Jammu and Kashmir

Jammu

CC/55/2017

TANVEER TRANSPORT - Complainant(s)

Versus

United India Insurance - Opp.Party(s)

SARFARAZ SHAH

19 May 2018

ORDER

DISTRICT    CONSUMER     DISPUTES   REDRESSAL  FORUM, JAMMU

                (Constituted under J&K Consumer Protection Act,1987)

                                                         

 Case File  No               28/DFJ         

 Date of  Institution     08-05-2017

 Date of Decision          08 -05-2018

 

Tanveer Transport Co.

Through its Prop.Farayad Khan,

Yard No.1 Shop No.87,Transport Nagar,

Jammu.

                                                                                                                                          Complainant

                      V/S

Divisional Manager,

United India Insurance Co.Ltd.

Opposite Convent School,

Gandhi Nagar Jammu D.O.1,Jammu.                                                                                                                                                                                     Opposite party

CORAM:-

                  Khalil Choudhary (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                Member

                  Mr.Ghulam Sarwar Chauhan                            Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr.Sarfraz Shah,Advocate for complainant, present .

Mr.Ajay K.Gandotra,Advocate  for OP,present.

 

                                          ORDER

             

                         Facts relevant for the disposal of complaint on hand are that; complainant being owner of vehicle(Truck),bearing registration No.JK02AL-5917,got the same comprehensively insured with OP,vide Policy No.11060031090100002205,Cover Note No.436283 w.e.f.,24-06-2009 to 23-06-2010(Annexure A).That the vehicle of  complainant, met with accident at Kala Bakra Jalandar under the jurisdiction of Kartarpur and FIR dated 28-03-2010 was registered with the Police Station,Kartarpur(Annexure-B). Submission of complainant is he submitted insurance policy to the office of OP for making payment of compensation to him, but OP did not pay any compensation to him. That the surveyor of OP also visited the spot of accident and assess the loss of the vehicle, as a result of this accident major part of the vehicle was damaged and on the instruction of OP the vehicle was repaired from Fair Deal Motors & Workshop Pvt.Ltd. and the complainant paid an amount of Rs.7,01,201/-to Fair Deal Motors & Workshop Pvt.Ltd. for repairing the vehicle,(Copy of estimate bill is enclosed as Annexure-C).Allegation of complainant is that no steps have been taken by, despite number of representations made by him for payment of compensation and amount spent for repairing the vehicle and this act of OP constitutes deficiency in service and unfair trade practice. In the final analysis, complainant prays for indemnity to the tune of Rs.7,01,201/-alongwith interest @ 12% per annum  and in addition, prays for compensation to the tune of Rs.95,000/-including litigation expenses.

                On the other hand,OP filed written version and resisted the complaint on the ground that the complaint is hopelessly barred by time ,as vehicle bearing registration No.JK02AL-5917 was insured vide Policy No. 11060031090100002205 for the period commencing from 24-06-2009 to 23-06-2010 and as per FIR,the said vehicle suffered damage on,28-03-2010,the claim was registered under No.1106003110C000014822 and said claim was closed on,02-02-2012,the intimation of which was conveyed to insured M/S Tanveer Transport Company,thus,if at all, the complainant claims that a cause has accrued to it, though it is being not contended as such in the complaint, the same was required to have been lodged/filed within a period of two years, thus this complaint is not maintainable and is liable to be dismissed. The OP further submitted that the complainant has not chosen to question the order dated 02-02-2012 carryign reference No.1492 whereby claim of complainant stands closed. That complainant despite being reminded numerously failed to provide cash memo bills, final bills, load challan,route permit and also did not produce the vehicle for re-inspection after repair and thus for having not meted the  requirement, the company absolved itself from any liability arising out of the claim having closed the claim for the aforesaid reason and for the reason that there were discrepancies in the factual facts as projected for claiming the loss and it was for this reason, noted as Wrong Nature of Loss, the claim was closed.

                      Before touching the nub of controversy, it would be proper to deal with the preliminary objection raised by OP to the maintainability of complaint on the point of limitation.

                         Admittedly, insured vehicle met with accident on, 28-03-2010 and complaint on hand is filed on, 08-05-2017.

                          Specific plea raised by OP is that claim lodged by complainant is closed on, 02-02-2012 and same has been intimated to complainant. Thereafter, complainant filed his own duly sworn evidence affidavit, but did not depose in his evidence affidavit that he has no knowledge of repudiation or he did not receive intimation to that effect, therefore, defence raised by Op that claim stand closed on 02-02-2012 and same has been duly intimated to complainant went unchallenged and unrebutted from complainants side.

