O   R   D   E   R

 (Per Ms. Savita G. Kurtarker, Member)

This Order shall dispose of the Complaint filed by the Complainant against the Opposite Party.

The brief facts of the case are as under:

1. The Complainant had insured his House bearing No. 717 situated at Vidyanagar, Margao by obtaining a householders insurance policy

bearing No. 120601/48/01/01364 from the Opposite Party. The policy was issued on 29.01.2002 and was valid for the period from 31.01.2002 to midnight 30.01.2003.

1. On 03.10.2002 the lightening struck to the said house of the Complainant thereby causing damages to the supporting beams, wooden rafters, ribs and tiles which resulted in the collapse of the beams and roof of the kitchen of the said insured house and after a week’s time due to seeping of rain water roof also collapsed.

1. Vide letter dated 04.10.2002 the Complainant informed about the incident to the Opposite Party and requested the Opposite Party to register the claim and to depute a surveyor to excess the loss caused to the said house of the Complainant.

1. The Complainant deputed one carpenter Shri Shashikant Chari and had obtained the estimate of the damage caused to the said house to the extent of Rs. 43,860/-.

1. The Opposite Party appointed their official surveyor and loss assessor M/s. P.A. Balagi and Associates to survey and assess the loss caused to the house by lightening and rain. The survey was conducted on four different occasions i.e. on 08.10.2002, 11.10.2002, 16.11.2002 and 30.03.2003.    The report dated 05.05.2003 bearing No. MRG/003/03-04 was prepared and in the said report, net liability of the Opposite Party was shown to the extent of Rs. 28,265/-.

1. The Opposite Party also appointed Investigating Agency M/s. Fact Finders to investigate into the claim of the Complainant.  The Chief Investigator of  the  Investigating Agency  M/s. Fact  Finders  Mr.

Mathew Pires conducted the investigation and recorded the statements of the witnesses and submitted the report vide reference No. FF/UI/BRA/MAR/791/02/03 dated 28.02.2003 concluding that the loss did occur on 03.10.2002 due to lightening and not due to poor maintenance of the building.

1. After submission of above two reports the Regional Office at Mumbai of the Opposite Party appointed M/s. S.B. Nalluri & Associates to carry out an investigation into the matter and the said M/s. S.B. Nalluri submitted their report under reference No. SBNA/UIIC/874 dated 08.09.2003.  The said report states that the loss is not due to the lightening but due to the ageing of timber beams.  That the Opposite Party vide their letter bearing No. DO/96/03 dated 25.11.2003 repudiated the claim of the Complainant on the ground that it does not fall within the scope of Standard Fire and Allied Perils Policy.

1. The Complainant stated that the Complainant was sick and was bed ridden and so he requested  telephonically to issue him copies of the three reports submitted by the surveyors appointed by the Opposite Party.  However, no copies of the reports were given to the Complainant and he was orally informed by Divisional and Branch Manager that the  report of M/s. S.B. Nalluri & Associates is taken into consideration to repudiate the claim of the Complainant.

1. The Complainant vide letter dated 09.08.2004 requested to furnish the copy of the three reports and the Divisional Manager of the Opposite Party vide his letter dated 01.09.2004 refused to furnish the copies of the report.  Again the Complainant vide letter dated 10.07.2006, under Right to Information Act 2005 addressed a letter to the Opposite Party to furnish the copies of the three reports to him.

1. Vide letter dated 21.07.2006 the Opposite Party furnished the copies of the three reports to the Complainant.  However, did not give any reason for not furnishing the said report earlier. 

1. Vide letter dated 06.09.2006 addressed to the Chief Regional Manager of the Opposite Party, the Complainant requested to settle the claim.

1. The Complainant again addressed a notice dated 30.08.2008 to the Manager, Grievance Cell, Chennai with a request to settle the claim.  The Complainant by another letter dated 28.01.2009 addressed to the Chief Regional Manager, Mumbai and then by another letter dated

20.05.2009 addressed to the Manager, Grievance Cell at Head Office Chennai reminded to consider his claim.

