J.M. Malik, Presiding Member
1. There is delay of 301 days in filing the instant complaint by V.K.Appliances, the complainant against the New India Assurance Co.Ltd., Opposite Party. The complainant has filed an application for condonation of delay. The delay has been explained in para Nos. 4 and 5 (a) to (f) of the said application, which read as under :-
œ4. The complainant submits that the incident of fire took place in the premises on 04.10.2008. The complaint is required to be filed within a period of two years, that is, on or before, 03.10.2010, as contemplated under section 24-A of the Consumer Protection Act, 1986, whereas, the present complaint which is been filed today is beyond the period of limitation of about seven months.
5. The complainant submits that the delay in filing the complaint is for the reason stated below:-
a) That the complainant is a partnership firm having two partners. Out of those partners, one partner, being a lady, she is not active in day-to-day business and affairs of the firm. The complainants firm is having its plants and units scattered at various places in India, including the place in Himachal Pradesh, where the said incident took place.
b) That the active partner is always on tour, exclusively in connection with business, promotion and production as well as overall supervision of the firm, as such, the administrative work is being handled by the staff concerned.
c) That the complainant submits that in addition to the active partner, the Director of the firm who looks after office affairs, Mr.Patel Tauffique Mohammed is also required to move around, as well as to have foreign tours, in connection with business promotion and was out of station for a long period.
d) Further, as to whether any legal proceedings in the Court of Law are to be initiated or otherwise, for that purpose, the same was referred to the Advocate, in the month of December, 2010. The Advocate to whom the matter referred, on scrutiny asked for various documents, as the documents copies initially supplied were incomplete. The additional documents as asked for by the counsel were required to be obtained from Himachal Pradesh at the place, the incident of fire had taken place, which is far away from Mumbai, where the Head Office of the complainant is situated. Further, there required more trips to procure the documents in the busy schedule of the staff.
e) Further, as there being financial year ending, there was a heavy pressure for preparation of accounts and other incidental work for finalization of accounts of the firm within the stipulated time. Thus, the active partner as well as the Director of the firm was completely busy and it was beyond their control to file the present complaint in the stipulated time, for the reasons stated hereinabove. There is no intentional delay on the part of the complainant.
f) The complainant submits that on furnishing the documents, as required for preparation of the draft, the same was completed and the complaint has been filed?.
2. The learned counsel for the complainant vehemently argued that the case of the complainant is very strong on merits and an opportunity of being heard, should be granted to the complainant. It is explained that denial of opportunity will lead to miscarriage of justice. The incident pertains to 04.10.2008. This complaint was filed in this Commission on 01.08.2011. Learned counsel for the complainant submitted the Insurance company repudiated the claim of the complainant, vide letter dated 10.11.2008, which reads as under :-
œWithout prejudice
In reply, please quote
Ref : Claim No.110900/11/08/13/9000001-1
Srl.No.1
To,
V.K.Appliances, Kasara No. 479/480
Vill. Kamali, Opp. Sec-6, MH-22
Parwanoo (M.P)
Dist. Solan, Tehsil Kasauli, H.P. “ 173 212
Dear Sir,
Re : Claim No.110900/11/08/13/9000001-1, Srl.No.1
Policy No.110900/11/07/13/00001650
Insured : V.K. Appliances
Date of Loss : 07.10.2008
We refer to your above mentioned claim for damages to building, stocks and machinery located in the premises at 754-756. Sector-2, Village Dangyar, Parwanoo, Dist. Solan and would inform you that preliminary survey report of Mr.Pukhraj Singh (of Protech Engineers and Loss Assessors), who was appointed by our Chandigarh R.O. is received by us.
On scrutiny of the same, inter alia, your policy records, it is noted that your aforesaid location is not covered under the policy.
Under the circumstances, we would inform you as under :-
We are constrained to express our inability to entertain your claim and are filing away your claim file as no claim which lease note.
Thanking you,
Yours faithfully,
Sr./Div. Manager?.
