Order-18.
Date-03/05/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in short, is that the complainant availed of financial assistance from Allahabad Bank, S.B. Gorai Road, Asansol Branch for his refractory bricks manufacturing unit under the name and style M/s. J.K. Ceramies. As per terms and conditions of sanction of the loan dated 23-12-2006 the total assets to be insured in full value under Bank’s Corporate Agency. OP accordingly issued two numbers of insurance policies being no.2913/50392770/00/000, period of coverage 20-01-2011 to 19-01-2012 for Rs.20 lakhs and 2114/50392889/01/800 from 20-01-2011 to 19-01-2012 for Rs.30 lakhs, risk covered stock in trade and the nature of policy is Burglary Standard Fire and Special Perils. In the copy of sanctioned letter dated 23-12-2006 issued by the financing banking under the head Security (B) Half of Factory Land, Building P & M and other fired assets of the Unit. It is stated that during the existence of the said insurance policies a theft of stealing of some articles from the factory premises occurred on 03-11-2011 in the midnight by some miscreants. Accordingly an FIR was lodged by the complainant with the Asansol (N) P.S. on 08-11-2011 after giving verbal intimation on the next day of theft. On receipt of the complaint the authority of Asansol (N) P.S. vide Case No.215/11 dated 08-11-2011 started investigation u/s.379 I.P.C. and submitted Final Police Report. In terms of the aforesaid policy No.2913/50392770/00/000 covering agreed bank clause, the stolen Articles consisted of 2 numbers of electric motors, 5 numbers of hand mould and 7 numbers of ceiling fans as reported to the police authority are covered as per policy stock in trade. The complainant also submitted all the related papers, documents in connection with the claim No.CL11027878 vide registered post on 27-01-2012 to the OP in response to the letter of the OP having reference No.DKS 144/2011-212 dated 21-11-2011. The complainant alleges that OP without verified and/or examining the above mentioned two number of insurance policies have illegally and motivatedly repudiated the claim vide letter dated 19-06-2012 stating that the claimed items are not covered within the subject matter ‘stock in trade’ under the subject policy no. and tactfully mentioned therein the reference of another policy No.2114/50392778/01/800 which clearly covers the risk of fire bricks as stock in trade and the policy was insured for Rs.30 lakhs and the complainant also states that in reply to registered letter dated 19-06-2012 and 02-06-20913 OP vide letter dated 03-07-2015 has tactfully reported and confirmed the same reason beyond repudiating the claim on the same reason. It is alleged that the burglary policy No.2913/50392770/001/800 issued by the OP neither disclosed the covered items under stock-in-trade nor any such list of covered items are annexed to the policy. Complainant has also alleged that the complainant requested OP vide legal notice on different dates to furnish a copy of authenticated list of covered items as incurred under the above mentioned policies but OPs has not furnished such list. It is alleged that OP has tactfully and cleverly repudiated the genuine claim of the complainant. Hence, this case.
OP has contested the case in filing written version contending, inter alia, that the complaint is hopelessly barred by limitation u/s.24A of the C.P. Act. It is stated that incident of theft occurred on 03-11-2011 but the complainant filed the instant case on 23-09-2016.
It is also alleged that the complaint is not maintainable since the alleged loss is not covered under the terms and conditions of the burglary policy being no.2114/50392778/01/B00 valid from 20-01-2011 to 19-01-2011 issued by the answering OPs. As per the policy, item which is covered is stock-in-trade, however, as per the complaint, two numbers of electric motors, five numbers in moulds and seven numbers of ceiling fans were stolen from the factory which do not come under the stock in trade and as per the policy the ‘stock-in-trade’ is fire bricks and hence, the complainant is not liable to get any claim or compensation. It is also stated that the insured cannot claim anything more than what is covered by the insurance policy. It is also stated that insured cannot claim anything more than what is covered by the insurance policy. It is also alleged that the alleged incident of theft took place on 03-11-2011 but the complainant alleged the FIR at Asansol Police Station on 08-11-2011 that is after a lapse of 4 days. The complainant intimated the said incident to the OP and submitted the claim under policy no.291350392770/01/B00. On receipt of the claim OP appointed an IRDA licensed surveyor Mr. Dilip Kumar Saha to carry out the survey on 29-06-2012. This answering OP repudiated the claim of the insured by their letter on the ground that “claim items” are not covered within the subject matter of “stock-in-trade” under the policy. The OPs have stated that the claim of the complainant is baseless and is liable to be rejected.