1. The Complainant received a letter on 23.02.2010 alongwith copy of  letter of the Regional Grievance Redressal Committee to repudiate the claim of the Complainant as per decision of  D.O. Margao.  Hence the present complaint with the following prayers:

(a) By Order and Judgment the Opposite Parties be directed to pay to the Complainant a sum of Rs. 1,43,860/- alongwith interest @ 18% per annum.

(b) By order and judgment the Opposite Party be directed to pay to the Complainant damages to the tune of Rs. 1,00,000/-.

(c) Costs of the Complaint be allowed.

(d) Other and further orders be passed as deemed fit and proper

1.  The Complainant filed xerox copies of the following documents:                       
   1. Insurance Policy bearing No. 120601/48/01/01364 dated 29/01/2002.
   2. Letter from the Complainant dated 04.10.2002
   3. Estimate issued by Chari
   4. Report vide Ref. No. UI-MRG/003/03-04 dated 05.05.2003
   5. Report vide Ref. No. FF/UI/BRA/MAR/791/02-03 dated 28.02.2003
   6. Report under Ref. No. SBNA/UIIC/874 dated 08.09.2003
   7. Letter bearing No. DO/96/03 dated 25.11.2003

1. Letter by Complainant to Opposite Party dated 09.08.2004
2. Letter by Divisional Manager dated 01.09.2004
3. Letter by Complainant under Right to Information Act dated 10.07.2006
4. Letter by Opposite Party to the Complainant dated 21.07.2006
5. Letter by Complainant to the Chief Regional Manager of the Opposite Party dated 06.09.2006
6. Notice by Complainant to the Manager Grievance Cell, Chennai dated 30.08.2008
7. Letter by Complainant to the Chief Regional Manager, Mumbai dated 28.01.2009
8. Letter by Complainant to the Manager, Grievance Cell, at Head Office, Chennai dated 20.05.2009
9. Letter of Mumbai Office of the Opposite Party dated 19.01.2010
10. Letter by Opposite Party to the Complainant dated 19.02.2010

1. The Opposite Party was served, filed written version and raised the following preliminary objections:
   1. That the complaint is hopelessly barred by law of  limitation.
   2. The complaint is mis-conceived and not tenable in law under section 12 of the Consumer Protection Act 1986.
   3. The complaint involved complicated questions of facts which are to be decided in proper adjudication by the Civil Court.
   4. There is no deficiency-in-service.

1.  The Opposite Party also denied during the validity period of the said policy that there was heavy rainfall, thunder, storms and lightening in the State of Goa.

1. The Opposite Party also denied the estimate of alleged damage caused to the house to the tune of Rs. 43,860/-.  The Opposite Party averred

that M/s. S.B. Nalluri & Associates has gone deeply into the details of the alleged incident on 03.10.2002 and after having firmly confirmed with the facts given in their report.

1. The Opposite Party also denied that the Complainant was sick and bed ridden and could not move out of the house as falsely alleged.

1. The Opposite Party denied all the allegations made in para 18 to 26 and prayed that the complaint be dismissed with costs.

1. We have gone through the complaint, written version, Affidavits-in-evidence of both the parties and also written arguments.  We heard ld. Advocate for both the parties.

1. While perusing the records we have observed that the Complainant has insured his house for a period from 31.01.2002 to 30.01.2003 with the Opposite Party.  We have observed that the Complainant lodged a claim with the Opposite Party vide letter dated 04.10.2002 of the Complainant.  Upon receipt of that letter from the Complainant the Opposite Party registered a claim and appointed their official surveyor and loss assessor M/s. P.A. Balagi & Associates to survey  and assess the loss caused to the said house.  According to the surveyor report  Shri B.P. Balagi  conducted the survey on four different occasions i.e. on 08.10.2002, 11.10.2002, 16.11.2002 and lastly on 30.03.2003 and prepared his report vide reference No. UI/MRG/003/03-04 dated 05.05.2003 and assessed the net liability of the Opposite Party to the extent of Rs. 28,265/-.