The counsel for the complainant further states that after the receipt of the repudiation letter dated 10.11.2008, the complainant has been trying to settle the matter and wrote letter dated 08.12.2008 to the Insurance Company, in this respect. The Insurance Company vide its reply dated 27.01.2009, informed the complainant, as under :-
œDate : 27th January, 2009
M/s.V.K.Appliances, 147
Shiv Shakti Industrial Estate
Opp.Mittal Industrial Estate
Andheri-Kurla Road
Marol, Mumbai “ 400 059
Dear Sir,
Re : Rejection of claim
Policy No.110900/11/07/13/00001650
Claim No.110900/11/08/13/90000011
Date of Loss : 7th October, 2008
Location of Loss : 754-756, Sector-2,
Village Dangyar, Paarwanoo, Dist. Solan
We have your kind letter dated 08.12.2008, regarding grievance over the repudiation of your claim by our Divisional Office 110900 vide their letter dated 10.11.2008 with the reason œlocation is not covered under the policy?.
We took up your grievance and perused the contents with the due application of mind based on the records available with us. New location wherein the loss has occurred is not covered under the above policy by way of endorsement though it is alleged that vide your letter dated 20.03.2008 you have asked for the amendment to add the new location where the loss has occurred.
As the location where the loss has occurred is not expressively covered under the policy by way of endorsement to the policy, the letter of our Divisional Office 1109000 dated 10.11.2008, rejecting your claim on the reason œlocation is not covered under the policy?, is in order.
Thanking you,
Yours faithfully,
Sd/-
V.A.THAKER
MANAGER?.
3. Instead of touching the heart of the problem, the learned counsel for the complainant attempted to skirt it. It is well settled that letters, notices do not extend the time of limitation. The case must be filed within two years from the date of repudiation of claim. Again, the sufficient cause cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of the Limitation Act. There must be some cause, which can be termed as sufficient cause, for the purpose of delay of condonation.
4. In the instant case, if the delay is condoned, the very purpose and Scheme of the C P Act, 1986, shall stand defeated. It must be borne in mind that C P Act, 1986, envisages summary procedure and has its own period of limitation. It is also noteable that day-to-day delay has not been explained, in the present case. Such like stories can be created at any time. The complainant has put forward a lame excuse which hardly leaves any impact.
5. The Honble Apex Court in Kandimalla Raghavaiah and Co. Vs. National Insurance Co.Ltd., and Anr., 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made in case State Bank of India Vs. B.S. Agricultural Industries (I), (2009) CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, as under :-
œ12. Recently, in State Bank of India Vs. M/s. B.S. Agricultural Industries “ 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this court, while dealing with the same provision, has held :-
œ8. It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, shall not admit a complaint occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside?.
In Para No.13, it has been held by the Honble Supreme Court :-
œThe term œcause of action?, is neither defined in the Act nor in the Code of Civil Procedure, 1908, 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 œbundle of facts?, which, if proved or admitted, entitle the plaintiff to the relief prayed for. Pithily stated, œcause of action?, means the cause of action for which the suit is brought. œCause 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?.
6. Recently, in a case, titled as Dolphin Offshore Enterprises (I) Ltd. Vs. United India Insurance Co.Ltd., the Honble Apex Court, in Special Leave to Appeal (Civil) No. 9307 of 2013 filed by petitioner, Dolhpin Offshore Enterprises (I) Ltd., decided on 08.03.2013, was pleased to hold :-
œWe have heard learned counsel for the petitioner and perused the record. In our opinion, the reasons assigned by the State Commission and the National Commission, for holding that the complaint was barred by time, are correct. It is not in dispute that the claim made by the petitioner was repudiated by the respondent, vide communication dated 30.10.2002, and the complaint was filed on 25.05.2006, i.e., after three years and five months of repudiation of the claim. Therefore, there is no escape from the conclusion that the complaint was barred by time. This view finds support from the judgments of this court in HUDA Vs. B.K. Sood (2006) 1 SCC 164, SBI Vs. B.S.Agricultural Industries (I) (2009) 5 SCC 121, Kandimalla Raghavaiah Vs. National Insurance Co. Ltd. (2009) 7 SCC 768 and V.N.Shrikhande (Dr.) Vs. Anita Sena Fernandes (2011) 1 SCC 53?.
7. Consequently, we hereby dismiss the complaint as barred by time.