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Bhaktimoyee Cold Storage Pvt. Ltd. v/s New India Assurance Company Ltd. & Others


Company & Directors' Information:- A. S. INDIA LIMITED [Active] CIN = U70100MP2009PLC022300

Company & Directors' Information:- G. T. COLD STORAGE PRIVATE LIMITED [Active] CIN = U70101UP1999PTC024239

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

    S.C. Case No. CC/09 of 2009

    Decided On, 26 November 2010

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE PRABIR KUMAR SAMANTA
    By, PRESIDENT
    By, THE HONOURABLE MRS. S. MAJUMDER
    By, MEMBER & THE HONOURABLE MR. S. COARI
    By, MEMBER

    For the Complainant: A.K. Sil, Advocate. For the Opposite Parties: N.R. Mukherjee, Advocate.



Judgment Text

Prabir Kumar Samanta, President:

1. This Miscellaneous Application being MA/135/2009 has been filed by the complainant in the complaint case No. CC/09/2009 for condonation of delay if any in filing the above complaint case before this State Commission.

2. The complainant/petitioner has filed the present complaint alleging deficiency in service by the OPs in not paying the lawful claim of the complainant under the policy of insurance issued by the OP1.

3. The complainant took out one Deterioration of Stock (potatoes) in Cold Storage Insurance Policy from the OP1 for the assured sum of Rs. 4,09,58,190 for the period from 26.3.2004 to the midnight of 25.3.2005. It has been alleged that there was bursting of bunker coil (pipe) in chamber one of the said cold storage causing spreading out of ammonia gas for which the stocked potatoes were totally damaged. After the occurrence of the said accident in the cold storage a Surveyor was appointed by the OPs for assessment of loss caused thereby. The complainant in its turn prepared a statement of loss suffered by him and ultimately the complainant raised its claim to the OPs to the tune of Rs. 72,13,203. It has been clearly stated in the complaint petition that the OP1 by its letter dated 26.8.2005 being Annexure to the complaint rejected the said claim of the complainant. It has been stated that the complainant thereafter by a letter of his learned Advocate Mr. Sisir Chakraborty dated 4.10.2005 requested the OP1 to send the Surveyor Report to him within 15 days. The complainant having not received any Surveyor’s Report from the OP1 lodged a complaint with Insurance Ombudsman on 28.12.2005. The said Insurance Ombudsman by its letter dated 7.1.2006 expressed its inability to entertain the claim as it exceeded its financial power. In these state of affairs the complainant further made correspondences with the Chairman-cum-Managing Director of the OP1 for the period from 7.1.2006 till 5.9.2006 for redressal of his grievances without any success, when the complainant approached the Insurance Regulatory and Development Authority describing all the incidents as aforesaid. The said Regulatory Authority by its letter dated 26.6.2007 informed the complainant that the repudiation of the claim of the complainant by the OPs 2 and 3 was in accordance with the norms as prescribed. Interestingly the complaint case was not filed immediately thereafter. On the contrary the complainant once again approached the Regional Manager and the Divisional Manager of the OP1 by writing one after another letter and lastly approached the Kodalia (1) Gram Panchayat Khetra Surakha Samity, a voluntary consumer association and after having failed in all his attempts as above filed the present complaint ultimately on 4.2.2009.

4. Upon reference to the Press Note dated 11.2.2005 it has been strongly urged on behalf of the complainant that it was obligatory for him to approach the Insurance Ombudsman for redressal of his grievances. Similarly upon reference to the Insurance Regulatory and Development Authority (Protection of Policy holders’ Interest) Regulations, 2002 it has been urged that the complainant was also obliged to approach the authority created thereunder for settlement of its claim. It has accordingly been contended that the delay caused thereby should be condoned.

5. As per the provisions of the Consumer Protection Act, 1986 a complaint shall not be admitted unless it is filed within two years from the date on which the cause of action has arisen. In this case it is therefore of prime importance to find out the date on which the cause of action had arisen.