1. Thereafter the Opposite Party appointed another Investigating Agency M/s. Fact Finders to investigate into the claim of the Complainant.  The said M/s. Fact Finders also submitted their report and arrived at the conclusion that damage was caused to the house on account of lightening.  It is also observed that the Regional Office of Mumbai 

appointed S.B. Nalluri & Associates to carry out the investigation into the matter and the report of said Investigating Agency states that the loss is not caused due to the lightening but due to the ageing of timber beams.

1. The Opposite Party vide their letter bearing No. DO/96/03 dated 25.11.2003 repudiated the claim of the Complainant on the ground that the claim does not fall within the scope of Standard Fire and Allied Perils Policy.

1. We have observed that it is the case of the Complainant the reports were not furnished to the Complainant by the Opposite Party.  Therefore the Complainant vide his letter dated 09.08.2004 requested the Opposite Party to furnish the copies of the said three reports.  The Divisional Manager vide his letter dated 01.09.2004 refused to furnish the copies of the reports.  We have also observed that the copies of the reports were furnished to the Complainant on 21.07.2006 upon application made under Right to Information Act 2005.  We have also observed that thereafter the Complainant followed up his claim at Mumbai Office of the Opposite Party and the Complainant received a letter dated 19.01.2010 from the registered Office of the Opposite Party, Mumbai stating that the claim was reviewed by the Regional Grievance Redressal Committee and as per their opinion the  decision of  DO, Margao to repudiate the claim of the Complainant was found in order. 

1. While perusing the records and after hearing the parties, the main issue before us is whether the complaint is filed before the period of limitation as mentioned in section 24(a) of the Act.   It is an admitted position that the complaint was registered with the Opposite Party on 04.10.2002 and the Opposite Party vide their letter bearing No. DO/96/03 dated 25.11.2003 repudiated the claim of the Complainant after going through the reports of the three surveyors appointed by the Opposite Party.

1.  It is also an admitted position that the complaint dated 05.01.2011 is filed on 06.01.2011 which is beyond the prescribed time laid under Section 24A of the Consumer Protection Act.  The Complainant has given a reason for not filing the complaint within prescribed time as laid under section 24A that the Complainant was bed ridden and could not move out of the house to file the complaint.  However, the Complainant failed to satisfy us that he was bed ridden, as there is no piece of medical evidence brought on record to convince us or to show that he was bed ridden. So we cannot accept the statement that the Complainant was bed ridden and was restrained from filing the Complainant within two years from the letter of repudiation.

1.  We have observed that in order to bring the complaint within parameter of section 24A and to convince us that cause of action arose on 23.02.2010 the Complainant laid emphasis on the  letter dated 19.02.2010 of the Opposite Party.  We have gone through the said letter dated 19.02.2010 at page 89 of the record.  We have observed that the letter is from United India Insurance Company Ltd., Mumbai Regional Office No.II, Maker Bhavan No.I, Sir V.T. Marg., Mumbai 400 020 addressed to the Complainant whereby the Complainant was informed that as per their opinion the decision of the DO Margao Goa to repudiate the above claim was found in order.         

1. In view of above we are of the opinion that cause of action for filing  the complaint arose on the letter dated 25.11.2003 from the Opposite   Party informing that the claim of the Complainant is repudiated.  If the Complainant had to file the complaint, he should have done it within two years from the date of receipt of the letter dated 25.11.2003 from the Opposite Party and not from the receipt of letter dated 19.02.2010.     However, we find the Complainant has failed to do so. 

