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Judgment
This appeal has been filed under section 19 of The Consumer Protection Act, 1986 in challenge to the Order dated 19.06.2019 of the State Commission in complaint no. 08 of 2019.
We have heard the learned counsel for the appellant (the ‘insurance co.’) and for the respondent (the ‘complainant corp.’) and have perused the record.
The chronology in brief is that the complainant corp. took an insurance policy i.e. Contractors All Risk (CAR) Policy from the insurance co. which was valid from 03.07.2013 to 02.07.2014. During the subsistence of the policy a bailey bridge was washed away on 13.08.2013. The complainant corp.’s claim was repudiated by the insurance co. vide its letter dated 09.12.2013 on ground that it was not maintainable (Therefore, your claim pertaining to damage to Bailey Bridge due to cloudburst on 13/08/2013 is not maintainable and stands repudiated). The complainant corp. had protracted correspondence and meetings with the insurance co. including writing to its chairman-cum-managing director seeking his intervention. The insurance co. vide its letter dated 05.03.2018 informed the complainant corp. that its claims stands closed as ‘no claim’ (We once again inform you that captioned policy was issued covering only road works and loss to Bailey Bridge does not falls under scope of captioned policy and hence your claim pertaining to loss to bailey bridge due to cloud burst on 13.08.2013 stands closed as ‘No Claim’).
The complainant corp. filed a complaint before the State Commission. The insurance co. raised a preliminary objection on limitation. As pleaded by the rival sides before the State Commission, reckoning from 05.03.2018 the complaint was within the prescribed two-year limitation period but reckoning from 09.12.2013 it was delayed by 971 days. The State Commission held that that there was sufficient cause to condone the delay of 971 days in filing the complaint (In view of above stated facts it is held that there are sufficient cause for condonation of delay of 971 (Nine Hundred Seventy One) days in filing consumer complaint.). It condoned the delay subject to cost of Rs.25,000/- to be paid by the complainant corp. to the insurance co. (- - - application filed for condonation of delay of 971 (Nine hundred seventy one) days in filing consumer complaint is allowed - - - subject to payment of costs to the tune of Rs.25,000/- (Twenty five thousand) by applicant to non-applicants.).
Learned counsel for the insurance co. submits that the claim was repudiated on 09.12.2013. The complaint was barred by limitation with delay of 971 days. Sufficient cause to condone the delay was not forthcoming. He also submits that there is dichotomy on the State Commission’s Order as on the one hand it is finding sufficient cause to condone the delay and on the other hand it is simultaneously also imposing cost for condoning the delay which was not required if sufficient cause was emanating. Submission is that sufficient cause to condone the delay was not at all forthcoming and also that the inner-contradiction in the State Commission in concomitantly imposing cost cannot be sustained.
Learned counsel for the complainant corp. draws attention to extracts from its application for condonation of delay which had been filed before the State Commission. The same are being reproduced below for reference:
That the vide letter dated 09/12/2013 the OP No. 2 had informed the complainant in response to the claim filed by the complainant that they have received the pre inspection report of the surveyor appointed by the OPs and in view of this report all bridges and culverts are not covered under scope of this policy and hence your claim is not maintainable. The copy of the letter dated 09/12/2013 is annexed herewith as Annexure A-1. After receipt of this letter the complainant had wrote a letter dated 21/12/2013 to the OP No. 2 contending there in that the road from Garsa to Sheelgarh was covered under the scope of the said policy and exclusion of Bridges and Culverts from the scope of said policy has not been mentioned in the policy issued by your office and requested him to settle the claim as per the terms and conditions of the Insurance Policy. Apart from this the complainant had also wrote two letters dated 19/02/2014 and 07/04/2014 with a similar request to settle the claim at the earliest. The copies of the letters dated 21/2/2013, 19/02/2014 and 07/04/2014 are annexed herewith as Annexure A-2 (Colly). In response to these letters on 19/08/2014 the non applicant rejected the claim of the applicants by saying that bridges and civil works associated with it, are not covered by the policy and the same was received by the office of the applicant on 21/08/2014 thereafter After receipt of this letter the Applicant had taken the matter with the Divisional Office of Insurance Company vide letter No. 724-27 dated 03.09.2014 and letter No. 765-68 dated 13.09.2014 to review the decision and settle the claim in terms of CAR Policy at the earliest. The copies of the letter dated 19/08/2014 and 03/09/2014 and 13/09/2014 are annexed herewith as Annexure A-3, A-4, A-5 respectively for the kind perusal of this Hon'ble Commission.
