PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
The Complainant is a HUF Firm of its Karta Shri. Shantilal A. Jain and it is carrying on business of manufacturing of Designery Gold Jewellery in the name and style of M/s. Amba Jewellers at Kalbadebi Road, Mumbai – 02. The Complainant had obtained from Opposite Party Jewellery Block Policy No.020300/46/01/000372 for the period from 28/02/2002 to 27/02/2003 to cover their Stock and Stock-in-Trade of Jewellery Gold, Silver Ornaments, Cash Currency Notes and/or Mercantile Materials etc. In complaint para no.4, the Complainant has given particulars of policy and insurance cover and its limit submitting that the policy is also subject to the Standard Jewellery Block Policy condition. Copy of Jewellery Block Policy is produced alongwith complaint at Exh.‘A’.
2) It is the case of the Complainant that their employee Mr. Sumit Ashok Kumar Jain on 14/05/2002 was returning from Behrampur to Mumbai with Gold Ornaments and Cash of Rs.3,60,000/- by Bhubaneswar - Mumbai Konark Express Mr. Sumit had kept his bag containing aforesaid Gold Ornaments and Cash under berth. When Mr. Sumit went to toilet somebody unknown person committed theft of said bag. When the train reached at Vishakhapatnam, he got down from the train and gave information to the Vishakhapatnam Police Station at 20.00 hrs. on 16/05/02. On the basis of information F.I.R. No.55 was registered under Sec.379 of I.P.C. in Vishakhapatnam Police Station and his statement was recorded by the Station House Officer. Mr.Sumit had also filed F.I.R. to Behrampur Police Station. Behrampur Police investigated the matter and submitted final report to the Sub Divisional Judicial Magistrate at Behrampur. The complainant has produced copy of F.I.R. at Exh.‘E’.
3) The Complainant after knowing theft of Ornaments and Cash, they had intimated the same to the Opposite Party and submitted claim for reimbursement of lost under the policy. Opposite Party appointed Mr. Navin Jain, the Licensed Surveyor to investigate/verify the matter. Mr. Navin Jain submitted his report to Opposite Party and Opposite Party vide their letter dtd.25/08/04 informed the Complainant that the claim is not admissible as their employee Mr. Sumit Jain was not in exclusive employment on a regular monthly salary paid by cheque and the loss was brought about by gross negligence and hence, excluded under the Exclusion Clause No.8 of the policy.
4) After receipt of Opposite Parties letter dtd.25/08/04, the Complainant personally visited Opposite Party and explained that Mr. Sumit A. Jain was in fact in their employment and in support of the contention pointed out final report of investigation submitted by Inspector of Railway Police Station to the Sub Divisional Magistrate of Behrampur and their balance sheet etc. However, the Opposite Party did not appreciate their stand. Complainant by their advocates notice dtd.23/02/06 called upon Opposite Party to make payment as claimed for Rs.14,62,461/-. The Opposite Party did not comply with the notice. The Opposite Party finally rejected claim of the Complainant by their advocate’s letter dtd.08/06/2006. Therefore, the Complainant has filed this complaint.
5) The Complainant has requested to declare the Opposite Party that Opposite Party is deficient in service and unfair trade practice and further the Complainant has requested to direct Opposite Party to pay sum of Rs.18,22,461/- being insurance claim amount payable under the said policy alongwith interest thereon @ 18% p.a. from the date of loss till realization. The Complainant has also requested to direct Opposite Party to pay to the Complainant Rs.75,000/- as compensation for mental agony, harassment and hardship and Rs.75,000/- towards legal and incidental expenses incurred by the Complainant. Alongwith complaint the Complainant has produced copies of documents as per list of document.
6) Opposite Party has filed written statement and thereby resisted claim of the Complainant contending interalia that complaint is false, frivolous, vexatious, bad in law and not maintainable. It is alleged that the Complainant has field this complaint with oblique motive to extract money from the Opposite Party.
