NEW INDIA ASSURANCE COMPANY vs MADAMANCHI RATTAIAH

THE New India Assurance Company Limited, the opposite party in the CD. No. 802/ 91 is the appellant in this appeal. THE complainant insured goods in his premises with the Insurance Companies, i.e. Full-pressed cotton bales with the Oriental Fire Insurance Company and Lint with the Opposite party i.e. the New India Assurance Company Limited. Fire accident took place on 15.8.1984 in which the pressed cotton bales as well as cotton lint were gutted. Both the Insurance Companies jointly appointed a Surveyor, M/s. Mehta and Padmasey. THE Surveyor assessed the total loss at Rs. 1,30,580/- and apportioned the liability equally between the two Insurance companies. THE opposite party paid its 50% share of liability of Rs. 65,290/ -. THE complainant signed Ex. B.-l, receipt, on 2.7.87 in favour of the claim in respect of cotton stocks damaged by fire on 15.8.1994. It is the case of the complainant that as the Oriental Fire Insurance Company informed the complainant that it was not liable to pay 50% of the loss, complainant sent a letter on 6.9.1989 to the opposite party to rectify the mistake in apportionment of the loss and for payment of the balance. THEreupon, the Manager referred the matter to the Surveyor for clarification. THE Surveyor, after examining the matter, sent a corrigendum on 17.11.89 admitting the mistake committed by him in apportioning the liability equally and correcting the same by apportioning the amount payable by the opposite party as 81.64% and the balance J by the Oriental Fire Insurance Company. Hence the complainant asked the opposite party to pay Rs. 41,314.00. As the opposite party failed to pay the same inspite of several notices and letters the complaint was filed for payment of the said amount with interest at 18% p.a.

THE Opposite Party did not dispute any of the aforesaid facts but opposed the claim on the ground that since the opposite party settled the claim after a thorough enquiry and a discharge voucher towards the full satisfaction was obtained on 2.7.1987. THEre is no deficiency of service and the complaint which was filed in the year, 1991 is barred by limitation. No oral evidence was adduced by both the parties. Exs. A-1 to A-4 on behalf of the complainant and Exs. B-l and B-2 on behalf of the opposite party were marked.

On consideration of the material available on record, the District Forum held that since the mistake was committed by the Surveyor in apportioning the compensation amount in his first report, he corrected the said mistake by his letter dated 17.11.1989. Therefore, according to the Surveyor''s letter, the Opposite Party is liable to pay 81.64% which works out to Rs. 1,10,323/-. The settlement arrived at on the basis of a mistake does not bind the complainant. It further held relying on Section 17 of the Limitation Act, 1963 that the period of limitation shall not begin to run until the mistake with reasonable diligence could have been discovered. It held that there is no reason for the complainant to doubt the correctness of the initial apportionment as both the Insurance Companies accepted. It was only, subsequently, when the Oriental Fire Insurance Company did not agree to pay 50%, the matter was referred to Surveyor and the mistake was rectified. It, therefore, held that the claim is not barred by limitation. Accordingly, the District Forum directed payment of Rs. 41314.00 with interest at 15% p.a. from the date of the complaint till the date of payment.

IN this appeal, the only contention raised is that the complaint is barred by limitation. According to the learned Counsel the limitation starts from the date of actual damage of from the date of refusal to pay. IN the instant case, the accident occurred on 15.8.1984 and the amount was paid under receipt Ex. B-1 dated 2.7.87 accepting full satisfaction from the complainant. Since the complaint was filed on 19.9.91. It is hopelessly barred by limitation. Reliance is placed on the decision in Jaheed Hussain v. M/s. Shah and Lohiya Auto Pvt. Ltd. & Others I (1991) CPJ 56=1991 (2) CPR 54 (NC) rendered by the National Consumer Disputes Redressal Commission. IN the said decision, it was held by the National Consumer Disputes Redressal Commission that the limitation for filing claim under the provisions is three years from the date of cause of action. As the defect of crack in the chasis was noticed in June, 1983, limitation of three years had to be computed from the date of notice. The defect was noticed in the chasis in June, 1983. It, therefore, held that the claim made in 1989 was barred by limitation. The aforesaid decision has no application to the facts of the instant case. IN the instant case, it was only when the Oriental Fire INsurance Company refused to pay 50% of the loss as apportioned by the Surveyor, the complainant addressed a letter on 6.9.1989 and on such letter the Surveyor corrected the mistake and sent corrigendum on 17.11.1989 and that the cause of action for claiming the amount in this complaint arose. Since the INsurance Company did not dispute the liability and paid the amount in accordance with the report of the Surveyor initially submitted, it cannot be said that it is a case of denial of payment from which date the period of limitation starts. On the other hand, the mistake was discovered subsequently, in 1989 and it was corrected by the Surveyor on 17.11.1989 and that, therefore, the period of three years should be construed from 17.11.89, and if so considered since the complaint was filed on 19.9.1991, it is well within the three years limitation period prescribed and it is not barred by limitation. Reliance is also placed on the decision in M. Salhi Manglore v. United INdia INsurance Company Limited, Mangalore, II (1991) CPJ 660 (NC)=1991 (2) CPR 441 (NC). IN that case a fishing vessel of the complainant insured with the opposite party had capsized and sank on 26.5.84. The INsurance Company repudiated the claim on 24.9.1986. The complaint was filed before the National Commission on 14.11.1990 i.e. after a period of three years from the date of accident and from the date of repudiation. A reference was made to under Art. 44-B of the Limitation Act. It was held under Art. 44-B of the Limitation Act that any action for enforcement of a claim for recovery from the insurer of an amount due on a Policy has to be instituted within three years from the date of the occurrence causing a loss or where the claim on the Policy is denied either partly or wholly, the date of denial. But the aforesaid decision has no application to the facts of the present case as the cause of action for claiming the amount of Rs. 41,314.00 arose only when the Surveyor discovered and corrected the mistake. Since the INsurance Company did not repudiate its liability and as the mistake came to light only in November, 1989 the complaint was filed within the time limit of three years from the date of cause of action. The Counsel for the appellant placed reliance on the decision in B.S. Sundravadivel Mudaliar and Sons v. Chairman Cum M.D. United INdia INsurance Company Limited. Madras . 1992 (2) CPR 606. IN the said decision it was held by the State Consumer Disputes Redressal Commission, Madras that where the complainant gave full and final discharge of his insurance voucher voluntarily, he is not entitled to claim more of alleged deficiencies. The aforesaid decision has no application to the facts of the instant case. IN this case, full and final discharge is based on the mistake committed by the Surveyor in apportioning the liability equally. The said mistake was subsequently corrected by the Surveyor by a letter of corrigendum dated 17.11.89. Since the said satisfaction memo is vitiated by mistake, the same is not binding on the complainant. Therefore, the full satisfaction memo is void because it was signed by the complainant under mistake and it is not binding on the complainant. IN our view the District Forum, rightly, applied under Art. 17 of the Limitation Act since it is a mistake which came to light later and the Surveyor corrected it, We are of the view that the claim is not barred by limitation. For all the aforesaid reasons, the appeal is dismissed but without costs. Appeal dismissed.