6. Evidently the cause of action arose for the first time for making of the complaint under the Consumer Protection Act, before this State Commission on 26.8.2005 when the OP1 the Insurer of the complainant by its letter categorically rejected the claim of the complainant. Once the cause of action had arisen the limitation started running for taking appropriate legal action. Mere approach to the various authorities for redressal of the grievances would not stop the running of limitation for the purpose of taking legal action, if for such legal action any time limit is prescribed. It is not a case of recurrent cause of action. Therefore, in this case the cause of action for filing a complaint before the Consumer Redressal Forum arose on the very date on which the claim of the complainant was unequivocally rejected by its Insurer. The time as prescribed for filing complaint against the Insurer for repudiation of the claim of the complainant started running from the very date of such rejection by the Insurer. The Consumer Protection Act does nowhere prescribe that a consumer in a case of repudiation of his claim by the Insurer would have to mandatorily approach either the Insurance Ombudsman or the Insurance Regulatory and Development Authority for redressal of his grievances before filing complaint case before the Consumer Redressal Forum. Therefore, the complainant was not legally obliged either to approach the Insurance Ombudsman or the Insurance Regulatory and Development Authority before filing the complaint case in this State Commission. Therefore, it cannot be said that even after repudiation of the claim of the complainant by its Insurer namely the OP1 on 26.8.2005 as stated hereinabove, the limitation for filing of the complaint against such repudiation stopped running for the period during which the complainant had approached the Insurance Ombudsman and the Insurance Regulatory and Development Authority as created under Insurance Regulatory and Development Authority Regulations, 2002.

7. However, complainant may be given the benefit of the time consumed by approaching the Insurance Ombudsman and/or the Insurance Regulatory and Development Authority for the purpose of redressal of his grievances depending upon the facts and circumstances of the particular case. But it can by no means be said that the cause of action for this complaint case had arisen long after the said Insurance Ombudsman and the Insurance Regulatory and Development Authority expressed their inability to settle the claim as the same was repudiated by the higher authorities of the Insurer. We are, therefore, of the firm view that the cause of action for this complaint case arose finally on 26.8.2005 when the claim of the complainant was repudiated by the Insurer of the complainant.

8. Interestingly, the complainant approached the Insurance Ombudsman on 28.12.2005 as stated above after expiry of four months from the date of repudiation of the claim as above. After the said insurance Ombudsman expressed its inability to entertain the claim on 17.1.2006 the complainant did not approach the Insurance Regulatory and Development Authority immediately thereafter. The complainant approached the said Insurance Regulatory and Development Authority on 5.9.2006 i.e. after expiry of about eight months from the date the Insurance Ombudsman expressed its inability to entertain the claim of the complainant. Even after 26.6.2007 when the said Regulatory Authority upheld the repudiation action of the Insurer the complainant for no reason further approached the OPs 2 and 3 on 5.11.2007 and 1.10.2007 respectively, particularly when, there was no occasion for approaching the said OPs who were the authorities of the Insurer which had repudiated the claim as far back as on 26.8.2005. Most importantly the complainant did not file the appeal immediately after 5.11.2007. It was filed after about 15 months on 4.2.2009.

9. Even for the sake of condonation of delay in filing the complaint before this State Commission, if we take into consideration the time consumed in approaching the Insurance Ombudsman and the Insurance Regulatory and Development Authority, then also the complainant would be entitled to the benefit of the period from 28.12.2005 when the complaint was lodged with the Insurance Ombudsman till 17.1.2006 when such Ombudsman expressed its inability to entertain the claim as well as the period from 5.9.2006 when the complainant wrote a letter to the Insurance Regulatory and Development Authority till 26.6.2007 when such Regulatory Authority upheld the repudiation action of the Insurer. If these two periods are excluded for the purpose of calculating the period of limitation for filing this complaint before the State Commission then also it would be badly barred by limitation as it was filed on 4.12.2009 after the cause of action had arisen on 26.8.2005.

10. The decisions of the Hon’ble National Commission II (2010) CPJ 195 (NC)=2010 CTJ 491 (CP), The Director, Advent Computer Services Ltd. v. V.R. Kannan and Others, and the Supreme Court reported in III (2010) SLT 114=(2010) 4 SCC 509, Suvarnalata Ata v. Mohan Anandrao Deshmukh and Another, cited on behalf of the complainant have no manner of application in the facts and circumstances of this case. In the case before the Hon’ble National Commission it h

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as nowhere been indicated as to when the cause of action had arisen in that case or that mere writing of letters would stop the running of limitation for the purpose of filing of the claim. The Hon’ble Supreme Court in the case of Suvarnalata Ata (supra), has condoned the delay that had occasioned on account of pendency of the review petition. In the case in hand as observed hereinbefore that even if the time consumed before the Insurance Ombudsman and the Insurance Regulatory and Development Authority is excluded then also the complaint was badly barred by limitation. 11. For all the aforesaid reasons we are unable to hold that the complainant was prevented by sufficient cause from preferring this complaint case before the State Commission within the prescribed period of limitation. The petition for condonation of delay in filing the complaint is accordingly dismissed. The complaint case shall accordingly stand as dismissed being barred by limitation. Complaint dismissed.
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