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2007 DIGILAW 215 (UTT)

SURINDER SINGH v. NEW INDIA ASSURANCE CO. LTD.

2007-04-24

IRSHAD HUSSAIN, SURENDRA KUMAR

body2007
ORDER (Per: Justice Irshad Hussain, President) This is complainant’s appeal against the order dated 03-03-2006 passed by the District Forum, Chamoli dismissing the consumer complaint no. 13/05 as being barred by time. 2. Complainant purchased insurance policy for his truck from New India Assurance Co. Ltd. During the period of insurance, truck met with an accident on 24-08-2000 in district- Chamoli. Claim preferred was repudiated on 04-06-2001. Complainant filed complaint before the District Forum, Dehradun on 21-06-2001 but the same was dismissed on 03-07-2002 for want of territorial jurisdiction. Complainant preferred revision no. 5/2002 before the State Commission, Dehradun and the same was dismissed on 01-11-2002. Aggrieved by the order a revision was filed before the National Commission. Here also the plea of the complainant was not accepted and the revision was dismissed on 06-12-2004. Certified copy of the order of the National Commission was issued on 11.01.2005 as is evident from paper numbers 29 to 31. Consequently, complainant had to file consumer complaint before the District Consumer Forum, Chamoli, Gopeshwar having territorial jurisdiction in the matter. Insurance Company raised preliminary objection that the complaint is time barred. The District Forum by the order impugned accepted the plea by observing that the complaint had been filed after a delay of three months even after excluding the period during which the complainant proceeded with his complaint in the Consumer Forum without jurisdiction and the revision petitions before the State and the National commissions. It also observed that no formal application for condonation of delay was filed and further, that the complainant made no averment in the complaint so as to disclose sufficient cause and seeking condonation of delay. 3. We have heard the learned counsel for the parties and perused the material on record in the light of the legal aspect of the case. It need to be stated at outset that Sec. 24A of the Consumer Protection Act, 1986 provide limitation period for a consumer complaint. It reads as under :- “Limitation period – (1) 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. It reads as under :- “Limitation period – (1) 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. (2) Notwithstanding anything contained in subsection (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 Commission, as the case may be, records its reasons for condoning such delay”. From above it is evident that application for condonation of delay need not to be given separately and sufficient cause for not filing the complaint within the period prescribed may be stated or given and the prayer for condonation of delay may be made in the consumer complaint itself. The argument to the contrary by the learned counsel for the respondent based on the legal provision of Order 41 Rule-3A of the Civil Court Procedure can not be made applicable here in as much as the rule itself mandates that a separate application for condonation of delay in preferring the appeal has to be submitted. Therefore, the decision of the Hon’ble Supreme Court in the matter of R.C. Chaudhary vs M/s Prestige Finance and Chit Fund Co. Pvt. Ltd., AIR 1996 Delhi 382, is not applicable to the facts of the case. 4. It need to be stated that the District Forum took a correct view that the time during which the complainant was prosecuting earlier complaint and revisions before the State Commission and the National Commission may be excluded for computation of period of limitation. Exclusion of time of proceedings bona-fide in courts without jurisdiction provided by Sec. 14 of the Limitation Act, 1963 was made applicable to the proceedings under the provisions of Consumer Protection Act. It is however to be seem whether or not the view taken by the District Forum that the consumer complaint has been filed after a delay of about three months even on given above benefit is correct. 5. The cause of action to the complainant arose on 04.06.2001 on account of repudiation of his claim. It is however to be seem whether or not the view taken by the District Forum that the consumer complaint has been filed after a delay of about three months even on given above benefit is correct. 5. The cause of action to the complainant arose on 04.06.2001 on account of repudiation of his claim. From this date the complaint was required to be filed before the District Consumer Forum, Chamoli having jurisdiction in the matter within two years. Since complainant proceeded bona-fide in another Consumer Forum and before the State and the National Commissions, the time from 21.06.2001, when the first consumer complaint was filed up to 11.01.2005, when the certified copy of the order of the National Commission was issued to the complainant need to be excluded. This period was three years and one hundred ninety five days. Learned counsel for the complainant-appellant submitted that the period of limitation for filing a consumer complaint as provided under Section 24-A of the Consumer Protection Act being two years, the total period allowed to the complainant to file a complaint was five years and one hundred ninety five days (2 years + 3 years & 195 days = 5 years & 195 days). The complaint before the Forum was filed on 07.03.2005 (Paper no. 12 to 14), hence according to the learned counsel, the complaint was filed in time after three years and seven months from 04.06.2001, the date of cause of action accruing to the complainant. The argument advanced is misconceived. The reason being that the computation of the period of limitation has to be made by deducting the total number of days of above bona-fide proceedings from the total number of days between the date of cause of action i.e. 04.06.2001 and the date of filing of the complaint i.e. 07.03.2005 before the District Consumer Forum having jurisdiction in the matter. On being counted the number of these days are 1368 and from these the days to be excluded are 1297 (21.06.2001 to 11.01.2005). Thus, the complaint was filed after a delay of 71 days (1368-1297 = 71) and the District Forum rightly held that the complaint was not filed within the period of limitation of two years. It is not very much material that the District Forum observed that the complaint was filed after a delay of three months. Thus, the complaint was filed after a delay of 71 days (1368-1297 = 71) and the District Forum rightly held that the complaint was not filed within the period of limitation of two years. It is not very much material that the District Forum observed that the complaint was filed after a delay of three months. At any rate the complaint was filed beyond period of limitation. 6. The complainant had neither satisfactorily explained the delay nor prayed for condonation of delay by way of averment in the complaint as well as affidavit filed in support thereof before the District Consumer Forum on 07.03.2005. Averment was made that the complainant came to know of the order of the National Commission (dated 06.12.2004, copy supplied on 11.01.2005) on 04.03.2005 through his authorised representative Shri H.L. Khanna, who had all along been doing pairavi on his behalf in earlier proceedings. This assertion is also contrary to the averment vide para XIV of the memo of present appeal and in which the period of limitation had been calculated as per above submission made at the time of arguments in the appeal. The District Forum also rightly observed that above delay in filing the complaint has not been explained at all. Therefore, the complaint was held barred by time and was dismissed accordingly per order impugned dated 03.03.2006. 7. For the reasons aforesaid, we do not find any merit in this appeal. The appeal is therefore dismissed. Costs easy.