That it is further submitted that the Applicant/Applicant vide its letter dated 12.12.2014 has taken up the matter with the OP No.1 i.e Chairman cum Managing Director of Insurance Company with a request to intervene in the matter and direct the concerned officials to review their contention and settle the claim of the Applicant at the earliest. The copy of the letter dated 12/12/2014 is annexed herewith as Annexure A-6. It was further requested to Dy. General Manager, Chandigarh Regional Office of OP Company vide letter 16.02.2015. The copy of the letter dated 16/02/2015 is annexed herewith as Annexure A-7.
Thereafter, a meeting was also organized with the OP's at their Regional Office Chandigarh on 23.02.2015 for early settlement of claim. Subsequently, requisite information was furnished to Insurance Company letter dated 18.03.2015. The copy of the letter dated 18/03/2015 is annexed herewith as Annexure A-8. In response to this the Regional Office, Chandigarh of Insurance Company referred the matter to Mandi Branch to look into the matter with the terms and conditions of Insurance Policy.
Thereafter, the matter was taken up with the Divisional Office, Mandi vide letters dated 27.03.2015, 09.04.2015 and 09.05.2015 for early settlement of claim. That the copies of the letter dated 27/03/2015 and 09/04/2015 is annexed herewith as Annexure A-9, A-10 & A-11 respectively. That the Applicant submitted the Insurance claim along with all the requisite documents with the OPs at Chandigarh Branch on 19.06.2015 when the meeting was held at the Regional Office Chandigarh. In response, it was intimated by the regional office Chandigarh of Insurance Company vide email dated 22.07.2015 that the matter has been referred to the divisional Office Mandi vide letter dated 19.06.2015 to provide the same to surveyor for consideration. Thereafter, Divisional Manager, Mandi vide letter dated 13.08.2015 was asked the status of the claim submitted by him and expedite the matter. In response, Divisional Manager, Mandi vide letter dated 17.08.2015 has again stated that the claim of the Applicant is not covered under the scope of Insurance Policy. The copy of letter dated 17/08/2015 is annexed herewith as Annexure A-12. Subsequently, the Applicant has requested Divisional Manager, Mandi to comply with the instructions of their Regional Office, Chandigarh to settle the claim in terms of policy at the earliest.
Thereafter, the Applicant requested to Dy. General Manager, Chandigarh Regional Office vide letter dated 31.10.2015 to intimate the status of the settlement of claim and intervene in the matter to settle the claim of the Applicant. Subsequently, a meeting was also held with Divisional Manager, Mandi on 15.12.2016 to expedite the settlement of claim.
That the Applicant has pursued the Non Applicants/OP persistently and has sent various communications to insurance company vide letters dated 13.05.16, 11.07.2016, 16.09.2016, 09.11.2016, 30.12.2016, 02.02.2017, 02.03.2017. 26.04.2017, 15.06.2017 and 18.08.2017 requesting the Non Applicant/OP no. 1 to release the claim of the applicant strictly in terms of the policy. It is further submitted that during meetings/discussions the officials of insurance company at various levels, assured the Applicant that is insurance claim will be reviewed according to the terms and conditions of the policy and any others survey will be deputed for review of the claim, but neither other surveyor has been deputed nor the claim has been reviewed/settled by the insurance company till date. The copies of the letters dated 13/05/2016, 11/07/2016, 16/09/2016, 09/11/2016 30/12/2016, 02/02/2017, 02/03/2017, 25/04/2017, 15/06/2017 and 18/08/2017/ and 20/02/2018 is annexed herewith as Annexure A-13 (Colly). In response to this the Non Applicant/OP No. 2 vide letter dated 05/03/2018 finally repudiated the claim of the Applicant by saying that the policy was issued covering only Road works and loss to Bailey Bridge does not fall under the scope of captioned policy and hence your claim pertaining to loss to bailey bridge due to cloud burst on 13/08/2013 stands closed as "No Claim." The copy of the letter dated 05/03/2018 is annexed herewith as Annexure A-14. As such if actually the period of limitation may be taken from last letter dated 05/03/2018 of the non applicant whereby the insurance company had repudiated the claim by saying "No Claim then in that eventuality the complaint is well within the period of Limitation as prescribed in the Consumer Protection Act, 1986, but if the cause of action will be presumed from date of first letter vide which the Non Applicant No. 1 had rejected the claim i.e. 09/12/2013 than the complaint is barred by days. However, from the bare perusal of the language of letter dated 05/03/2018 it is clear that the OPS had finally repudiated the claim of the applicant on 05/03/2018 and the applicant was under this impression that the claim was repudiated by the non applicants vide letter dated 05/03/2018 and in view of this the office of the applicant has intimated the higher authorities about the rejection of the claim and thereafter immediately sent the file to Corporate office, Faridabad for obtaining necessary approvals and legal opinion and subsequently the case file was routed through various channels.
