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2011 DIGILAW 106 (JK)

Oriental Insurance Company Limited & Ors. v. Ghulam Nabi Shah

2011-03-11

HASNAIN MASSODI, J.P.SINGH

body2011
Per Massodi, J. 1. The Civil 1st. Appeal, in hand, is directed against the order dated 14th July 2009 of Jammu and ashmir State Consumer Disputes Redressal Commission, in Complaint No. 18 of 2001 titled Ghulam Nabi Shah v. Oriental Insurance Company and others, whereby the Commission has directed Oriental Insurance Company Limited-appellant herein, to pay art amount of Rs. 3,55739/- along-with interest of 18% per anum from the date of loss till final payment along-with litigation expenses ofRs. 10,000/-. 2. The appeal arises in the following factual background; The respondent in the year 1994 insured his house situated at Nazuk Mohalla, Anantnag, and the house hold goods with the appellant Insurance Company vide Insurance Policy No. 11/05/00542, valid with effect from 12th July 1994 to 11th July 1995 for an amount of Rs. 4.50 lacs. The insured house and the household goods gutted down in a fire mishap during the intervening night of 12/13 December 1994. The occurrence prompted Police Station Anantnag to register case-FIR No. 388 of 1994 under Section 435 RPC. The respondent, immediately after the occurrence, informed the appellant Insurance Company about the loss. On receipt of report, the Surveyor was deputed for spot inspection. The respondent took all neces­sary steps to enable the Insurance Company to settle his claim. The appel­lant Insurance Company however, avoided to settle the claim leaving no option for the respondent, but to approach Jammu and Kashmir State Consumer Disputes Redressal Commission (hereafter "Commission") Srinagar with a complaint alleging deficiency in service, on part of the appellant Insurance Company. The respondent laid claim to an amount of Rs. 4.50 lacs on account of loss suffered along-with interest at the rate of 18% per anum from the date of fire incident i.e. 13th December 1994 till its payment. 3. The complaint was resisted by the appellant Insurance Company on the grounds that the complaint was belated and filed beyond period of two years prescribed under Jammu and Kashmir Consumer Protection Act (hereinafter "the Act"). It was insisted that the respondent failed to explain and justify delay in approaching the Commission. The appellant Insurance Company next contended, that the respondent lacked cause of action to file the complaint in as much as intimation of loss was neither received by the appellant Insurance Company nor the subject claim registered in its office. It was insisted that the respondent failed to explain and justify delay in approaching the Commission. The appellant Insurance Company next contended, that the respondent lacked cause of action to file the complaint in as much as intimation of loss was neither received by the appellant Insurance Company nor the subject claim registered in its office. The appellant Insurance Company denied all the factual averments made in the complaint and in its para-wise reply reiterated its stand that while loss was said to have occurred to the insured building in the year 1994, the respondent slept over the matter for next seven years and approached the Commission only in the year 2001, and that on this count alone the complaint was liable to be dismissed. 4. The Commission on going through the complaint, the written version as also the evidence brought on the file, held the respondent to have proved his case by convincing evidence and found no substance in the case set up by the appellant Insurance Company in opposition to the complaint. The Commission accordingly proceeded to accept the complaint and directed the appellant Insurance Company to reimburse the respondent loss suffered by him on account of damage to the building and house hold articles assessed at Rs. 3,55739/. 5. The order of the Commission impugned in the appeal is questioned on the following grounds:- I. That the Commission has not correctly decided the question of limitation as the respondent though having filed complaint after a gap of seven years did not come up with any explanation as regards delay in filling the complaint and the Commission in absence of any explanation on behalf of the respondent ought to have dismissed the complaint as time barred. II. That the appellant Insurance Company deputed M/S. S.H.Kannan & Company for survey and estimate of loss and M/S. Jehlum Investigating Private Service limited, for conducting the investigation of the claim only after the appellant Insurance Company received a notice from the Commission. Insisting that the respondent had taken no steps to approach the appellant Insurance Company, for deputing a Surveyor, it is contended that the facts put to-gather are indicative of delay and lachs on part of the respondent. III. Insisting that the respondent had taken no steps to approach the appellant Insurance Company, for deputing a Surveyor, it is contended that the facts put to-gather are indicative of delay and lachs on part of the respondent. III. That the postal receipts appended to the complaint bear the date of dispatch as 12.01.2002 making it clear that