1. Further we have also noticed that after repudiation of the claim from the Opposite Party, the Complainant has taken steps and addressed

letter dated 10.07.2006 to furnish the copies to the Complainant.We find that the Complainant has not succeeded in giving any satisfactory reasons for not filing the present complaint within two years from the letter dated 25.11.2003.

1. According to the Complainant cause of action to file the complaint though arose first time when they received the letter dated 25.11.2003 for repudiation of the claim from the Opposite Party, however the contention is that the cause of action is continuous since they made a representation to the Regional Office of the Opposite Party at Mumbai.   According to the Complainant fresh cause of action arose for the Complainant to file the complaint only upon receipt of the letter dated 19.01.2010 from the Regional Office of the Opposite Party.    

1. In order to support his contention that the cause of action arose on 19.01.2010 the Complainant relied upon  the decision of the Hon’ble National Commission (2013) 4 CPR(NC)143 in Devender Singh V/s Oriental Insurance Company Ltd.  We have gone through the said judgment passed by the Hon’ble National Commission and found at para 6 of the said judgment that insurance claim of the petitioner was still under the consideration of the respondent and the claim was not repudiated. 

However, in the present case the facts differ.The claim of the Complainant is repudiated by letter dated 25.11.2003 and the same was not under consideration.However, we have observed that the Complainant suo-moto has started the correspondence with the Regional Office of the Opposite Party at Mumbai and the same cannot be considered as the claim of the Complainant was under consideration of the Opposite Party.Therefore this judgment cannot be applied to the present complaint.

1. The Complainant also relied upon the judgment reported in [2013] 1 CPR (NC) 488 in Prabodh J. Kothari V/s. Oriental Insurance Co. Ltd. and ors.  The facts of the present case does not apply to this judgment. The facts stated in the said judgment are the bundle of facts begin with the incident of burglary. In the said case there was partial acceptance together with substantial rejection of claim of the Complainant in the letter of repudiation issued by the Opposite Party.  The letter of repudiation was in the year 2006 and the date of loss/burglary took place in the year 2001.  Therefore the National Commission held that the period of limitation would run again from the date of repudiation in 2006 and would not remain confined to the date of loss in 2001. 

However, in the present complaint in hand the incident took place somewhere on 03.10.2002.The claim was registered with the Opposite Party on 04.10.2002.The repudiation letter of the Opposite Party was dated 25.11.2003.So it is clear that the cause of action will start from the date of letter of repudiation i.e. 25.11.2003. Therefore in our view the decision passed in Prabodh J. Kothari V/s. Oriental Insurance Co.Ltd. is not at all applicable to the present complaint under discussion.

1. Further in the said judgment of Prabodh J. Kothari v/s. Oriental Insurance Co. Ltd. (supra) the Hon’ble National Commission has explained the concept of recurring cause of action at para 8.  The said para is reproduced hereinunder:
   •  

The concept of recurring cause of action has been explained by the Apex Court in Raja Ram Maize Products vs. Industrial Court of M.P. and ors. 3 in the following terms:

1. . The concept of recurring cause of action arising in a

matter of this nature is difficult to comprehend.In Balakrishna Saalram Pujari Waghmare Vs. Shree Dhyanshwar Maharaj Santhan, AIR 1959 SC 798 it was noticed that a cause of action which is complete cannot be recurring cause of action as in the present case.When the workers demanded that they should be allowed to resume work and they were not allowed to resume work, the cause of action was complete.In such a case the workers going on demanding each day to resume work would not arise at all.  The question of demanding to allow to do work even on refusal does not stand to reason.”

 Therefore according to the contents of para 8 of the said decision the cause of action in the present complaint was completed on receipt of letter dated 25.11.2003 and there cannot be recurring cause of     action after that.

