We have heard Mr. B. Singh learned counsel for the appellant as well as Mr. O.P. Thakur, learned counsel for the respondent in extenso.

2. This is an appeal filed by the Oriental Insurance Company Ltd. Against order dated 16-03-1995 of the J&K State Consumer Protection Commission, Jammu (hereinafter to be referred as the Commission) by virtue of which the appellant company has been directed to pay a sum of Rs. 40,000/- to the respondent as claim amount, with interest at the rate of 18% per annum from 21-03-1990 till realisation and also to pay the damages on account of loss of business to the tune of Rs. 25,000/- and Rs. 5000/- as costs of litigation.

3. The factual matrix of the case in resume may be noticed. On the night intervening 20th and 21st March, 1990 there was a lightening as a result of which goods lying in the shop of the complainant were burnt and washed away by floods. Despite information extended to the Insurance Company, the claim of the complainant was neither assessed nor processed. It is not disputed that the claimant had taken Fire Policy `B of the insurance company effective from 01-08-1989. in respect of the `Karyana goods and other miscellaneous items in the shop. The policy was for a period of one year and it was to expire on 31-07-1990. The claimant had taken a loan from the Jammu & Kashmir Bank Ltd. Branch Ukhral against a stock insured in the shop, Intimation about the damage was given to the Insurance Company by the Jammu & Kashmir Bank Ltd., Branch Ukhral by telegram on 21-03-1990. the Insurance Company repudiated the claim vide communication dated 05-04-1990 in stating that the respondent/claimant had taken insurance Fire Policy `B and it did not cover the risk of Flood and other natural calamities and declined to entertain such claim.

4. On a complaint preferred by the complainant for compensation in respect of the loss of the goods suffered by him, burnt due to the lightening and washed away by floods the Insurance company denied its liability in the demurr and the Commission considered the contentions of the parties in context of the evidence on the record and awarded the claim in respect of the loss to the goods suffered by the complainant, alongwith damages on account of loss of business and costs of litigation, which became the subject matter of challenge before us in the appeal filed by the Insurance Company on the following grounds; -

(i) That the claim was barred by limitation;

(ii) That the respondent himself did not intimate about the loss in terms of the policy of insurance;

(iii) That the claim was not covered by the policy of Insurance and the appellant Insurance Company is not liable to pay the loss suffered by floods.

5. The arguments put across by the appellant is that the claim for loss or damage having not been made within the period of 12 months as contemplated by condition 4 part B(iii) of the policy exonerates the Insurance company from its liability to pay the claim for loss or damage suffered by the claimant; that the commission has not considered the issue in perspective. It has not rendered any decision on the question of limitation.

6. The question with regard to limitation came up for consideration before the Apex Court in case National Insurance Company Limited v. Sujir Ganesh Nayak and Company, AIR 1997 SC 2049, the clause which was being interpreted by the Supreme Court of India is re produced below:-

"Condition No. 19 -- in no case whatever shall the company be liable for any loss or damage after the expiration of 12 months from the happening of loss or the damage unless the claim is the subject of pending action or arbitration."

7. The ratio of the aforesaid decision of the apex court is that if there is extinguishments of the right itself unless exercised in a specific time, it cannot be enforced. The repudiation of the liability of this case was communicated by the Insurance Company vide letter dated 05-04-1990 whereas the complaint was filed on 28-03-1994. It is not dispu

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