2021 Supreme(SC) 461

SUPREME COURT OF INDIA
HEMANT GUPTA, A.S. BOPANNA, JJ.
National Insurance Company Ltd. – Appellant
Versus
M/s. Hareshwar Enterprises (P) Ltd. and Others – Respondents
Civil Appeal No. 7033 of 2009
Decided On : 18-08-2021

IMPORTANT POINTS
(1) Consumer Forum is required to see before it admits complaint that it has been filed within two years from date of accrual of cause of action.
(2) Limitation – Cause of action will remain flexible to be gathered from bundle of facts arising in each case. It has not been laid in strait jacket.
(3) There is no need for NCDRC to pass any separate order at the outset to hold claim to be within limitation and then proceed when it is clear on fact of it.
(4) Approved Surveyor’s report may be basis or foundation for settlement of a claim by Insurer in respect of loss suffered by insured but such report is neither binding upon Insurer nor Insured.

Headnote:

(A) Consumer Protection Act, 1986 – Section 24-A – Consumer complaint – Limitation – Provision is peremptory in nature and requires Consumer Forum to see before it admits complaint that it has been filed within two years from date of accrual of cause of action – Cause of action will remain flexible to be gathered from bundle of facts arising in each case – It has not been laid in strait jacket – Term ‘cause of action’ though not defined in the Act, but it is of wide import and it would have different meaning in different context while considering limitation. (Paras 5 and 6)

(B) Consumer Protection Act, 1986 – Section 24-A – Consumer complaint – Limitation – Fire accident causing total destruction of plant and machinery, raw material as also finished and unfinished goods – Though fire incident occurred on 06.11.1999, same merely provided cause of action for first time to make claim but same did not remain static at that point – On other hand, process of joint survey though had concluded with its final report on 13.03.2001, letter dated 22.06.2001 addressed by Insurer to respondent No.1 regarding appointment of Investigator had created a fresh cause of action and kept the matter oscillating – Thereafter, there was repeated action being taken by investigators seeking for details – When same did not conclude in an appropriate manner, respondent No.1 (Insured) got issued a legal notice dated 05.01.2003 to which reply was issued, when in fact repudiation was gathered and complaint was filed – Even if date on which process of intimation of appointment of Investigator through letter dated 22.06.2001, received by respondent No.1 is taken into consideration, from that date also complaint filed on 26.03.2003 is within time – There was no need for NCDRC to pass any separate order at the outset to hold claim to be within limitation and then proceed when it is clear on fact of it – As such, consideration of complaint on merits by NCDRC was justified. (Para 8)

(C) Insurance Act, 1938 – Section 64-UM(2) – Consumer Protection Act, 1986 – Section 23 – Insurance – Fire accident causing total destruction of plant and machinery, raw material as also finished and unfinished goods – NCDRC allowed complaint in part and directed Insurer to pay sum of Rs.79,34,703/- with 12% interest, as against claim of Rs.1,25,25,319/- made by respondent No.1 (Insured) – Approved Surveyor’s report may be basis or foundation for settlement of a claim by Insurer in respect of loss suffered by insured but such report is neither binding upon Insurer nor Insured – Surveyor’s report certainly can be taken note as a piece of evidence until more reliable evidence is brought on record to rebut the contents of the surveyor’s report – Surveyor’s report cannot be considered as a sacrosanct document and if there is any contrary evidence including investigation report, opportunity should be available to produce it as rebuttal material – Surveyors report is basic document which has statutory recognition and can be made the basis if it inspires confidence of adjudicating forum and if such forum does not find need to place reliance on any other material, in facts and circumstance arising in the case – Surveyor’s report would indicate that same is not perfunctory but has referred to all aspects, discarded what was not reliable and assessment has been made thereafter – Surveyor’s report was submitted as natural process, conclusion reached therein is more plausible and reliable rather than investigation report keeping in view manner in which Insurer had proceeded in the matter – Reliance placed on Surveyor’s report by NCDRC without giving credence to investigation report in facts and circumstances of instant case cannot be faulted – There is no specific reason for which NCDRC has thought it fit to award interest at 12% per annum – Normal bank rate or thereabout would justify grant of interest at 9% per annum – Amount as ordered by NCDRC shall be payable with interest at 9% per annum instead of 12% per annum. (Paras 11, 14, 16 and 17)

Facts of the case:

Appellant (insurer) who was arrayed as respondent No.1 in complaint filed before the National Consumer Disputes Redressal Commission, New Delhi (NCDRC) in O.P. No.102/2003 is before this Court in this appeal being aggrieved by the order dated 27.03.2009. The respondent No.1 (insured) was the claimant before NCDRC. The plant and machinery in the factory owned by respondent No.1 was charged in favour of respondent No.2 as security, while the stock in trade was hypothecated in favour of respondent No.3 (Thane Jan Sahakari Bank) for discharge of loan obtained from them. Since the respondent No. 2 and 3 are entitled to adjust the claim towards their outstanding dues, they are arrayed as parties to the proceedings. Through the order dated 27.03.2009 impugned herein, the NCDRC has allowed the complaint in part and directed the insurer to pay the sum of Rs.79,34,703/- with interest at 12 % per annum. Out of the said amount, a sum of Rs.49,56,897/- is ordered to be apportioned in favour of respondent No.2 (Maharashtra State Financial Corporation) and the balance amount of Rs.29,77,806/- is ordered to be paid to the respondent No.3 (Thane Jan Sahakari Bank Limited). The total amount awarded is against the claim of Rs.1,25,25,319/- made by the respondent No.1 (Insured).

Findings of Court:

Fire incident had occurred on 06.11.1999 and the surveyors had visited the site on 09.01.1999 itself and the interim as also the final report were submitted on 23.03.2000 and 13.03.2001 to the insurer after due deliberations. The insurer did not take any steps immediately but after much delay appointed the investigator on 22.06.2001 and had not concluded the said process though the respondent No.1 had made repeated request.

Result : Appeal allowed in part.