BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.152 of 2014

Date of Instt. 9.5.2014

Date of Decision :18.12.2014

Dilawar Singh son of Joginder Singh R/o Village and Post Office Sirhal Mundi, Tehsil Phillaur, District Jalandhar.

..........Complainant

Versus

1. United India Insurance Company Limited, Branch situated in Bombay Cloth House, Dhurkot Chowk, Ahmedgarh, District Sangrur-148021, through its Branch Manager.

2. G.N.A. Udyog Limited, Village and Post Office Bundala-144034 District Jalandhar(Punjab) through its M.D/Director/Authorized Signatory.

.........Opposite parties

Complaint under section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Sh.KC Malhotra Adv., counsel for complainant.

Sh.Raman Sharma Adv., counsel for opposite party No.1.

Opposite party No.2 exparte.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant was owner of Tata 407 Tempo bearing registration No.PB-08U-2785 and the same was insured with opposite party No.1 through its authorized agent. The tempo was insured for the period from 31.12.2009 to 30.12.2010 vide cover note No.714171 dated 25.12.2009 for Rs.1,35,000/- sum insured-insured declared value (IDV). The complainant paid total premium of Rs.7900/- as consideration for insurance for tempo under GCV Public Carrier other than three wheeler package policy and was allotted policy No.200602/31/09/01/00004990. The vehicle was being plied for earning livelihood of the complainant as the complainant had no other source of income except from this vehicle. On 28.10.2010 after taking booking order from Tempo Union, Goraya, the driver Piare Lal @ Pappu Dev alongwith Sandeep Singh @ Deepa cleaner loaded the goods containing JCB Pins material from plant of opposite party No.2 for Faridabad. The total value of the missing material was Rs.3,70,000/- according to opposite party No.2. The driver and the cleaner did not reach the place of delivery of goods and fled away with the material loaded on insured tempo and their whereabouts could not be traced out so far. The complainant had no information and whereabouts of the driver and the cleaner nor of the vehicle which appear to have been stolen. The complainant made diligent efforts and enquiries as to the fate of the tempo in question but no clue could be found out. The complainant lodged a complaint to police station Goraya, Tehsil Phillaur, District Jalandhar, in respect of the missing insured tempo and the material loaded thereon against the driver and the cleaner. The police authorities registered FIR No.159 dated 9.12.2010 under section 406/420 of IPC. The intimation was also given to opposite party No.1 which registered theft claim vide No.200602/31/9/0000116. Opposite party No.1 after receipt of the intimation of the missing vehicle got the matter investigated through BS Narang and Associates, Insurance Investigators and Tracers Ludhiana. The complainant also furnished copy of FIR and prescribed claim form besides completed and complied with all the formalities and requirements whichever were asked for by opposite party No.1 for settlement and paying own damage claim by theft of the insured vehicle. The complainant after protracted follow up with opposite party No.1 did not receive any claim payment. The fed up disgusted harassed complainant got served the legal notice dated 27.7.2012 from Shri Onkar Singh Rana Advocate, Ludhiana, to opposite party No.1 and also to its Regional Office at Chennai but to no avail. Opposite party No.1 vide letter Ref.No.BO/A/MSC/HST/2012/142 Department Motor Claim dated 12.6.2012 intimated the complainant that the competent authority has filed the claim as no claim on the following grounds:-

(i) FIR has not been lodged under section 379 i.e accidental theft of the vehicle.

(ii) The FIR has been registered under section 406 and 420which is not covered under the scope of the policy.

2. On such like averments, the complainant has prayed for directing the opposite party No.1 to pay him Rs.1,35,000/- being insured declare value of the above said Tempo alongwith interest. He has also claimed compensation and litigation expenses.

