CALCUTTA CONSTRUCTION COMPANY vs Insurance Co. Ltd.

THIS is an appeal filed against order dated 17.9.2002 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter referred to as the District Forum) in Complaint Case No. 31 of 1998, M/s. Calcutta Construction Company (for short hereinafter referred to as the Company) filed the aforesaid complaint alleging inter alia that it had taken a valid Insurance Policy from National Insurance Company Limited, U.T., Chandigarh (for short hereinafter referred to as the Insurance Company) covering risk on the life of its workmen during the course of their employment with the Company. The said Insurance Policy was in force since the year 1989. It is alleged that Sh. Didar Singh, a workman died during the course of his employment with the complainant on 24.12.1993 and his wife Smt. Baldev Kaur moved an application under the Workmen''s Compensation Act before the Commissioner, the competent authority under the said Act at Mohali. The Insurance Company was impleaded in the said application as O.P. No. 3. The Commissioner allowed the application aforesaid and passed an Award dated 4.11.1994 and directed payment of a sum of Rs. 76,545/- to Smt. Baldev Kaur aforesaid. Apart from it, a sum of Rs. 4,316/- was awarded as interest bringing the total amount for payment as 80,861/-. While the award was made, the claimant was found eligible for compensation and a direction was, in the first place, issued to the complainant - Company to make the payment aforesaid along with interest and thereafter the complainant - Company would be entitled to make the claim before the Insurance Company claiming the said amount. The grievance of the complainant was that the Senior Divisional Manager and the Regional Manager of the Insurance Company did not comply with the award inasmuch as they did not make the payment under the policy to the complainant who served a legal notice dated 21.7.1999 on the O.Ps. and then filed the complaint claiming refund of the amount of Rs. 80,861/- along with interest @ 18% per annum from the date the payment was deposited in the office of the Workmen''s Compensation Commissioner, Mohali till its realization. A sum of Rs. 50,000/- was claimed on account of mental agony, harassment and litigation expenses.

THE OPs appeared before the District Forum and filed reply wherein they challenged the maintainability of the complaint. It was alleged that the complainant had taken insurance on the life of 30 un-named workmen working in the factory whereas the factory was working in three shifts each having some 30 workmen bringing the total of employees to 90 which was in clear violation of the terms and conditions of the Insurance Policy. It was not denied that the Insurance Company was a party in the proceedings before the Workmen''s Compensation Commissioner and had filed an appeal against the order of the Workmen''s Compensation Commissioner in the Hon''ble High Court of Punjab and Haryana and since the matter was pending there, the complaint was not maintainable. It was also alleged that the complaint was barred by time. It was, however, not denied that the complainant - Company had already made the payment to the claimant Smt. Baldev Kaur. THE territorial jurisdiction of the District Forum was also challenged. THE parties led their evidence including their affidavits and documents. The District Forum held that it had territorial jurisdiction to entertain and adjudicate the complaint as the offices of both the OPs were located at Chandigarh. Objection regarding bar of limitation was upheld and it was held that the cause of action arose to the complainant to seek contribution from the O.P. on 10.2.1995 when the amount was deposited by the complainant in the office of the Workmen''s Compensation Commissioner in pursuance of the directions contained in the Award and the complaint was filed beyond the prescribed period of limitation of 2 years. The District Forum held further that the Workmen''s Compensation Commissioner had jurisdiction to pass the order under the Workmen''s Compensation Act, 1923 against the Insurance Company for the payment of compensation and relied on the authority reported in the case of Khwaja Bai v. Gulabkhan Jamalkhan Pathan, 1979 Mah. LJ 277. The objection of the respondents that the Workmen''s Compensation Commissioner is the appropriate authority to execute the Award against the Insurance Company under Section 31 of the Workmen''s Compensation Act, 1923 and the proceedings under the Consumer Protection Act, 1986 (for short hereinafter referred to as the C.P. Act) were not maintainable. It was held that the remedy provide under Section 3 of the C.P. Act is in addition and not in derogation to the other provisions of law for the time being in force. It was held that the complainant is a consumer who has hired or availed the services of O.Ps., the provider of the services and the complaint under the C.P. Act was maintainable. The reliance in this regard was made on the authority reported in the case of Oriental Insurance Company Limited v. Banamali Ghosh & Anr., 2001 (1) CPC 553. The District Forum also repelled the submission of the OPs that since the matter was pending in appeal before the Hon''ble High Court, hence the complaint was not maintainable. The District Forum noted that the learned Counsel for the OPs conceded that no stay order against the Award was passed by the Hon''ble High Court. In the normal course, the execution of the Award would take place at the instance of the complainant against the OPs. It was held that the complaint was maintainable as an alternative remedy. The complaint was, however, dismissed only on the ground of bar of limitation.