Learned counsel submits that, as is well-evident from a mere perusal of the facts and circumstances narrated in the application, sustained and continuous correspondence, meetings and follow-up was made by the complainant corp. with the insurance co. subsequent to the latter’s initial letter of 09.12.2013 intimating that the claim was not maintainable. So much so that various meetings were held with its senior officers and intervention of its chairman-cum-managing director was also sought. He submits that the correspondence and interactions came to an end on 05.03.2018 when the insurance co. closed the matter declaring the claim as ‘no claim’. The complainant corp. then immediately took the requisite legal advice and the competent administrative decision to file a complaint before the State Commission. Counting from 05.03.2018 the complaint was well within limitation. However, even if reckoned from 09.12.2013, when the insurance co. informed that the claim was not maintainable, sufficient cause to condone the delay was very much forthcoming. Learned counsel emphasizes that it cannot be left remediless and helpless when it had diligently followed-up the matter with the insurance co. on a continuous basis without any undue efflux of time and finally on finding the latter’s adamant intransigence beyond cure or persuasion had immediately sought remedy before the State Commission. Learned counsel further submits that when sufficient cause to condone the delay was readily seen by the State Commission it ought not to have imposed cost of Rs.25,000/-.
We note that after the repudiation of its claim on 09.12.2013 on ground that it was not maintainable, the complainant corp. went into protracted and continuous correspondence as well as meetings with the insurance co. to resolve the matter. It also sought intervention of the insurance co.’s chairman-cum-managing director. Ultimately the chapter was closed vide the insurance co.’s letter dated 05.03.2018 and the complainant corp. then immediately filed its complaint before the State Commission after taking legal advice and competent approval. We find no reason or good ground to disagree with the State Commission that this entire chronology most obviously and justifiably constituted sufficient cause to condone the delay in accordance with sub-section (2) of section 24A of the Act 1986. We also see that the State Commission has given its reasons for condoning the delay in accordance with the proviso to sub-section (2) of section 24A.
Even by taking the harsher view, that the cause of action arose on 09.12.2013 when the insurance co. initially repudiated the claim, there was sufficient cause to condone the delay in filing the complaint. And, as already observed above, the State Commission has rightly condoned the delay with reasons given. As such the other question inherent, that whether the cause of action arose on 05.03.2018 when the correspondence and interactions finally closed, is only of academic interest and we feel no need in the present context to enter into the same as in either contingency the complaint will require to be decided on its merits.
We agree with both learned counsel that if sufficient cause to condone the delay was visible in the facts and circumstances of the case, there was hardly any need to impose cost. But that part of its Order having been passed by the State Commission in exercise of its judicious discretion, we hesitate to intrude into it moreso as it has not been appealed by the complainant corp.
Sequel to the above, the appeal is dismissed with the observation that in the facts and circumstances of the case there was sufficient cause to condone the delay in filing the compliant. Needless to add, the State Commission shall decide the case on its merits as per the law.
The parties shall appear before the State Commission on 29.05.2023.
The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel immediately. It is also requested to forthwith communicate this Order to the State Commission by the fastest mode available. The stenographer is requested to upload this Order on the website of this Commission immediately.