3. Upon notice, the opposite party No.1 appeared and filed a written reply pleading that without admitting any liability, it is submitted that the registration for FIR under section 379 of IPC is essential for claims under theft, as the Non Traceable Reports by the police and its acceptance by the concerned courts, transfer of the registration certificate of the vehicle in the name of the insurer and letter of subrogation etc are essential requirements for making payment of theft claims, which is not possible in the present case, as no FIR under section 379 of IPC has been registered nor there can be any Non Traceable Report by the police, as such the complaint is liable to be dismissed. Otherwise also accused are employees of the insured and alleged theft by employee is not covered under the policy. The vehicle in question owned by the complainant is a commercial vehicle and the same was used for commercial purposes, as such the complainant does not fall under the definition of consumer, as such the complaint is liable to be dismissed. There is an inordinate delay in lodging the FIR by the complainant against the Piare Lal and Sandeep Singh, the alleged driver and cleaner of the vehicle Tata 407 bearing No.PB-08U-2785. The alleged occurrence of offence under section 406,420 of IPC on 28.11.2010 has been intimated to the police on 9.12.2010 after delay of 11 days. No FIR with regard to theft of the vehicle has been lodged with the police nor any allegation of theft or dishonest intention of the driver or cleaner has been leveled against the Piare Lal or Sandeep Singh by the complainant. The complainant himself was negligent in taking care of the vehicle, as he did not take reasonable care to safeguard the vehicle from loss. Even the intimation of the loss to the answering opposite party No.1 was given after the lodging of FIR on 9.12.2010 after inordinate delay, a such the complaint is liable to be dismissed. The claim of the complainant is hopelessly time barred. It is the condition of the insurance policy and expressly agreed and declared between the parties that if the company shall disclaim liability to the insured for any claim and such claim shall not within twelve calender months from the date of such disclaimer have been made subject matter of a suit in court of law, then the claim shall for all purposes shall be deemed to have been abandoned and shall not thereafter be recoverable. In the present case the claim of the complainant was filed as No Claim vide letter dated 12.6.2010 and the present complaint has been filed on 9.5.2014 beyond the period of twelve calender months, as such the complaint is hopelessly time barred and the same is liable to be dismissed. It denied other material averments of the complaint.

4. Upon notice, opposite party 2 did not appear in-spite of service and as such it was proceeded against exparte.

5. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavits Ex.CA and Ex.CB along with copies of documents Ex.C1 and Ex.C5 and closed his evidence.

6. On the other hand, learned counsel for opposite party No.1 has tendered affidavit Ex.O-A alongwith copies of documents Ex.O1 to Ex.O8 closed evidence.

7. We have carefully gone through the record and also heard learned counsel for both the parties.

8. The facts involved in the present complaint are not much disputed. It is not disputed that the insured Tempo of the complainant was taken away by the driver and cleaner of it after loading the goods from opposite party no.2. They were to reach at Faridabad but both the driver and cleaner of the above said vehicle fled away with the goods and the insured Tempo. The complainant intimated the matter to the police and police registered FIR No.159 dated 9.12.2010 under section 406/420 of IPC. The complainant also gave intimation to the insurance company regarding theft but the opposite party repudiated the claim of the complainant vide letter dated 12.6.2012 Ex.C-1 on the ground that FIR has been registered under section 406/420 of IPC and not under section 379 of IPC and as such the claim is not covered under the policy. It may be mentioned here that even if the driver dishonestly take away the vehicle even then the case will fall under theft. In this regard reference may be made S.Bhagat Singh Vs. The Oriental Insurance Co.Ltd, II (1991) CPJ 700, the authority of Hon'ble National Commission. Further counsel for the opposite parties contended that the present complaint is barred by limitation as per condition No.7 of the terms and conditions Ex.O4 of the policy. The opposite parties have also taken preliminary objection No.5 in this regard. Condition No.7 lays down as under:-

" It is also hereby further expressly agreed and declared that if the company shall disclaim liability to the insured for any claim hereunder and such claim shall not, within twelve calender months from the date of such disclaimer have been made the subject mater of a suit in a court of law, then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder".

9. Counsel for the opposite party insurance company contended that the claim was repudiated vide letter dated 12.6.2012 but the present complaint was filed on 7.5.2014 i.e after one year. He contented that as per condition No.7 of the terms and conditions of the policy after one year from the disclaimer of the liability the claim shall be deemed to have been abandoned. On the other hand counsel for the complainant contended that the above said condition is void. He further contended hat under the Consumer Protection Act, period of limitation of two years is prescribed and as such the present complaint is within limitation having been filed within two years from the date of repudiation of claim. In support of his above contentions he has relied upon United India Insurance Company Ltd. Vs. Joy Hukil & Anr, III(2010) CPJ 466 (NC), E.I.C Exports Limited vs. South India Corpn., 2009(3) CPC 378, The Branch Manager, New India Assurance Co.Ltd Vs. Soosai, 2004(1) CLT 672. We have carefully considered the above contentions advanced by learned counsel for both the parties. The above cited authorities relied upon by learned counsel for the complainant are on its own facts and not attracted in this case.

