limitation.

7.                Though, the complainant claims that she lodged the claim with Op, but no document in that respect has been produced. Even the date of lodging of claim not mentioned. Dates on which complainant kept on visiting the office of OP, even not mentioned. Names of the officials contacted by the complainant during such visits even not disclosed and as such allegations in this respect certainly are vague. In view of vagueness of these allegations, claim put forth by the OP in written statement as well as affidavit Ex.RA of Senior Divisional Manager is correct that no claim was ever lodged by the complainant for settling the claim. If such claim was not lodged by the complainant, then question of settlement of the same does not arise.

8.                The standard of proof in the consumer case is not the same as is required in criminal cases, but it must be shown that the pleading or stand taken by the party is tangible or acceptable as per law laid down in case Uttam Sarkar vs. the Management of Tura Christian Hospital and others-2014(2)Consumer Law Today-421(ML). As and when the vague plea taken without disclosing the dates of visits or the names of officials contacted and without producing the proof of lodging of claim, then tangible inference drawable is that actually the claim is not lodged. So, even if FIR Ex.C5 may have been lodged and copy of death certificate of Sh.Girdhari Lal Ex.C6 along with that of post-mortem report Ex.C7 may have been produced by the complainant, but despite that the complainant failed to prove that she lodged the claim with OP.

9.                Cause of action accrued in this case to the complainant w.e.f.10.5.2007, when death of her husband Sh.Girdhari Lal took place in accident. So, complaint must have been filed by 9.5.2009, but this complaint filed on 3.2.2016 i.e. after more than 6 years and 9 months of accrual of cause of action. As and when the complaint is not filed within period of limitation, then the same liable to be rejected in view of section 24-A of the Consumer Protection Act, 1986 because it is obligatory for the Forum to decide the question of limitation, irrespective of the fact as to at what stage question of limitation raised. As both the parties have been given opportunity of leading evidence in this case on question of limitation, but the complainant failed to satisfy by tangible proof qua submission of claim by her and as such, complaint being not filed within two years of accrual of cause of action, liable to be dismissed in view of Section 24-A of the Act. Cause of action accrued in this case on death of Sh.Girdhari Lal on 10.5.2007 and no application for condoning of delay filed and nor any prayer made for condoning the delay and as such, certainly the complaint deserves to be dismissed, in view of Section 24-A of the Act because complaint is not filed within two years of accrual of cause of action. As complaint has been found to be filed beyond the period of limitation and as such, merit of the case need not be gone into.

10.              Therefore, as a sequel of the above discussion, the complaint dismissed without any order as to costs. Copies of order be supplied to the parties free of costs as per rules.

11.                        File be indexed and consigned to record room.

 

                                      (Vinod Bala)                                (G.K.Dhir)

                               Member                                       President

Announced in Open Forum

Dated:13.12.2016

Gobind Sharma.