the process for assessment and recovery of loss was initiated by the respondent in the year 2001, and that the respondent had taken no steps till said date, to lay claim for reimbursement of loss. IV. That, as it was not possible for the Surveyor to assess loss of house-hold goods, seven years after the fire incident, it was not proper for the the Commission to direct payment of Rs. 80,000/- on account of loss of house hold goods and the order impugned was thus bad in law and liable to be set aside. V. That the Commission awarded interest at the rate of 9% per anum on the assessed amount from the date of loss till its final realization unmindful of the fact that the respondent had failed to prove that the respondent had taken steps for appointment of Surveyor and to provide documents to the appellant Insurance Company well in time. VI. That the Commission did not draw adverse inference against the respondent for his failure to examine Sh. P. A. Bhat deputed by the appellant Insurance Company for survey and assessment of loss, in as much as Shri P. A. Bhat if examined would have deposed regarding non-cooperation on part of the respondent in assessment of the loss well in time. VII. That the Commission acted beyond jurisdiction while holding the officials liable for delay in dealing with the respondent's claim. 6. We have gone through the memorandum of appeal as also the Commission record and have heard Learned Counsel for the parties. 7. Though the appellant Insurance Company has spread out its case into sub-para's (a) to g) para 4, yet the weft and warp of the appellant Insurance company's case is woven around question of limitation. It is insisted that the complaint being time barred, the Commission ought to have dismissed the com­plaint on the ground of inordinate and unexplained delay, without going into the merits of the case. 8. It is insisted that the complaint being time barred, the Commission ought to have dismissed the com­plaint on the ground of inordinate and unexplained delay, without going into the merits of the case. 8. Perusal of record reveals that case set up by the appellant Insurance Com­pany in its written version before the Commission was that neither loss was intimated to it by the respondent nor was any claim registered with its office. The appellant Insurance Company denied to have received information regarding the fire mis-hap and loss to the insured property. It even feigned ignorance regarding the communication addressed to it, by the Superintendent of Police and Assistant Director Fire Services Anantnag pertaining to the fire mis-hap, in question. The stand taken before the Commission was that the respondent had taken no steps to intimate loss, and submit necessary documents or to get Surveyor appointed till the respondent all of a sudden filed the complaint before the Commission on 27th April 2001 and that it was only after the complaint was filed that the appellant Insurance Company became aware of the fire incident. The appellant Insurance Company building up its case on the so called slackness on the part of the respondent challenged his right to file a complaint after a gap of seven long years and that to without any explanation to justify the delay. 9. The appellant Insurance Company has made a complete U-turn in its stand in the present Civil 1st. Misc. Appeal. It is admitted that the respondent laid a claim for indemnifying his loss, with the appellant Insurance Company on 13.12.1994; that on 18.12.1994, Syed Irfan Alam Bhat, was deputed for preliminary inquiry and on 28.12.1994 Shri P.A. Bhat, was deputed for investigation of the claim. It is thus abundantly clear that the averments made in the written version before the Com­mission were false and vexatious to the knowledge of the appellant Insurance Company. It, while admitting that the loss was reported by the respondent on the very next day of occurrence and that Surveyor and Investigator for preliminary survey and investigation of claim put forth were deputed, cannot accuse the respondent of having slept over the matter. It, while admitting that the loss was reported by the respondent on the very next day of occurrence and that Surveyor and Investigator for preliminary survey and investigation of claim put forth were deputed, cannot accuse the respondent of having slept over the matter. The respondent, as admitted by the appellant Insurance Company had done his part of duty immediately after the occurrence and once the preliminary steps were taken, it was for the appellant Insurance Company to take the process of assessment, evaluation and reimbursement of loss, to its logical end. If the appellant Insurance Company has failed to take forward and conclude the process, it cannot turn around and accuse the respondent of negligence or laches. The facts and events, as a matter of fact indicate that it is the appellant Insurance Company that has slept over the matter and is guilty of insensitivity and negligence. Having said so, let us go to the main controversy involved in the appeal. 