10. In M/s Global Ispat Ltd Vs. Orienal Insurance Company, Firt Appeal No.13 of 2013 decided by Hon'ble National Commission on 10.9.2014, in similar circumstances while interpreting similar condition of the policy, it has been held as under:-

"6. Clause 6(ii) of the general conditions of the policy reads as under:-

"6(ii) In no case whatsoever shall be company be liable for any loss or damage after the expiry of 12 months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration; it being expressly agreed and declared that if the company shall disclaim liability for any claim hereunder and such claim shall not within 12 calender months from the date of the disclaimer have been made the subject matter of a suit in a court of law then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder.

7. Aforesaid clause makes it clear that complainant was under obligation to initiate proceedings for recovery of repudiated amount within 12 months from repudiation. Learned State Commission after citing many judgments of Apex Court rightly observed as under:-

"14.3. In Himchal Pradesh State Forest Co.Ltd, (2009) 2 SCC 252, the case of Vulcan Insurance Co.Ltd, (supra), Food Corporation of India Vs New India Assurance Co.Ltd(supra) and National Insurance Co.Ltd Vs Sujir Ganesh Nayak & Co. & anr, (supra) have again been considered by the Apex Court and it has been noted that in Sujir Ganesh Nayak & Co.& Anr, (supra) to which primary reference was made by the learned counsel for the parties that while dealing with an identical situation where a contract contained a provision prescribing a period of limitation shorter than that prescribed by the Limitation Act, it was held that the contractual provision was not hit by section 28 as the right itself had been extinguished. It was contended before the Apex Court that in the light of certain observations in Food Corporation of India case (supra) the observation in Sujir G.Nayak's case(supra) were required reconsideration but the Hon.Supreme Court found no merit in hat plea for the reason that in Sujir G.Nayak case, Food Corporation of India case was specifically considered and Vulcan Insurance Co.'s case too had been relied upon.

14.4. Thereafter, the Hon.Supreme Court referred to condition 14 in Sujir G. Nayak's case which provided that the company would not be liable for loss or damage from happening of loss or damage unless the claim was the subject of pending action or arbitration and held that while construing that provision vis-a-vis Section 28 of the Contract Act and the cases cited above and several other cases, in addition, it held that:-

16. From the case law referred to above the legal position that emerges is that an agreement which in effect to curtail the period of limitation and prescribes a shorter period than that prescribed by law would be void as offending section 28 of the Contract Act. That is because such an agreement would seek to restrict the party from enforcing his right in court after the period prescribed under the agreement expires even though the period prescribed by law for the enforcement of his right has yet not expired. But there could be agreements which do not seek to curtail the time for enforcement of the right but which provide for the forfeiture or waiver of the right itself if no action is commenced within the period stipulated by the agreement. Such a clause in the agreement would not fall within the mischief of section 28 of the Contract Act. To put it differently, curtailment of the period of limitation is not permissible in view of section 28 but extinction of the right itself unless exercised within a specified time is permissible and can be enforced. If the policy of insurance provides that if a claim is made and rejected and no action is commenced within the time stated in the policy, the benefits flowing from the policy shall stand extinguished and any subsequent action would be time barred. Such a clause would fall outside the scope of section 28 of the Contract Act. This, in brief, seems to be the settled legal position".

11. It was further held that " in the case at hand the complainant was required, in terms of clause 6(ii) of the general conditions of the policy, to prefer the claim within 12 calendar months from the date of the disclaimer or else the claim for all purposes was deemed to have been abandoned or the right extinguished and the liability ceased. The complainant's claim is deemed to have been abandoned on completion of 12 months from 8.10.2009 and it could not have been revived or extended by sending a legal notice. The complaint therefore, deserves to be dismissed, as not having being filed within the period stipulated by clause 6(ii) of the policy and as per law laid down by the Apex Court in various decisions cited herein above and ending with Himachal Pradesh State Forest Co.Ltd, (supra). As complainant has not filed complaint within period of 12 months from the date of repudiation of part of the claim, complaint filed by the complaint before State Commission was barred by limitation and complainant was not to get benefit of limitation provided under section 24(A) of Consumer Protection Act and learned State Commission has not committed any illegality in passing the impugned order and appeal is liable to be dismissed".

12. Such a condition or clause in the policy has been held to be valid by Hon'ble Supreme Court in HP State Forest Company Ltd Vs. United India Insurance Co.Ltd, 2009(2) CLT 19.

13. So from the law laid down by Hon'ble National Commission and Hon'ble Supreme Court in the above cited authorities, it is clear that the above said condition no.7 in the policy in question is valid and as present complaint was not filed within one year of repudiation of claim by opposite parity No.1 insurance company, as such the present complaint is time barred and liable to be dismissed as such.

14. In view of above discussion, the present complaint is dismissed being time barred with no order as to cost. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

18.12.2014 Member President