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2011 DIGILAW 107 (JK)

Oriental Insurance Company Limited and others v. Ghulam Nabi Shah

2011-03-11

HASNAIN MASSODI, J.P.SINGH

body2011
Massodi, J.:- The Civil 1st Appeal, in hand, is directed against the order dated 14th July, 2009 of Jammu and Kashmir 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 an amount of Rs. 3,55,739/- along with interest of 18% per an­num from the date of loss till final payment along with litigation expenses of Rs. 10,000/-. 2. The appeal arises in the following fac­tual background. 3. 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. 11/5/00542, 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 p.ompted Police Station Anantnag to regis­ter case-FIR No. 388 of 1994 under S. 435, R. P. C. 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 down to an amount of Rs. 4.50 lacs on account of loss suffered along with interest at the rate of 18% per annum from the date of dire incident i.e. 13th De­cember, 1994 till its payment. 4. The complaint was resistsed 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 (hereainafter "the Act"). It was insisted that the respondent failed to explain and jus­tify delay in approaching the Commission the appellant Insurance Commission next contended, that the respondent lacked cause of action to file the complaint inasmuch as intimation of loss was neither received by the appellant Insurnace 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 Commission next contended, that the respondent lacked cause of action to file the complaint inasmuch as intimation of loss was neither received by the appellant Insurnace 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. 5. 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. 3,55,739/-. 6. 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. Jhelum 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 together are indicative of delay and laches 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 together are indicative of delay and laches 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 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 annum 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-co-operation 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. 7. We have gone through the memoran­dum of appeal as also the Commission record and have heard Learned Counsel for the par­ties. 8. 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. 9. 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. 9. 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 too without any explanation to justify the delay. 10. 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. 11. 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 ISA 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 sub­section (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.) 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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 : 2010 AIR SCW 2528. It has been held : 18. 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 ISA 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. Appeal allowed.