Point for Decision
- Whether the case is barred by limitation?
- Whether the OP has been deficient in rendering service to the complainant?
- Whether the OP has repudiated the claim illegally or arbitrarily?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have perused the documents on record, i.e. Xerox copy of sanctioned letter of Allahabad Bank dated 23-12-2006, Xerox copy of burglary policy, Xerox copy of letter dated 21-11-2011 asking for required papers and documents in connection with claims, Xerox copy of letter dated 27-01-2012 relating to submission of papers and documents in connection with the claim, Xerox copy of burglary claim application form, Xerox copy of FIR, Xerox copy of final report, Xerox copy of repudiation letter dated 19-06-2012, Xerox copy of legal notice dated 07-09-2015, Xerox copy of legal notice dated 05-10-2015, Xerox copy of legal notice dated 02-02-2016, Xerox copy of legal notice dated 21-06-2016 as filed from the side of the complainant.
We have also perused the documents filed from the side of the OP i.e. Xerox copy of burglary policy schedule, Xerox copy of repudiation letter dated 19-06-2012, Xerox copy of literature of burglary insurance policy, Xerox copy of statement of fires as on 31-03-2010, Xerox copy of Trading, Profit & Loss A/c. for the year ended 31-03-2011, Xerox copy of computation of income for the assessment year 2011-12, Xerox copy of bills in respect of Ceiling Fans, Motor hand-mould, etc., Xerox copy of seizure list, Xerox copy of repudiation letters dated 18-05-2012 and 19-06-2012, Xerox copy of Advocate Letter dated 09-07-2012, Xerox copy of letter of OP dated 02-04-2013 confirming the repudiation, Xerox copy of survey report etc.
It appears that the complainant availed burglary policy being no.2913/50392770/01/B00 valid from 20-01-2011 to 19-01-2012 issued by the insurance company. A theft was committed on 03-11-2011 in the insured premises and some unknown miscreants committed theft of two numbers of electric motors, 50 numbers of hand-mould, 7 numbers of ceiling fans from the factory shed situated at Monohar Bohal, Asansol. Insurance Company as we find appointed an IRDA Licensed Surveyor to carry out the survey. According to the terms and conditions of the insurance policy the terms which are covered is stock-in-trade and as per the policy stock-in-trade was fire bricks only and on 19-06-2012 the insurance company repudiated the claim of the insured vide their letter on the ground that claim items are not covered within the subject matter of the stock in trade under the said policy. The said letter as we find is dated 19-06-2012. The repudiation as we find is also based on the report of the surveyor to the effect that the policy bears to have covered the stock in trade but the loss has taken place to electrical items and not to land and machineries. We find that complainant also served legal notice upon the OP and the OP finally vide a letter dated 02-04-2013 stated that claimed items are not covered within the subject matter of stock in trade under the said policy and hence, subject claim could not be considered and is treated as repudiate. We find that the cause of action arose within two years from 02-04-2013.
According to Section 24A . “
- The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
- 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, the State Commission or the National 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 National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay”.
We find that complainant slept over the matter and did not move for filing the case within the period of limitation. We, however, find that some legal notices were sent to the OP long thereafter in the year 2015 and 2016. It is a truism of law that legal notices cannot extend time [2015(1) CPR 823 NC relied upon]. The instant case has been filed after a lapse of more than 3 years. So, we think that the instant case is hopelessly barred by limitation u/s.24A of C.P. Act. Moreover, the incident of theft took place on 03-11-2011 and the FIR was lodged on 08-11-2011 i.e. after a lapse of 4-5 days. The delay in lodging the FIR is not also explained before us. The mere sending of periodical reminder/legal letters does not cover the period of limitation.
We have no hesitation in holding that the complaint filed on 07-09-2016 and that too without any application of condonation of delay is manifestly, hopelessly barred by limitation for the foregoing reasons.
The instant case is barred by limitation as per Section 24A of C.P. Act.
We do not take up the other issues on merit since in our opinion the case is time barred.
Consequently, the case merits no success.
Hence,
Ordered
That the instant case be and the same is dismissed on contest against the OP on the point of maintainability.
We make no order as to cost.
