C.B. Bajpai, President

1. The appellant/O.P. had filed this appeal being aggrieved by the order dated 19.09.2019, passed by the District Consumer Disputes Redressal Forum, Durg (C.G.) (in brevity "District Forum") in Complaint Case No.C.C./18/1008 whereby and whereunder the concerned District Forum, has partly allowed the complaint filed by the respondent/complainant and directed the appellant/O.P. to pay compensation and granted other reliefs to the respondent/ complainant, as per para 15 of the impugned order.

2. Learned counsel for the appellant/O.P. advanced his arguments and would submit that undisputedly Shri Khalid Khan was admitted in the hospital for the period from 28.08.2014 since 01.11.2014 and he died on 01.11.2014. There was an insurance policy for the period from 18.10.2013 to 17.10.2014 for Rs.3,00,000/-, thereafter the said insurance policy was renewed for the period from 18.10.2014 to 17.10.2015. On 24.12.2014, the appellant/O.P. had settled the claim for the entire insured amount i.e. Rs.3,00,000/-. The respondent/complainant had received Rs.3,00,000/- on 24.12.2014 without making any protest. With this, the hospitalization claim will fall only in the former insurance period and it's maximum sum insured Rs.3,00,000/- has already been disbursed. Despite such disbursement, the respondent/complainant had filed the complaint before the concerned District Forum on 10.08.2018, means thereby the complaint is barred by limitation by one year, seven months and sixteen dys for which no any application has been filed by the respondent / complainant under Section 24A of The Consumer Protection Act, 1986, for condonation of delay and the said delay was never condoned, hence the complaint can not be entertained as it is barred by limitation. Learned counsel for the appellant/O.P. placed reliance in II (2009) CPJ 29 (SC)=II (2009) SLT 793 State Bank of India v. B.S. Agricultural Industries (I), in which Hon'ble Apex Court held that as the limitation began to run from June, 1994 and the complaint filed on May 5, 1997, apparently the complaint is time barred. Letters sent to Bank and Bank's reply is of no help to complainant.

Limitation cannot be extended by the Bank's reply. Also no application for condonation of delay filed. No sufficient cause for delay shown. question of condonation of delay does not arise. The Hon'ble Apex Court held that the complaint stands dismissed as time barred. Learned counsel for the appellant/O.P. would submit that the cited case law is squarely covered in the present matter as simply letter dated 16.08.2018 written by the appellant/O.P. document Ex.A-1 cannot extend the cause of action, hence complaint is time barred. The next submission on behalf of the appellant/O.P. was that first policy was for the sum assured Rs.3,00,000 , the period was 18.10.2013 to 17.10.2014 as per para 8 of the complaint, hence the cause of action would arose on 28.08.2014 the date on which Shri Khalid Khan was admitted in the hospital and as the ailment was continuous, though the policy was renewed for the period from 18.10.2014 till 17.10.2015, but for the renewal of the policy no fresh cause of action arose. There was contract for Rs.3,00,000/- only and the Insurance Company gave entire Rs.3,00,000/- to the respondent/complainant. The said amount was not received under protest. No any letter mentioned for that, hence the appellant/O.P./Insurance Company made full and final settlement for the first contract, as per terms and conditions of the insurance policy condition No. 3 on one illness, which is reproduced here for relevance :-

"3. ANY ONE ILLNESS :

Any one illness will be deemed to mean continuous period of illness and it includes relapse within 105 days from the date of discharge from the Hospital / Nursing Home from where treatment was taken. Occurrence of same illness after a lapse of 105 days as stated above will be considered as fresh illness for the purpose of the policy."

2.1. Learned counsel for the appellant/O.P would further submit that since the ailment was in continuing, the cause of action arose on 28.08.2014 continued till unfortunate death of Shri Khalid Khan, hence the payment of renewal of policy would not help hence, the concerned District Forum committed mistake of law and facts while granting reliefs, hence the appeal may be allowed and impugned order passed by by the concerned District Forum, may be quashed.

3. Per contra, learned counsel for the respondent/complainant would submit that by sending letter dated 16.08.2016, the appellant/O.P. informed regarding closure of claim file after full and final settlement of the claim. Prior to this, he never decided the claim as full and final settlement, never communicated anything for the claim pending, hence, the cause of action arose on 16.08.2016 the date of the letter not the acceptance of Rs.3,00,000/- dated 24.12.2014 and the appellant/O.P. in their written version para 7 pleaded that the letter dated 16.08.2016 is in reply of letter sent by the respondent/complainant dated 14.05.2016, hence the complaint is within limitation and also within the continuance of first insurance policy insured was admitted in the hospital and during his admission in the hospital, the insurance policy has been renewed on 18.10.2014 and as Shri Khalid Khan died on 01.11.2014, the second policy was continued, hence the condition No.3 of the terms and conditions of the insurance policy regarding one illness is not applicable in the present matter as the said insured was hospitalized during the period of second policy and he was not discharged by the hospital, ultimately he died on 01.11.2014, hence the said condition is not applicable. Learned counsel for the respondent/complainant would submit that the impugned order passed by the concerned District Forum, is in accordance with law and facts, hence the same may be affirmed and appeal filed by the appellant/O.P. may be dismissed.

