Haryana

StateCommission

A/1023/2015

ICICI LOMBARD GENERAL INS. - Complainant(s)

Versus

VIRENDER SINGH - Opp.Party(s)

N.K.SETIA

10 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :    1023 of 2015

Date of Institution:      01.12.2015

Date of Decision :       10.01.2017

 

ICICI Lombard General Insurance Company Limited having its registered office at The Statement, 4^th Floor, Plot No.149, Industrial Area, Phase-1, next to Hometel Hotel, Chandigarh (UT), through its Manager.

                                      Appellant-Opposite Party

Versus

 

Virender Singh s/o Sh. Ramphal, Resident of VPO Jasor Kheri, Tehsil Bahadurgarh, District Jhajjar, Haryana.

                                      Respondent-Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Argued by:          Shri N.K. Setia, Advocate for appellant.

                             Shri N.K. Malhotra, Advocate for respondent.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

          ICICI Lombard General Insurance Company Limited-Opposite Party No.1 is in appeal against the order dated September 8^th, 2015 passed by District Consumer Disputes Redressal Forum, Rohtak (for short ‘the District Forum’) whereby complaint No.245 of 2013 filed by Virender Singh-complainant-respondent, seeking benefits of insurance with respect to his truck which was stolen during the subsistence of insurance policy, was allowed. For facilitation, the operative part of the order is reproduced as under:-

“…it is directed that opposite party No.1 shall pay the insured declared value of vehicle i.e. Rs.8,00,000/- (Rupees eight lacs only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 02.08.2013 till its actual realization and shall also pay a sum of Rs2500/- (Rupees two thousand five hundred only) as litigation expenses to the complainant within one month from the date of completion of formalities by the complainant e.g. From No.26,28,29,30,35, Original R.C., Subrogation letter, Indemnity Bond and affidavit of transferee etc to the opposite party No.1 failing which the opposite party No.1 shall be liable to pay interest @ 12% p.a. on the awarded amount from the date of decision. Opposite party No.2 is also directed to issue the N.O.C. of the vehicle to the complainant. complaint is allowed accordingly.”      

2.                Truck bearing registration No.HR-63-1861 owned by complainant was insured with ICICI Lombard General Insurance Company Limited (for short ‘the Insurance Company’)-Opposite Party No.1/appellant for the period March 28^th, 2009 to March 27^th, 2010 vide Insurance Policy Exhibit C-2. The Insured Declared Value (IDV) of the truck was Rs.8.00 lacs. On July 4^th, 2009 the truck was stolen in the area of Sonipat. First Information Report (FIR) No.350 (Exhibit C-4) was lodged in Police Station Sonipat. The Insurance Company was also informed. The Police submitted untraced report which was accepted by Chief Judicial Magistrate, Sonipat vide order dated 3^rd February, 2011. Claim being filed, the Insurance Company repudiated the same vide letter dated 8^th June, 2010 (Exhibit R-2). Hence, complaint under Section 12 of the Consumer Protection Act, 1986 was filed before the District Forum.

3.                The Insurance Company contested complaint by filing written version raising plea that the complainant is not entitled to the benefits of insurance on account of violation of terms and conditions of the policy. It was stated that the truck was left unattended and that there was delay in lodging of the F.I.R. and giving intimation to the Insurance Company.

4.                On appraisal of the pleadings and evidence of the parties, the District Forum allowed complaint and directed the Insurance Company as detailed in paragraph No.1 of this order.

5.                Learned counsel for the appellant-Insurance Company assailed the order of the District Forum raising plea that the complaint was time barred because complainant’s claim was repudiated vide letter dated 8^th June, 2010 (Exhibit R-2) and complaint before the District Forum was filed on 2^nd August, 2013, that is, beyond the stipulated period of two years as stipulated in Section 24A of the Consumer Protection Act, 1986.

6.                The contention raised is not tenable. Indisputably, the untraced report submitted by the Police was accepted by Chief Judicial Magistrate, Sonipat vide order dated 3^rd February, 2011 (Exhibit C-5). In view of this, the repudiation letter dated 8^th June, 2010 has no relevance being prior to the date of untraced report. In paragraph No.4 of the complaint it has been specifically mentioned that after lodging of the claim, he kept visiting the Insurance Company for claim; however the officials of the Insurance Company kept the matter in abeyance and asked the complainant to produce untraced report which was accepted on 3^rd February, 2011 and the same was submitted to the Insurance Company but even thereafter it did not settle the claim. The plea raised by the opposite parties in their written version is that they have repudiated the claim on 8^th June, 2010 vide Exhibit R-2.