7) The Opposite Party has admitted that they had issued Jewellers Block Policy mentioned in the complaint to the Complainant for the period from 28/02/02 to 27/02/03. It is submitted that the Complainant accepted the same policy, admitting the terms and conditions. However, the Complainant has committed breach of the terms and conditions of the policy. Opposite Party has denied allegations made in the complaint. It is denied that Mr. Sumit A. Jain is an employee of Complainant. According to the Opposite Party, Mr. Sumit Jain was working as a carrier since about 8 months and that he was close relative of the Complainant. It is submitted that there is no evidence to prove that Mr. Sumit Jain was in possession of cash of Rs.3,60,000/-. It is contended that so called theft took place due to negligence of Mr. Sumit Jain. According to the Opposite Party, complaint to the police station was not filed immediately after incidence of theft but it was filed two days after the incidence of theft. It is alleged that the Complainant has tried to make out a false and fabricated case. After considering report of the surveyor Opposite Party had repudiated the claim of the Complainant in accordance with the terms and conditions of the policy. Therefore, complaint is liable to be dismissed with cost.
8) The Complainant has filed rejoinder and thereby denied allegations made in the written statement. The Complainant has filed written argument. The Opposite Party has also filed written argument. Perused documents produced by both the parties. We heard submissions of Ld.Advocate Mr. A.S. Doctor, for the Complainant and Ld.Advocate Mr. A. Navghare, for the Opposite Party. It is submitted on behalf of the Complainant that Complainant’s genuine claim is wrongly repudiated by the Opposite Party and it amounts to deficiency in service on the part of Opposite Party. On the contrary, according to the Ld.Advocate for Opposite Party, the claim is repudiated as per the terms and conditions of the policy and as such there is no deficiency in service on the part of Opposite Party. It is vehemently submitted on behalf of Opposite Party that present complaint is hopelessly barred by law of limitation and on this ground alone complaint is liable to be dismissed with cost.
9) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether present complaint is barred by law of limitation ?
Findings : Yes.
Point No.2 : Whether the Complainant is entitled for reliefs as prayed for ?
Findings : No
Reasons :-
Point No.1 :- Following facts are undisputed facts that the Complainant is a HUF Firm of its Karta Shri. Shantilal A. Jain and it is carrying on business of manufacturing of Designery Gold Jewellery in the name and style of M/s. Amba Jewellery. It is admitted fact that the Complainant had obtained Jewellery Block Policy No.020300/46/01/000372 from the Opposite Party to cover their Stock and Stock-in-Trade of Jewellery Gold, Silver Ornaments, Cash etc. and the said policy was for the period from 28/02/2002 to 27/02/2003. Copy of Jewellery Block Policy is produced on record by the Complainant alongwith complaint at Exh.‘A’.
It is case of the Complainant that on 11/05/06 their employee Mr. Sumit A. Jain was returning from Behrampur to Mumbai with gold ornaments and cash of Rs.3,60,000/- by Bhubaneswar - Mumbai Konark Express. After boarding the train Mr. Sumit A. Jain had kept the bag containing Gold Ornaments and cash under the berth and when he went to toilet that time said bag was stolen. When train reached at Vishakhapatnam, Mr. Sumit A. Jain gave information of theft to the Complainant and reported the theft to the Vishakhapatnam Railway Police Station on 16/05/2002 and subsequently, he had also filed F.I.R. at Behrampur, Dist. Gangan. It submitted on behalf of the Complainant that when the Complainant came to know about the theft of Gold Ornaments and Cash, the Complainant had given intimation to the Opposite Party and lodged claim with the Opposite Party. It is not in dispute that after receipt of claim Opposite Party had appointed Mr. Navin Jain as a Surveyor. According to the Complainant form time to time surveyor called information and documents to the Complainant which were supplied to the said surveyor. Thereafter, Opposite Party without furnishing copy of surveyor’s report by letter dtd.25/08/04 informed the Complainant that claim is not admissible as their employee Mr. Sumit Jain was not in exclusive employment on a regular monthly salary paid by cheque and the loss was brought about by gross negligence and hence, excluded under the Exclusion Clause No.8 of the policy. It is submitted on behalf of the Complainant that thereafter lot of correspondence took place between the parties and Opposite Party vide their Advocate’s letter dtd.08/08/06 finally rejected the Complainant’s claim and therefore, present complaint is within limitation.
