Mr. Justice B.S. Yadav, Member — The present Appellant M/s. Paras Textile had filed a complaint before the Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad under the Consumer Protection Act, 1986. The said complaint was registered by that Commission as Original Complaint No. 276 of 1991. The present Respondent, the New India Assurance Company Ltd. (for short the Company),was the Opposite Party in the complaint. The State Commission dismissed that complaint vide order dated 14th February, 1992. Not satisfied with that order the Complainant has filed the present appeal.

2. The facts as appear from the order of the State Commission, memorandum of appeal and the reply filed by the Company to the memorandum of appeal are that the Appellant had taken Accident Insurance Policy from the Company in repect of their processing house for the period commencing from May 13,1986 to May 12, 1987 for recovering risk upto Rs. 5,00,000/-. The policy also covered the risk of theft. Allegedly a theft took place in the factory of the Appellant on February 3,1987. According to the Appellant sixty bundles of silk handloom cloth of different colours having different lengths were found missing. The Appellant made complaint to the Police and also informed the Company about the alleged loss. Vide letter dated 25th August 1988, the Company repudiated its liability. On 23rd August, 1991 i.e. two days prior to the expiry of three years the Appellant filed the complaint before the State Commission requiring the Company to make payment of the loss suffered by them which was assessed at Rs. 1,16,280/-. Interest at the rate of 18% from 4th February, 1987 till recovery of the money was also prayed for by the Appellant.

3. The Company denied its liability and raised preliminary contention that the complaint was barred as the suit was not filed within 12 months from the date of disclaimer i.e. 25th August, 1988 and therefore, the Complainant will be deemed to have abandoned their claim. For the preliminary contention reliance was placed upon the latter portion of Clause 12 of the insurance policy which reads as follows:

“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”.

Thus according to the Company nothing is recoverable from it.

4. On consideration of the various decisions cited before it, the State Commission came to the conclusion that the last portion of Clause 12 of the policy reproduced above, was not void under Section of 28 of the Contract Act and in view of that Clause the Complainant—Appellant will be deemed to have abandoned their rights under the insurance policy and as the right did not exist the complaint did not lie. The complaint was accordingly dismissed with no order as to costs.

5. After hearing the parties we are of the opinion that the findings arrived at by the State Commission are correct. We need not refer to the various rulings upon which the State Commission has placed reliance while arriving at the findings noticed above. We may however, refer to two rulings which find a reference in the decision of Supreme Court in Vulcan Insurance Co. Ltd. v. Maharaj Singh & Anr., 1976- 287 as the facts of those cases have not been narrated either in the Supreme Court case or the State Commission. We may first refer to Dawood Tar Mahomed Bros. and Others v. Queensland Insurance Co. Ltd., 1949 Calcutta 390. In that case Clause 19 of the Policy read as follows:

“In no case whatever shall the company be liable for any loss or damage after the expiration of twelve months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration.”

It was urged i