7.                On being confronted, learned counsel for the appellant-Insurance Company could not show the mode of dispatch or communication of the said letter Exhibit R-2. When the complainant has specifically stated that the Insurance Company did not settle the claim despite repeated visits, the contention of the appellant-Insurance Company that it was repudiated on 8^th June, 2010 and without showing the mode of communication of said letter, it is apparent that there was no such repudiation till the filing of complaint and therefore till the Insurance Company communicated the decision, it would be a continuing cause of action.

8.                In Devender Singh versus Oriental Insurance Company Limited, 2013(4) C.P.J. 607 (N.C.) Hon’ble National Commission held as under:-

“9.       The Supreme Court in the above noted judgment has interpreted the scope of Section 24A of the Consumer Protection Act. There can be no dispute regarding the legal position enumerated in the above judgment. The import of the said judgment is that a consumer complaint should be filed within two years from the date of accrual of cause of action. Thus, the crucial issue in this revision petition is as to when the cause of action has accrued. Admittedly, this is a case of insurance claim which was still under consideration of the insurance company. Therefore, till the insurance company had taken the decision on the complaint, the cause of action for filing the complaint continued. Therefore, in our considered view the State Commission has committed a grave error in holding that the complaint was barred by limitation. As such, the impugned order cannot be sustained.”

9.                In UNITED INDIA INSURANCE COMPANY LTD. & ANR. Versus R.PIYARELALL IMPORT & EXPORT LTD. 1(2010) CPJ 22 (NC), Hon’ble National Commission held as under:-

“Limitation – Time-barred – Insurance claim –Cause of action arises from date of repudiation of claim –Complainant’s claim neither rejected nor accepted –Cause of action continuous one –Complaint not time barred –maintainable.”

10.              Even otherwise, Hon’ble National Commission in Revision Petition No.2360 of 2012, Smt. Nirmla Devi vs. Dr. Sharda Dabas and others, decided on 5^th December, 2014 held that the Fora  even can suo moto condone the delay and observed as under:-

“3.     However, we have come across an authority by the Hon’ble Supreme Court in the case titled as A.T.S. Govindarajane Versus Chief Manager, State of India in Civil Appeal No.(s)10289 of 2014, where the delay of 149 days was condoned. It was held:-

“We have perused the impugned order and the orders passed by the State Consumer Disputes Redressal Commission and the District Consumer Disputes Redressal Forum. Having regard to the facts and circumstances of the case, keeping in view the object and intendment of the Act and the evidence adduced before the District Consumer Disputes Redressal Forum, Cuddelore and further in view of the decisions of this Court in the cases of Manoharan v. Sivarajan & Ors.,(2013) 14 SCALE 347 and State of Bihar & Ors. V. Kameshwar Prasad Singh & Anr.,(2000)9 SCC 94, the Commission ought to have entertained the petition accepting the reasons stated in the application for condonation of delay by considering the decisions of this Court referred to supra and have examined the merits of the case and disposed of the matter on merits.

In our considered view non-exercise of the discretionary power to condone the delay of 149 days in filing the revision petition against the order of the State Consumer Disputes Redressal Commission, Chennai render the order impugned erroneous in law”.

4.      In another case titled as, Taipan Traders Ltd. & Anr. Versus M/s Bhawani Cold Storage & Ors., the delay of 218 days was condoned by the Hon’ble Supreme Court in Civil Appeal No.5071/2014, decided on 19^th May, 2014”.

11.              In view of the facts and circumstances of the case and the legal position enunciated above, the contention raised by the appellant that the complaint was barred by time, is not available to the appellant-Insurance Company.

12.              Second limb of arguments was that there was delay of six days in lodging of the FIR and giving intimation to the Insurance Company. However, this delay has been satisfactorily explained by the complainant in the complaint itself and this fact has not been controverted by the appellant.

13.              In view of the above, there is hardly any ground to interfere with the order of the District Forum. Hence, the appeal fails. It is dismissed.

14.              The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 10.01.2017

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL