E. Dhana Laxmi vs NEW INDIA ASSURANCE COMPANY LTD.

PETITIONER /Complainant being aggrieved by order dated 18.4.2013 passed by Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (for short, ''State Commission'') has filed present revision petition under Section 21(b) of Consumer Protection Act, 1986 (for short, ''Act''). Brief facts are that Petitioner is the nominee of deceased life assured (E. Nara Narayana) under Long Term Group Janata Personal Accident Policy which was issued by Respondent/opposite party on 11th Day of February, 1999. The policy was for sum assured of Rs. 5,00,000. It is alleged that petitioner''s husband died in a road accident on 21.1.04 and information to this effect was given to the respondent. The respondent sent a claim form which was to be duly filled in by the petitioner. Petitioner returned it along with the documents. In spite of receipt of all the documents and the claim form, respondent did not settle the claim. Thereafter, petitioner issued a legal notice dated 19.5.2010. Respondent in reply to the said legal notice stated that the said policy was cancelled and it was intimated to the husband of the petitioner in the year 2002 itself. Since, the policy was not in force, they are not liable to pay any amount to the petitioner for the accidental death of her husband. However, no such information was received by her husband during his life -time.

IT is also alleged that respondent in its letter dated 12.3.2004 while issuing claim form to the petitioner has mentioned that "Claim is subject to the outcome of the case pending in the Andhra Pradesh High Court". However, petitioner is not aware as to what case is pending in the High Court. The cause of action arose on 21.1.2004 and also continued on 19.5.2010, when the legal notice was issued to the respondent. Accordingly, petitioner had sought the following reliefs in her complaint; "(i) To pay policy amount of Rs. 5,00,000 to the complainant with proportionate interest @ 12% p.a. from 16.4.2004 (i.e. from the date of submission of claim Form)

(ii) To pay for an amount of Rs. 1,50,000 towards mental agony and torture and physical sufferance caused to the complainant due to the immoral and illegal act of the opposite party which amounts the deficiency of service in discharging their statutory duties and obligations.

(iii) To award Rs. 50,000 towards penalty for the pecuniary damages and incidental charges caused to the complainant and costs of the litigation charges."

Respondent in its reply has stated that on intimation of death of the deceased, respondent issued a claim form and furnish details and documents. It is submitted that issuance of claim form itself does not amount to admission of claim. The intention of claim form is to register the claim and verify the genuinity and validity of the claim.

IT is further stated that on verification it was found that a Long Term Group Janta Personal Accident policy was issued by the respondent in the year 2002 to cover the risks of Advocates enrolled under the Bar Council of Andhra Pradesh. The said policy was cancelled and intimated to insured in the year 2002 itself. Thus, no policy is in force. Hence, respondent has no liability under the above mentioned policy.

DISTRICT Consumer Disputes Redressal Forum -II, Hyderabad (for short, ''District Forum'') dismissed the complaint, vide order dated 7.1.2012. Being aggrieved, petitioner filed an appeal before the State Commission which also dismissed the same.

HENCE , this petition.

WE have heard learned Counsel for the petitioner and gone through the record. It has been contended by learned Counsel for the petitioner that State Commission had dismissed the appeal without taken into consideration the additional documents filed by the petitioner and as such it ought to have remanded the matter back to the District Forum. Secondly, the unilateral cancellation of the Janta Personal Accident Policy by the respondent without prior notice to the insured is unfair and unjust. Lastly, there was no delay in filing of the complaint before the District Forum as the claim of the petitioner was pending. Hence, it is a continuous cause of action. In support of its contentions, learned Counsel has relied upon following judgments of this Commission: (i) Prabodh J. Kothari v. Oriental Insurance Company Ltd. and Others, : II (2013) CPJ 28B (NC) (CN);

(ii) IFFCO Tokio General Insurance Company Ltd. and Another v. Gokak Textiles Ltd.,, III (2012) CPJ 522 (NC) and

(iii) Devender Singh v. Oriental Insurance Company Ltd., : IV (2013) CPJ 607 (NC).

IT is an admitted fact that as per petitioner''s own case, deceased -insured had died in a road accident on 20.1.2004. As per letter dated 24.7.2002 placed on record by the petitioner herself (at page No. 54 of the paper book) "the Long Term Janta Personal Accident Policy of the deceased - E. Nara, Narayana had already been cancelled as early as on24.7.2002".

UNDER these circumstances, at the time of death, no policy issued by the respondent in favour of deceased was in existence. Hence, present petitioner had no cause of action to file any complaint against the respondent. Be that as it may, as per averments made by the petitioner in the complaint filed before the District Forum, it is stated: "that cause of action arose on 21.1.2004 when husband, of the appellant died in the road accident and continued to be arose on 9.3.2004 when complainant gave death of intimation to the opposite party about accidental death of her husband."

IN the same breath, it has been averred by the petitioner in the complaint, that the cause of action also continued to arose on 19.5.2010, when the petitioner issued legal notice to the respondent and finally on 7.7.2010, when respondent denied her claim.

AS already noted above, the policy in question had been cancelled on 24.7.2002, as such the deceased was not having any insurance cover on the date of accident. Moreover, petitioner has not placed on record the policy which was issued in the name of deceased as on the date of accident. Section 24A of the Act, deals with limitation and it read as under: "24A. 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 & Co. v. National Insurance Co. Ltd. and Another, : III (2009) CPJ 75 (SC): 2009 CTJ 951 (Supreme Court) (CP), took view of the observations made in case State Bank of India v. B.S. Agricultural Industries, : II (2009) SLT 793 : II (2009) CPJ 29 (SC) : 2009 CTJ 481 (SC) (CP), as under: "12. Recently, in State Bank of India v. B.S. Agricultural Industries, : 2009 CTJ 481 (SC) (CP), this Court, while dealing with the same provision, has held:

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."

This plea of learned Counsel for the petitioner, that cause action will arise from the date of service of the legal notice dated 19.5.2010, is of no help to the petitioner. It is well settled that by serving the legal notice or by making representation, the period of limitation cannot be extended. In this context, reference can be made to Kandimalla Raghavaiah & Co. (supra), wherein 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 , on the face of it, the complaint filed before the District Forum was barred by limitation and no application for condonation of delay was filed on behalf of the petitioner. The present revision is liable to be dismissed on this ground alone.

UNDER these circumstances, none of the judgments cited by learned Counsel are applicable to the facts of the present case, since the cause of action as per petitioner''s own case arose on 21.1.2004, whereas the complaint was filed before the District Forum only in the year 2010. Moreover, the insurance policy was terminated in the year 2002 itself, that is, prior to the date of accident. Therefore, no fault can be found with the impugned order passed by the State Commission. The present petition filed by the petitioner is nothing but gross abuse of the process of law. Accordingly, present revision petition stand dismissed with cost of Rs. 5,000 (Rupees five thousand only).

PETITIONER is directed to deposit the cost by way of demand draft in the name ''Consumer Legal Aid Account'' of this Commission, within four weeks from today.

IN case, petitioner ''fails to deposit the cost within the prescribed period, then she shall be liable to pay interest @ 9% p.a., till realization. List for compliance on 22.8.2014.