Ram Kumar Malik vs Oriental Insurance Co. Ltd

V.K. Jain, J

The complainant / petitioner owned a truck which he had got insured with the respondent. The said truck allegedly left Delhi loaded with the goods on 21.2.2009. The goods were to be taken to Ambikapur and Raigarh in Chhattisgarh. When the truck did not reach its destination, the petitioner / complainant wrote a letter to SHO, Jahangirpuri, Delhi intimating him that the truck had not reached its destination. The said letter was delivered to the SHO on 01.3.2009. No FIR on the said letter was registered. The complainant / petitioner therefore sent a letter to the concerned DCP on 09.3.2009, expressing his grievance in the matter. The FIR was eventually registered on 01.5.2009 but the name and particulars of the driver were not disclosed in the FIR. The goods being carried in the truck are stated to have later been recovered by the police but the truck could not be recovered.

The intimation of the theft of the truck was not given to the insurer for almost five months, the same having been given only on 28.7.2009. Vide letter dated 07.3.2011, the insurer intimated the petitioner as under:

"The case documents provided by you primarily pertains to the goods recovered after the theft and its investigation but the status of stolen truck or role of driver is not clear in said investigation. Kindly send the documents with regard to the status of the truck and river Shri Arun Soni either by the way of untraced report of police investigation.

Kindly note that if we will not receive documents as requested above within seven days form the date of receipt of this letter, we shall presume that you are not interest in the above claim and we shall be most reluctant compelled to close the claim file as NO CLAIM."

Since the claim was not paid, the petitioner approached the concerned District Forum by way of a consumer complaint filed on 24th January, 2015.

The complaint was resisted by the insurer on several grounds, including delay in lodging of FIR and delay in intimating the loss to the insurer.

The District Forum having dismissed the complaint, the petitioner approached the concerned State Commission by way of an appeal. The said appeal also having been dismissed, he is before this Commission by way of this revision petition.

It would be seen from the letter dated 07.3.2011, sent by the insurer to the petitioner that he was clearly intimated that if the documents sought by the insurer were not submitted within seven days, it will be presumed that he was not interested in the claim and the insurer would be compelled to close the file as "No Claim". Admittedly, neither any document was submitted nor any communication was sent by the complainant to the insurer, after receiving the aforesaid letter dated 07.3.2011. Therefore, the cause of action to file the consumer complaint arose to the petitioner / complainant on 14.3.2011 on expiry of seven days from the letter dated 07.3.2011. The consumer complaint therefore, ought to have been instituted by 14.3.2013. The complaint however, came to be instituted only in January, 2015 after delay of more than one year and ten months. Though, in view of the proviso to Section 24A(2) of the Consumer Protection Act, the District Forum could have entertained the complaint even after expiry of the prescribed period of limitation, provided that any justification for condonation of the said delay was shown, no application for condoning the same delay was filed before the District Forum, despite the delay being more than 1 ½ years. Therefore, the State Commission, in my opinion were justified in dismissing the complaint as barred by limitation.

It is submitted by the learned counsel for the petitioner that the issue of limitation was not raised by the insurer in its written version. It however, make no difference since it is the duty of every Court / Forum to take note of the period of limitation prescribed by law and consumer complaint, which is barred by limitation cannot be entertained unless the delay in instituting the complaint is condoned for adequate reasons. A reference in this regard can be made to the decision of the Hon'ble Supreme Court in State Bank of India Vs. B.S. Agricultural Industries (I) II (2009) CPJ 29 (SC), where the Hon'ble Supreme Court inter-alia held as under:-

"7. Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:

"24A. 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 Sub-section (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 Forum, as the case may be, records its reasons for condoning such delay."

It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, 'shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside."

The limitation apart, there is abnormal delay of about five months in intimating the loss to the insurer. No explanation was given by the petitioner for such abnormal delay in intimating the loss to the insurer. Though, the petitioner had been writing letters to the police officers right from 01.3.2009, he did not bother to intimate the insurer for more than four months, the said intimation having been given only on 28.7.2009. The said delay in the absence of a satisfactory explanation constitutes breach of mandatory term of the insurance policy and therefore, the claim is liable to be rejected for this reason as well.

For the reasons stated hereinabove, the concurrent view taken by the fora below does not call for any interference by this Commission in exercise of the its revisional jurisdiction. The revision petition being devoid of any merit is hereby dismissed.