10. It is submitted by Learned Counsel for the appellant Insurance Company that the cause of action to file complaint accrued to the respondent on 13th December 1994 when loss was intimated to the appellant Insurance company; that the respondent was to file complaint under Jammu and Kashmir Consumer Protec­tion Act, 1987, before the Commission within a period of two years from 13.12.1994 and that complaint filed on 27th April 2001, was palpably time barred. Section 18-A of the Act, relevant to the controversy, needs to be noticed, it reads: 2[18-A. Limitation Period (1) The Divisional 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 Divisional 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 Divisional Forum or the State Commission, as the case may be, records its reason for condoning such delay.] 11. A bare look at the above "provision" reveals that two years period is prescribed for filing a complaint before the Divisional Forum or State Commission as the case may be from the date on which "cause of action arises" It further empowers the Divisional Forum or State Commission to entertain a complaint even after the period of two years if satisfied that the complainant had "sufficient cause" for not filing the complaint within the prescribed time. 12. What is the date of "accrual of cause of action" in case of an Insurance claim?. Is it when loss to the property occurs is intimated, or the date when the Insurance Company refuses to reimburse loss/indemnify the insured? These are the questions that, in the facts and circumstances of the present case, assume importance. 13. It is a fact of common knowledge that once loss is reported to Insurance Company, the Insurance Company because of preliminary steps and procedural wrangles-like appointment of surveyor for preliminary survey, investigation of the claim, appointment of Surveyor for regular/comprehensive survey, takes quite some time-two to three years in some cases, to complete the process of assessment of loss and thereafter to reimburse the loss assessed. 14. In case, cause of action is said to accrue to an insured to approach the Divisional Forum or State Commission, with a complaint alleging deficiency in service within two years from the date of loss, an insured, aggrieved with deficiency in service would not be in a position to press into service quick and hassle free grievance redressal system envisioned by Jammu and Kashmir Consumer Protec­tion Act, 1987. In each and every case the Insurance Company after sleeping over the matter and delaying settlement of claim for more than two years shall come up with the plea, that the complaint is time barred. 15. The object of Jammu and Kashmir Consumer Protection Act 1987, like other such legislation, as set out in the preamble of the Act, is to better protect interests of consumers and to set up authorities for the settlement of disputes and matters connected therewith. The object is to protect and promote the rights and interests of the consumers and to make available a speedy and cost free mechanism for redressal of their grievances. The object is to protect and promote the rights and interests of the consumers and to make available a speedy and cost free mechanism for redressal of their grievances. If Section 18-A of the Act, is interpreted the manner suggested by the Learned Counsel for the appellant, the Act, may become mean­ingless and beyond reach to a good number of consumers-insured property owners in the present case. Further more an insured can complain of deficiency in service only after service is not provided despite long interval between date of loss/intimation of loss and filing of the complaint and he cannot be expected to foresee deficiency in service at the very outset when loss is intimated. 16. 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 synchronise. However, any discussion on this aspect of the case is rendered pure academic and unnecessary in view of law laid down by the Supreme Court in Kandimalla Raghaiah and Company v. National Insurance Company and Another (2009) 7, Supreme Court cases 768. It has been held; 17. 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 action" is cause of action which gives occasion for and forms the foundation of the suit. (See Sidramappa v. 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 13th December 1994. 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 13th December 1994. The respondent, in the circumstances was to file a complaint alleging deficiency in service before the Commission by or before 12th 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. 19. It would be in the interest of justice to remand the matter to the Commission with a request to deal with the question whether the respondent had a "sufficient cause" for not filing the complaint within the prescribed time and return its finding in the matter in accordance with Section 18-A of the Act. 20. For the reasons discussed, the appeal is allowed and the order of the Commission 14th July 2009 set aside. The complaint is remanded to the Commission with the request to consider whether the respondent had a "sufficient cause" within the meaning of Section 18-A of the Act, for not filing complaint within the prescribed time, and record a finding thereon. The Commission thereafter having regard to the finding returned, shall pass order in accordance with law.