Ambe Rice Mill, Kaithal vs REGIONAL MANAGER , BRANCH MANAGER

BY way of present revision petition there is challenge to order dated 6.4.2012, passed by State Consumer Disputes Redressal Commission, Panchkula (for short, ''State Commission '').

CASE of petitioner/complainant is that it purchased Marine Transit Insurance Policy from Respondents/O.Ps, vide cover note No. 059592 dated 27.1.2005. On 22.2.2005, petitioner loaded 361 bags of rice and 202 bags empty (bardana) in Truck No. HR-56C-1795 through Swami Trading Company, Kaithal for delivery to Kashmir House, Hyderabad, vide bill/challan No. 659 and invoice No. 3128 dated 22.2.2005 valued Rs. 4,80,031/-. It is alleged by the petitioner that on the night of 23/24.2.2005, driver of the truck parked the said truck at Bus Stand of village, Igrah District Jind. Some unknown persons committed theft of 37 bags of rice out of the said truck valued at Rs.50,000/-, weighting 50 Kg. each. FIR No. 32 under Section 379 IPC dated 3.3.2005, was got recorded with police Station Sadar, Jind. Necessary intimation was given to the respondents but they failed to settle the claim submitted by the petitioner. Thus, alleging it a case of deficiency in service, petitioner invoked the jurisdiction of the District Forum. Upon notice the respondents appeared but failed to file reply despite availing several opportunities. Thus, defence of the respondents was struck off on 16.7.2010.

DISTRICT Forum, vide its order dated 1.2.2012, dismissed the complaint of the petitioner as time barred.

AGGRIEVED by the order of the District Forum, petitioner filed an appeal before the State Commission, which dismissed the appeal of the petitioner in limine. This is how the matter has reached before this Commission.

IT is contended by learned counsel for the petitioner that impugned order is contrary to the relief sought by the petitioner. Petitioner in its appeal has sought for setting aside of order dated 1.2.2012, passed by the District Forum, vide which complaint was dismissed on the ground of limitation. State Commission, in its impugned order has relied upon some other order passed in another matter, which was filed by the petitioner for reference only. Petitioner has clearly mentioned in the index of the appeal before the State Commission, that impugned order is dated 1.2.2012. Further, State Commission has wrongly mentioned in the impugned order that award has already been passed in the matter and there is no requirement for enhancement of the compensation amount. In these circumstances, impugned order passed by the State Commission be set aside and complaint of the petitioner be restored and matter be remanded back to the State Commission for fresh disposal.

AS apparent from the record, petitioner has filed complaint No. 156 of 2010, before the District Forum (page No. 11 of the paper book). This complaint was disposed of by the District Forum, vide order dated 1.2.2012, holding the same being time barred. Aggrieved by the order of District Forum, petitioner filed First Appeal No. 342 of 2012 before the State Commission, which disposed of the same, vide impugned order observing as under ; " Challenge in this appeal is to the order dated 30.10.2009 passed by District Consumer Disputes Redressal Forum, Kaithal whereby complaint No. 227 of 2006 filed by the appellant-complainant against the respondents-opposite parties has been accepted ".

THERE appears to be a mix-up with regard to order dated 1.2.2012 passed by the District Forum and order which was challenged in the First Appeal No. 342 of 2012 before the State Commission. The impugned order deals with order dated 30.10.2009 passed by District Forum, in complaint No. 227 of 2006, which was not the present complaint filed before the District Forum.

IT appears that present confusion has been created by the petitioner itself, since it has filed another order passed in another matter which is apparent from the Ground ''C '' of this revision petition, which read as under; " C. Because the impugned order is bad as the State Commission has not appreciated the impugned order dated 1.2.2012 passed by District Forum and has relied on the another order passed in another matter, which was filed by the Appellant/Complainant for the reference only. The Appellant/Complainant has clearly mentioned in the index of the appeal before the State Commission the impugned order dated 01.02.2012 as Annexure-P-3 ".

Be that as it may, even if the impugned order does not pertain to complaint No. 156 of 2010, filed before the District Forum, otherwise also this complaint is barred by limitation.

AS per averments made in the complaint, cause of action has arisen on 23.2.2005 when theft of 37 bags of rice from Truck has taken place. Admittedly, the complaint was filed in the year 2010. So, on the face of it complaint filed before the District Forum was barred by limitation.

IN this regard plea of learned counsel for the petitioner is that, it is a continuous cause of action since after registration of the FIR, petitioner has given information to the respondents along with necessary documents vide its letter dated 16.3.2005. Later on, police has given the report with regard to the cancellation of the case which was sent to the respondents on 23.10.2008. Since, claim of petitioner has not been settled, it served a legal notice dated 15.3.2010. Hence, there is a continuous cause of action and the complaint of the petitioner is within time. Section 24-A of the Consumer Protection Act, 1986, deals with such situation and the same is reproduced as under ; "24-A. Limitation period :- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in sub-section (1) a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period. Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay. "

THE above provision is clearly peremptory in nature requiring the Consumer Fora to see at the time of entertaining the complaint, whether it has been filed within the stipulated period of two years from the date of cause of action.

HON ''ble Apex Court in case of Kandimalla Raghavaiah and Co. versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made in case State Bank of India vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, as under:- "12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has held; 8. 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 HON ''ble Supreme Court that; "The term "cause 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 "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. "

Now coming to the plea of learned counsel for the petitioner that cause action will arise from the date of service of the legal notice dated 15.3.2010.

THIS plea is of no help to the petitioner as it is well settled that by serving the legal notice or by making representation, the period of limitation cannot be extended by the petitioner. In this context, reference can be made to Kandimalla Raghavaiah and Co. (supra) in which it has been held; "By no stretch of imagination, it can be said that Insurance Company ''s reply dated 21st March, 1996 to the legal notice dated 4th January, 1996, declining to issue the forms for preferring a claim after a lapse of more than four years of the date of fire, resulted in extending the period of limitation for the purpose of Section 24A of the Act. We have no hesitation in holding that the complaint filed on 24th October, 1997 and that too without an application for condonation of delay was manifestly barred by limitation and the Commission was justified in dismissing it on that short ground. "

THUS, the complaint filed by the petitioner before the District Forum was barred by limitation and no application for condonation of delay was filed alongwith the complaint. Under these circumstances, District Forum rightly dismissed the complaint, being barred by limitation. THUS, there is no merit in the present revision petition and same is hereby dismissed with cost of Rs. 5,000/-(Rupees Five Thousand only). Petitioner is directed to deposit the cost of Rs.5,000/- (Rupees Five Thousand Only) by way of demand draft in the name of "Consumer Legal Aid Account " within four weeks from today.

IN case, petitioner fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

LIST on 2.11.2012 for compliance.