Back
NATIONAL COMMISSION DISPUTES REDRESSAL COMMISSION, NEW DELHI
Prem Narain, Presiding Member
New India Assurance Co. Ltd. —Appellant
versus
Girdhar Kumar Saraf —Respondent
First Appeal No.451 of 2014
(Against the Order dated 01/07/2014 in Complaint No. 14/2003 of the State Commission Bihar)
Decided on 13.8.2018
Counsel for the Parties:
For the Appellant:Mr. Salil Paul, Advocate
For the Respondent:Mr. Bhopal Singh, Advocate
IMPORTANT POINT
When the terms of the policy and pleadings are not considered , the matter is liable to be remanded to the lower fora.
Headnote:Consumer Protection Act, 1986—Section 21—First Appeal—Appellant on 11.2.1999, had taken an insurance cover for burglary and housebreaking for the period 11.2.1999 to 10.2.2000—On 23.5.1999, theft was committed by persons who were already inside the premises when the premises was locked in the night—Thieves escaped by opening shutters from inside with keys—On intimation to the Insurance company surveyor visited the site on 24.5.1999 and submitted his report dated 19.6.1999—The claim was repudiated by the insurance company on 21.7.2001—Complaint was lodged before State Forum who allowed the complaint directing the O.P. to pay a sum of Rs. 20,000/- towards mental harassment and directed the O.P. to settle the claim in 3 months—Against the said orders the present appeal is filed—Heard the counsels, perused the documents and the policy terms—Upon considering the documents etc., it is observed that the State commission has failed to considered the issue of limitation in filing the complaint, policy terms are not considered properly and hence the matter is remanded to the State Commission for deciding the complaint afresh—As it took almost 13 years for the State Commission to decide the complaint, it is requested that the complaint be decided now within a period of six months on priority basis.
Result: Matter remanded back to State Commission for fresh disposal within six months.
This appeal has been filed by the appellant, New India Assurance Company Ltd. against the order dated 1.7.2014 passed by the State Consumer Disputes Redressal Commission, Bihar (for short, State Commission) in CC No.14 of 2003.
2. Brief facts of the case are that on 11.2.1999, Appellant had taken an insurance cover for burglary and housebreaking for the period 11.2.1999 to 10.2.2000. The policy mandated that it was a condition precedent to liability that theft be followed by actual forcible and violent entry into and/or exit from the premises. On 23.5.1999, theft was committed by persons already inside the premises when the premises were locked for the night. Thieves escaped by opening shutters from inside with keys. On 24.5.1999 surveyor visited site and submitted his report dated 19.6.1999. Finally, the claim was repudiated by the insurance company on 21.7.2001. The complainant filed a consumer complaint before the State Commission. Vide order dated 1.7.2014, the State Commission directed the appellant to pay Rs.20,000/- for mental and physical harassment and settle the claim within three months.
3. Hence, the present appeal.
4. Heard the learned counsel for the parties and perused the record.
5. It was explained by the learned counsel for the appellant that the ground of limitation was inadvertently not taken before the State Commission, however, it is a legal ground and that can be taken at any stage. If the counsel appearing before the State Commission has inadvertently not taken this ground in the written statement filed before the State Commission, the party should not suffer for a mistake done by the counsel.
6. The learned counsel for the appellant further stated that the State Commission has erred in not deciding the issue of limitation first. He stated that the incident had happened on the night of 23/24-5-1999 whereas the complaint has been filed on 23.2.2003. Thus, complaint has been filed with delay if considered from the date of incident. The letter repudiating the claim from the OP was sent on 11.7.2001. The complainant/respondent is claiming limitation from a letter dated 24.12.2001 of the OP which is a reply to the complainant on his letter that was sent for reconsideration of the decision of the repudiation. Learned counsel argued that first of all limitation is to be counted from the date of incident. Learned counsel referred to the judgment of this Commission in Laxshmi Bai Vs. ICICI Lombard General Insurance and Others, R.P. Nos.3118-3144 of 2010 with other RPs, wherein the following has been observed:
“10. The term “cause of action”, as observed by Hon’ble Supreme Court of India in Kandimalla Raghavaiah and Co. Vs. National insurance Co. Ltd. III (2009) CPJ 75 (SC), “has not been defined under the Consumer Protection Act, 1986 nor in the Code of Civil Procedure but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as “bundle of facts”, which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, “cause of action” means the cause of action for which the suit is brought. “Cause of action” is cause of action which gives occasion for and forms the foundation of the suit. In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out.”
7. Learned counsel for the appellant further argued that even if the date of incident is not considered as a cause of action, the next cause of action arose when the OP insurance company repudiated the claim on 11.7.2001. If any further correspondence is made by the complainant, that correspondence cannot stretch the period of limitation. The learned counsel referred to the judgment of this Commission in V.K. Appliances vs. New India Assurance Company Ltd., IV(2013) CPJ 419 (NC), wherein it h