                         Since there is no challenge to the version of OP that claim stand closed on,02-02-2012 and same has been duly intimated to complainant, therefore, we have no hesitation in holding that cause of action arisen to complainant on,02-02-2014,whileas,in terms of Section 18-A of Consumer Protection Act,1987,complainant was required to file complaint within two years from the date of cause of action arisen to him, however, complaint on hand is filed by complainant,on,08-05-2017,i.e. about almost  three years after the period of limitation, for which there is no explanation tendered by complainant. Therefore, we are of the opinion that instant complaint is barred by limitation, therefore, same is not maintainable.

                Section 18-A of Consumer Protection Act,1987 is envisaged as under

          18-A.Limitation period.

1. The {District Forum}or the State Commission may not admit a complaint unless it is filed within two years from the date on which the cause of action arises.
2. Notwithstanding anything contained in sub-section (1),a complaint may be entertained after the period specified in sub-section (1) if the complainant satisfies the {District Forum}or the State Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.

Provided that no such complaint shall be entertained unless the {District Forum}or the State Commission, as the case may be, records its reason for condoning such delay. We are fortified in our view by the law laid down by   Honble High Court in Oriental Insurance Company Ltd.& Ors.V/S Ghulam Nabi Shah(2012 (1) SLJ 83), while dealing with the scope of Section 18-A of Consumer Protection Act, held that cause of action to lay claim for reimbursement of loss before the Insurance Company and cause of action to file a complaint alleging deficiency in service are two distinct causes and may not necessarily synchronize. In the case before Honble High Court, insured house and household goods gutted down in a fire mishap during intervening night of 12/13 December,1994 and Honble High Court after holding threadbare discussion on the scope of Section 18-A of Consumer Protection Act, in paras 17 & 18 while remanding the matter held:-

       17.The cause of action to lay claim for reimbursement of loss before Insurance Company and cause of action to file a complaint alleging deficiency in service are two distinct causes and may not necessarily synchronize.However, any discussion on this aspect of the case is rendered pure evidence and unnecessary in view of law laid down by the Supreme Court in Kandimalla Raghalah and Company Vs.National Insurance Company and Another (2009)7,Supreme Court cases 768,it has been held:

        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 indifferent 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 actionis cause of action which gives auction for and forms the foundation of the suit.(See Sidramappa V/S Rajashetty 4).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.

     18.In view of the authoritative pronouncement, notwithstanding the above discussion, the cause of action in the present case is to be held to have accrued to the respondent to file a complaint before the commission on 13^th December 1994.The respondent, in the circumstances was to file a complaint alleging deficiency in service before the Commission by or before 12^th December 1996.The respondent instead has approached the Commission with a complaint on 27.04.2001.The complaint obviously was beyond the period prescribed under Section 18-A of the Act, and the respondent had to make out sufficient cause for not filing the complaint within the prescribed time. Conversely the State Commission was required to look into the question of sufficiency of cause in not filing the complaint within the prescribed time and in the event Commission was of the opinion that a sufficient cause was made out for not filing the complaint within the aforesaid time, the Commission in terms of proviso of Section 18-A, was duty-bound to record its reason for condoning such delay. In the case in hand perusal of order impugned reveals that though Commission has taken notice of the circumstances that led to delay in filing the complaint and lamented over inaction and apathy of the officers of the appellant Insurance Company, yet the Commission has not gone into the question of sufficiency of cause projected in the complaint, for not filing it within the prescribed time and resultantly the Commission has not recorded reasons in terms of Section 18-A proviso for condoning the delay.

                          Therefore, in view of settled preposition of law, cause of action accrued to complainant on,02-02-2014 and in terms of Section 18-A of Consumer Protection Act,1987,complainant was required to file complaint within two years from the date of cause of action arisen to complainant,however,as against it, complainant filed complaint on,08-05-2017,i.e.much beyond the limitation period,therefore,complaint is hopelessly time barred, same is dismissed.

                      In afore quoted back drop, complaint is hopelessly time barred, accordingly, same is dismissed.However,in the facts and circumstances of the matter parties are left to bear their own costs. File after its due compilation be consigned to records

Order per President                                          Khalil Choudhary

                                                                   (Distt.& Sessions Judge)

                                                                           President

Announced                                               District Consumer Forum

 08 -05-2018                                                        Jammu.

 

Agreed by                                                                

                                                                           

Ms.Vijay Angral                                              

 Member    

 

Mr.Ghulam Sarwar Chauhan,

Member                                                                                         

.