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2001 DIGILAW 103 (HP)

NATIONAL INSURANCE COMPANY LTD v. BUDH RAM

2001-05-28

A.K.GOEL, NARINDER SINGH THAKUR, SAROJ SHARMA

body2001
ORDER: Consumer Protection Act 1986- Insurance- appellant purchased buffalos with financial help from Bank and insured for a sum of Rs.17, 000/- buffalo died on 20.5.2003- Insurance policy was in force on the said date- Insurer paid only a sum of Rs. 13,000/- to the Bank-Claim for remaining amount of Rs. 4000/- - Neither any averment made in the complaint to the effect that appellant was compelled to accept the lesser amount nor any evidence produced - appeal dismissed. Cases referred: (1) Kerala Agro Machinery Corporation Ltd. Vs. Bijoy Kumar Roy and others (2002) 3 Supreme Court Cases 165. (Para-5) Advocate(s):-Mr. Jagdish Thakur Advocate for the petitioner. Justice Arun Kumar Goel (Retd.) President (Oral): Facts ass are made out from the record of this case are that the respondent No.1 had got one buffalo insured with the appellant in the sum of Rs. 10,000/-. It was financed by Respondent No.2 bank. This buffalo died on 18.3.2001. According to respondent No.1, he had lodged the claim with the appellant for being indemnified with respect to of the sum assured. Buffalo being insured is not in dispute. However, claim was contested on a number of pleas, including on the ground that the complaint being time barred In this behalf certain dates need to be noted. 2. Insured Buffalo died on 18.3.2001 claim was repudiated by the appellant vide Annexure RW/1 on 28.5 2001, Photostat copy of the repudiation letter, and addressed to the financier i.e. Respondent No.2 Bank and its copy was endorsed to respondent No. 1. This complaint out of which this appeal has arisen is dated 11.3.2004. Where as complaint had to be filed within 2 years form the date on which the cause of action has arisen to a litigant like respondent No.1 Cause of action, it is well known constitutes of bundle of facts. Initially it arose in favour of respondent No.1 on 18.3.2001 when the insured animal died and lastly for filing the complaint it finally arose on 28.5.2001, when the financier RW/1 was informed of repudiation, with copy of this letter endorsed to the respondent No.1. This being the date of repudiation of the claim of the respondent No.1 is not in dispute. Therefore, as per section 24-A of the Consumer Protection Act, 1986 the complaint should have been filed by or before 27.5.2003. This being the date of repudiation of the claim of the respondent No.1 is not in dispute. Therefore, as per section 24-A of the Consumer Protection Act, 1986 the complaint should have been filed by or before 27.5.2003. In case it was field beyond that date, then under Sub section 2 of Section 24-A (supra), respondent No.1 as complainant should have satisfied the District Forum below, that he had sufficient cause for filing the same within the prescribed time, and on being satisfied by a reasoned order delay in filing the appeal could be condoned. 3. A perusal of the file of the District Forum below shows that these facts are there on record and the appellant in paragraph 2 of the preliminary objections in reply to the compliant had specifically pleaded that complaint was time barred. Unfortunately, this aspect of the case has not been gone into its right perspective for the District Forum below. It was submitted by Mr. Thakur on behalf of the appellant that on the basis of the facts as set out in the complaint and therefore, on the basis of record complaint should have been dismissed by the District Forum below. 4. In the complaint there is not a murmur as about the delay in filing the complaint, though in his affidavit filed by way in evidence respondent No.1 attempted to explain the delay, but attributers it on account of the conduct of the appellant as well as respondent No.2 the financier bank. 5. This supports the sub mission of Mr. Thakur that the complaint should not have been entertained at all and according to him District Forum fell into grave error. That being the position we are of the view that complaint should not have been entertained, as on the fact of it, the same was barred by time and was thus not entertain able. For taking this view reliance is placed on a decision of the Honble Supreme Court of India in the case of Kerala Agro Machinery Corporation Ltd. Vs. Bijoy Kumar Roy and others (2002) 3 Supreme Court Cases 165. Relevant a paragraph of this judgment are extracted there below. "8. We find that the question of limitation ahs not been considered seriously at any stage. There is no dispute that the claim petition was barred by limitation. Bijoy Kumar Roy and others (2002) 3 Supreme Court Cases 165. Relevant a paragraph of this judgment are extracted there below. "8. We find that the question of limitation ahs not been considered seriously at any stage. There is no dispute that the claim petition was barred by limitation. The National Commission has only observed that that delay was due to the assurances given by the dealer to get the defects rectified, but surprisingly no letter has been particularly indicated in the order much less with limitation , by which liability may have been acknowledged by the appellant. The Commission further observed that "at this stage", there could not be any question of interference with the order of the State Commission on the point of limitation. There seems to be no justification for negating the plea of limitation with cursory and passing observations. The question of stage of the proceedings has no relevance so far as the question of limitation is concerned,. The claim has been field beyond the period of limitation, say more than four years after defects were pointed out. 6. Learned counsel appearing for respondent I also could not indicate anything or had document to show that the^ complaint was filed within time. We agree with the submissions made on behalf of the appellant that the claim of respondent I was not interminable by the District Consumer Forum being barred by limitation. 7. In the result the appeals are allowed and the judgment and orders passed by the District Forum, the State Commission and the National Commission are set aside and the clam of the claimant-Respondent 1 is rejected". 9. No other point is urged. 10. In view of the aforesaid discussion, this appeal deserves to be allowed as the complaint was time barred on the basis of the facts pleading in it and District Forum below fell into error in passing the impugned order holding the appellant liable for payment of amount in question. There is nothing on record to suggest that any steps under Section 24-A (2) of the Consumer Protection Act, 1986 were initiated by respondent No.1 for condonation of delay in filing the complaint. There is nothing on record to suggest that any steps under Section 24-A (2) of the Consumer Protection Act, 1986 were initiated by respondent No.1 for condonation of delay in filing the complaint. Since appeal has been allowed, therefore, as a result of it order dated 8.3.2006 in complaint No. 33/2004, passed by District Forum Shimla, Camp at Nahan is hereby quashed and set aside and the complaint filed by respondent No.1 stands dismissed. Leaving the parties to bear their own costs.