Mr. Justice S.A. Shah, President—It is not disputed that the complainant took a policy of insurance from the opposite party in respect of his processing house commencing from May 13,1986 to May 12,1987 for an amount of Rs. 5 lakhs. The policy also covered theft risk.

2. It is alleged that on February 3, 1987 the complainant came to his factory and found that the locks were broken and on further investigation it came to the notice of the complainant that 60 bundles of silk handloom cloth of different colours having length of 80-90 mts. were found missing. The complainant therefore filed a complaint before the Police. The complainant also informed the Insurance Company on the next day and also had given documents demanded by the Company.

3. According to the complainant, by letter dated August 25,1988 which was received by the complainant on August 28, 1988 the Insurance Company informed him that his claim was rejected and no reasons for rejection were given. The complainant has further averred that he has paid full premium and has complied with all the terms and conditions of the Policy but the Insurance Company by rejecting the lawful claim of the com- plainant has committed breach of the conditions of the Policy which amounts deficiency in services within the meaning of Section 2(1) (d) (ii) of the Consumer Protection Act.

Inspite of the demands from time to time the Insurance Company has failed and neglected to make the payment of the loss suffered by the claimant which was shown at Rs. 1,16,280/- the Company was liable to pay the same with 18% interest from 4.2.87 till the recovery of the money.

4. The Insurance Company has denied their liability and has raised a preliminary contention that the complaint is barred by limitation as well as by not filing the suit within a period of 12 months from the date of disclaimer i.e., 25.8.88, the complainant is deemed to have abandoned his claim is, therefore, not recoverable in any form.

5. Mr. Chudgar, the learned Advocate appearing on behalf of the Insurance Company has drawn our attention to Clause 12, last portion of the policy which reads as under:

“It is also hereby further expressly agreed and declared that if the Company shall disclaim liability to the insured for any claim hereunder and such claim shall not within 12 calendar months from the date of such disclaimer have been made the subject-matter of a suit in a Court of law, then claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder “

6. Mr. Mehta, the learned Advocate appearing on behalf of the complainant has drawn our attention that the claim has been rejected on 25.8.88 where the complaint has been filed on 23.8.91 i.e., 2 days prior to the period of 3 years the complaint cannot be said to be barred by limitation whereas Mr. Chudgar has vehemently argued that the cause of action has arisen on 4.2.87 as mentioned in Para 7-A by the claimant himself. There is no pleading to suggest that by repudiation of the claim the cause of action will start running from 25.8.88. It is not necessary to give any finding whether the complaint is filed after 3 years from the cause of action and, therefore filed after the period of limitation expired. Since we are inclined to dismiss the same on the ground that the complaint having not been filed within 12 calendar months from the date of disclaimer by the Insurance Company the complainant is deemed to have abandoned his claim. Since we have taken such a view in the case of M/s. Saheen Screen Prints v. The United India Insurance Company, Ahmedabad in Complaint No. 112 & 113/91 decided on 8.1.92.

7. In the said case we have considered the decision of the Division Bench of the Bombay High Court in a case where the facts are more or less similar. In that case also Clause 12 was similarly worded. The said case is reported in AIR 1914 Bombay 225 and the question before the Bombay High Court was whether the Clause 12 limits the period of li