34.The Complainant also relied upon the judgment of the Hon’ble Supreme Court 2007(3) Supreme 372 between M/s. Transport Corporation of India Ltd. V/s. M/s. Veljan Hydrair Ltd.  In the said case the consignment was entrusted to the appellant on 10.05.1996.  On 08.11.1996, the respondent instructed the appellant to re-book the consignment.  On 08.08.1998, 13.10.1998, 07.11.1998 and 08.12.1998, the respondent demanded delivery.  By letters dated 15.12.1998,  21.06.1999 and 03.07.1999, the appellant assured the respondent that it was in the process of locating the goods and requested the respondent to wait and assured that it will inform about the status. Thereafter the appellant did not inform the status.  The complaint has been filed within two years from the date of receipt of the said letter dated 03.07.1999 and is in time. In fact in view of the request of the appellant to the respondent to wait till the consignment

      was traced, the limitation for an action would not start to run until there was a communication from the appellant either informing about

       the loss or expressing its inability to deliver or refusal to deliver, or until the respondent makes a demand for delivery or payment of value of the consignment after waiting for a reasonable period and there is non-compliance. Therefore, the complaint is not barred under section 24A of CP Act.

35.In the above cited judgment of the Hon’ble Supreme Court the appellant has assured the respondent vide their three letters dated 15.12.1998, 21.06.1999 and 03.07.1999 that it was in the process of locating the goods and requested the respondent to wait and assured that it will inform about the status.

However in the present complaint the Opposite Party has put an end to the claim of the Opposite Party saying that the claim is repudiated.  However, the Complainant himself  in the year 2004 started correspondence with the Regional Office of the Opposite Party at Mumbai.  It is not the case of the Complainant that the Opposite Party who asked him to follow up the matter with their Regional Office at Mumbai.  It is also not the case of the  Complainant that upon instruction from the Opposite Party further correspondence after repudiation of the claim was continued.  Therefore taking into account the conduct of the Complainant in the present complaint and all the above three judgments produced by the Complainant are not at all applicable to the present complaint.

 36. While deciding this complaint we shall reply on the judgment of our own Hon’ble State Commission passed in FA No. 54/2014 and FA 55/2014 in the case of Ms. Maria ZoraidaVas V/s. Manipal Finance Corporation Ltd. and Ms. Ana Rita Rosalia Sulochona Vas  V/s. Manipal  Finance  Corporation  Ltd. wherein it is held

      “that the object of fixing time limit for litigation is based on  public policy fixing a life span for legal remedy for the purpose of general welfare.  They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly.”

37. While disposing this present complaint we shall also rely on the decision of the Hon’ble National Commission in Devender Singh V/s. Oriental Insurance Co. Ltd. (supra). Para 8 of the said decision is reproduced hereinbelow:

   “8. We have considered the rival contentions.  On perusal it is seen that the State Commission in support of its conclusion has relied upon the judgment of the Supreme  Court.  Relevant portion of the order is reproduced thus:

    “The Hon’ble Supreme Court in case cited as Kandimalla Raghavaiah & Co. Vs. National Insurance Co. Ltd. & anr. relied upon its earlier decision in State Bank of India Vs. B.S. Agricultural Industries, JT 2009(4) SC 191 and in para  No.12 of the judgment held as under:

   12 .Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009(4) SC 191, this Court, while dealing with the same provisions, has held:

  8. It would be seen from the aforesaid provision that it is premptory 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 24A is sort of a legislative command to the consumer forum to examine on its own whether the  complaint  has been filed  within  the limitation

       period prescribed thereunder.  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 24A 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.”

38.Therefore we have come to the conclusion that the Complainant has miserably failed to satisfy us that the cause of action is continuous or recurring even after he has received letter of repudiation dated 25.11.2003 from the Opposite Party.

In view of above discussion and taking into consideration the above cited decisions we pass the following order:

O  R  D   E  R

The complaint is dismissed with no orders as to cost.

(Shri Jayant S. Prabhu)

                                  President

                                                          (Ms. Savita G. Kurtarker)

                                                                        Member

                                                                     (Ms. Cynthia A. Colaco)

                                                                                  Member