The Complainant has filed this complaint before this Forum on 06/07/07. As per the provisions of Sec.24(A) of the Consumer Protection Act, 1986, complaint is required to be filed within 2 years from the date on which cause of action has arisen. Ld.Advocate for the Opposite Party has submitted that complaint is not filed within 2 years from the date of cause of action and the complaint is hopelessly time barred. The Complainant has also not filed application for condonation of delay. On the contrary it is falsely claimed that cause of action for this complaint took place on 08/08/2006 when Complainant’s claim was finally rejected by the Opposite Party’s Advocates letter dtd.08/08/06. It is submitted by the Ld.Advocate for the Opposite Party that the Complainant had submitted his claim under the insurance policy. Cause of action for this complaint took place on 11/05/2006 when alleged theft of Gold, Ornaments and Cash amount took place. It is submitted that the Complainant ought to have filed the complaint within 2 years from the date of cause of action i.e. 11/05/06. In support of contention, Ld.Advocate for the Opposite Party has relied upon the decision of the Hon’ble Supreme Court, reported in the matter in Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd. & Anr. In the aforesaid decision the Hon’ble Supreme Court has observed that –
“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 context, 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 and ors, (1970) l SSC 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.”
Ld.Advocate for the Complainant has submitted that Complainant’s claim was finally rejected by the Opposite Party by their Advocate’s letter dtd.08/06/2006, therefore, present complaint is filed within limitation. According to the Opposite Party, Complainant’s claim was finally repudiated by letter dtd.25/08/2004. The Complainant has not deliberately produced aforesaid letter alongwith complaint. However, in the complaint para no.13 the Complainant has clearly admitted that Opposite Party by their letter dtd.25/08/04 informed the Complainant that the claim is not admissible. Reasons given for repudiation of claim in the said letter are also recited in the complaint para no.13. It is submitted on behalf of Opposite Party that further correspondence made after repudiation of claim will not extend period of limitation. It is submitted that the Complainant is well aware about the fact of repudiation of his claim by Opposite Party by letter dtd.25/08/04 as recited in complaint para No.13. Thereafter, from time to time the Complainant wrote letter to Opposite Party to review or reconsider their decision of rejection of claim. In order to mislead this Forum the Complainant has falsely alleged that Opposite Party finally repudiated claim through their advocate’s letter dtd.08/08/06. Ld.Advocate for the Opposite Party refers to Opposite Party’s Advocate’s letter dtd.08/08/06 and pointed out contents of para no.10 in which the Opposite Party’s Advocate has said that “my clients are not bound to review or reconsider your clients’ claim and they have rightly repudiated your client’s claim as NO CLAIM.” So it is clear from the contents of Advocate’s notice dtd.08/08/06 that Complainant’s claim was already repudiated by the Opposite Party and after repudiation the Complainant made requests to review or reconsider earlier decision of the claim. From the evidence on record it is clear that Complainant’s claim was rejected by the Opposite Party vide their letter dtd.25/08/04. Present complaint which is filed on 06/07/07 is also not filed within 2 year from the date of repudiation i.e. from 25/08/2004. Alongwith complaint there is no delay condonation application. On the contrary the Complainant has erroneously stated that Complainant’s claim was finally repudiated on 08/08/06. Hence, present complaint is not filed within prescribed period of limitation and it is hopelessly time barred. Therefore, we answer point no.1 in the affirmative.
Point No.2 : The complaint is not filed within prescribed period of time, therefore, the Complainant is not entitled to claim any reliefs as prayed for and the complaint deserves to be dismissed. Hence, we answer point no.2 in the negative and pass following order -
O R D E R
i.Complaint No.202/2007 is hereby dismissed.
ii.No order as to cost.
iii.Certified copies of this order be furnished to the parties.