4. We have perused the impugned order dated 19.09.2019, passed by the concerned District Forum in Complaint Case No.C.C./18/1008 and record of the concerned District Forum.

5. On perusal of the entire matter, we have observed that the respondent/complainant deliberately not filed copy of his letter dated 14.05.2016. With this, we could not know the contents of the said letter. We can only take notice regarding reply dated 16.08.2016 document Ex. A-1, as per said reply since the hospitalization claim will fall only in the former insurance policy period and it's maximum sum assured Rs.3,00,000/- was already disbursed on 24.12.2014 and the file was closed after full and final settlement of the claim. They is no any letter produced regarding the acceptance of Rs.3,00,000/- under protest. One more thing we had observed that vide letter dated 20.06.2018 Ex. A/2, the appellant/O.P. returned the Original Mediclaim documents of Shri Khalid Khan, asked by the respondent/complaiant for their records and accounting purpose, but the letter of request dated 20.06.2018 written by the respondent/complainant is also not filed, goes to show that the respondent/complainant deliberately hided the fact regarding contents of aforementioned two letters for which adverse inference is attracted subject to other facts, since there was no any letter under protest for acceptance, in response to the claim, the Insurance Company had disbursed Rs.3,00,000/-, which was accepted by the respondent/complainant on 24.12.2014. With this the cause of action to file complaint arose only on 24.12.2014 not on 16.08.2016, as accepted by the concerned District Forum, but the case law cited on behalf of the appellant/O.P. of Hon'ble Apex Court is applicable and covered in the present matter, as the letter and Insurance Company's reply is of not help for extension of limitation also in this matter. The complaint is barred by limitation by one year seven months and sixteen days. For condonation of delay, no any application has been filed by the respondent/complainant under Section 24A of The Consumer Protection Act, 1986. There was no any condonation of delay by the concerned District Forum. With this, the complaint cannot be entertained and as the Hon'ble Apex Court in State Bank of India Vs. B.S. Agricultural Industries (I) (Supra), held that the complaint stands barred by limitation. We are of the view that in the present matter also, the complaint was barred by limitation and any condonation of delay neither prayed for nor condoned for.

6. Regarding another point raised on behalf of the appellant/O.P., we have also observed one material point that the respondent/complainant had submitted duly filled in claim form along with documents before the appellant/O.P. after the death of Shri Khalid Khan. Copy of the said claim form is not filed by the respondent/complainant. If the said claim form would have been filed , the Consumer Court certainly had taken judicial notice that for how much amount the respondent/complainant had filed claim before the appellant/O.P. Non-production of said claim form also lead adverse inference against the respondent/complainant. One more point we have observed that though premium for renewal of the policy paid for the period from 18.10.2014 to 17.10.2015, but on the date of renwal of the policy i.e. 18.10.2014, Shri Khalid Khan was taking treatment already admitted in the hospital in continuity 28.08.2014 till his unfortunate death on 01.11.2014. There is no any material on record to demonstrate whether the respondent/complainant ever informed the appellant/O.P. in writing that on 18.10.2014 the insured is already admitted in the hospital since 28.10.2014 he is ailing and being treated as a indoor patient, goes to show that this material information also not informed to the appellant/O.P. The appellant/O.P. came to know regarding the claim only after death of Shri Khalid Khan and also the said claim form is not filed by the respondent/complainant for the reasons best known to him. The respondent/complainant is a Company, who had taken such Group Mediclaim Policy certainly he would have made claim before the appellant/O.P. in writing with duly filled in form and documents. Why the industrial Company had not filed copy of said claim application and also on perusalof the terms and conditions of the insurance policy condition no.3 it is applied in the present matter as the hospitalization claim will fall only in the former policy period and as the appellant / O.P. already made full and final payment Rs.3,00,000/- regarding his claim to the respondent/complainant, now the respondent/complainant cannot get amount towards renewal of insurance policy as the ailment was in tontinuity.

7. On perusal of the entire matter, we hold tht the complaint was barred by limitation. With this, the complaint s

tands dismissed and also as the respondent/complainant failed to prove any deficiency in service or professional mis-conduct on the part of the appellant/O.P., on the other hand the respondent/complainant had not filed copy of claim form, also not filed copy of his letters dated 14.05.2016 and 20.06.2018, also not intimated the appellant/O.P. regarding continuing ailment and admission of Shri Khalid Khan and looking to the condition No.3 of the terms and conditions of the insurance policy, the respondent/complainant is not entitled for any settlement with the second insurance policy looking to the entire facts. With this, the appeal filed by the appellant / O.P. had substance. 8. On the basis of aforementioned facts, provisions of law and appreciation, we hereby dispose off this appeal as follows :- (1) The appeal filed by the present appellant/O.P., is hereby allowed. (2) The impugned order dated 19.09.2019, passed by the concerned District Forum, in Complaint Case No.C.C./18/1008, is hereby quashed. (3) The parties to this appeal shall bear their cost of this appeal themselves. (4) The appeal is thus allowed. Appeal disposed of.