Feeling aggrieved against the order passed by the District Forum, the complainant filed this appeal. Upon issuance of notice, the O.Ps. put in appearance through Ms. Reeta Arora, Advocate. Mr. Munish Sharma, Advocate appeared for the appellant - complainant. We have heard the learned Counsel for the appellant and the learned Counsel for the respondents. We have also carefully perused the impugned order and the record of the complaint case.

THE learned Counsel for the appellant mainly urged that the finding of the District Forum regarding the complaint being barred by limitation is erroneous inasmuch as the starting point of cause of limitation would not be 10.2.1995 when the amount was deposited by the complainant in implementation of the Award but it was a continuing cause of action inasmuch as the complainant made a demand of the amount paid under the Award from the Insurance Company which the Insurance Company did not pay despite service of legal notice. THE legal notice was sent on 21.7.1997. THE complaint was filed on 3.3.1998 i.e. within the prescribed period of limitation of two years under Section 24A of the C.P. Act. In support of his contention, the learned Counsel for the appellant placed reliance on the authorities reported as M/s. Raj Enterprises v. Branch Manager, National Insurance Co. Ltd. & Anr., 2002 (1) CPC 591; Dr. Shyamkumar v. Rameshbhai Harmanbhai Kachhiya, 2002 (1) CPC 569; Executive Engineer, U.P.S.E.B. & Anr. v. President, Nagar Panchayat, 2001 (1) CPC 14; K.K. Prabhakaran & Ors. v. P.M. Suresh & Ors., 2001 (1) CPC 283; Housing and Development Board, U.P., Lucknow v. Mr. Hari Raj Swaroop Bhatnagar, I (2001) CPJ 24=2001 (1) CPC 235, and lastly Tek Chand v. New India Assurance Company Limited, 2001 (1) CPC 20. It may be pointed out that the right to claim the amount paid by the complainant to the widow of the deceased/workman Smt. Baldev Kaur under the Award accrued when the complainant raised a claim regarding the same from the Insurance Company. The starting point of cause of action would not be the date when the amount was deposited in compliance of the Award. Since the Insurance Company till the date of filing of the complaint did not pay the amount in question to the complainant, the cause of action would be a continuing one and in any case, the demand was specifically raised vide notice dated 21.7.1999 served on the OPs and the complaint was filed well within a period of two years from the aforesaid date.

IN our considered opinion, the District Forum committed an error in relying on the accrual of cause of action on a single date i.e. 10.2.1995 when the payment was made under the Award and failed to take into consideration the fact that the demand was made by the complainant from the INsurance Company of the said amount but the same was not paid despite legal notice dated 21.7.1999. The complaint, in our considered opinion, was filed well within the prescribed period of limitation and it should not have been dismissed on the plea of bar of limitation. So far as the other findings are concerned, the District Forum has taken into consideration the rival contentions and has rightly held that the complaint was cognizable by it as the offices of respondent Nos. 1 and 2 were located between the territorial jurisdiction of the District Forum i.e. in the Union Territory of Chandigarh. The finding of the District Forum regarding the complaint being maintainable as an additional remedy under Section 3 of the C.P. Act cannot be said to be suffering from any infirmity in law. Section 3 clearly enables a consumer to file a complaint as an additional remedy and the mere fact that other remedies are available under other provisions of law will not be sufficient to hold that the complaint was not maintainable before the Consumer Disputes Redressal Agencies and such an interpretation would in fact frustrate the very object of the enactment of the C.P. Act. The filing of the appeal against the order of the Workmen''s Compensation Commissioner before the Hon''ble High Court will also not debar the appellant/complainant to file the complaint case and the District Forum has rightly held that the complaint was legally maintainable. So far as the terms and conditions of the Insurance Policy are concerned, the Workmen''s Compensation Commissioner decided the claim of Smt. Baldev Kaur in the presence of the Insurance Company and took into consideration its pleas. The appellant-Company had three regular shifts employing sum 30 employees. The claim of the Workmen could not be negatived on the ground that he would be counted in the group of workers exceeding 30 and not inclusive of the 30 un-named persons in respect of whom Insurance Policy have been taken.

RESULTANTLY, we find considerable merit in this appeal which is allowed. The OPs are directed to pay a sum of Rs. 80,861/- to the appellant within interest @ 9% per annum from the due date till its payment. Since interest is being awarded by way of compensation, no fresh amount need to be paid to the appellant by way of compensation on account of harassment etc. Let these directions be complied with within a period of two months from the date of receipt of copy of this judgment. Copies of this judgment be sent to the parties free of charge. Appeal allowed.