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Judgment
THIS case pertains to insurance and the main allegation raised by the petitioner/OP is that the complaint is barred by time under Section 24 -A of the Consumer Protection Act, 1986. The petitioner has moved an application for condonation of delay. The delay was explained in para Nos. 2, 3, and 4 of the application for condonation of delay, which are reproduced here, as under : - 1. That opposite party repudiated claim of complainant through its letter dated 28.04.2000 and 24.07.2000 and complainant repeatedly personally contacted opposite party for reconsidering the claim but opposite did not give any reply or intimation about it and complainant was only informed that he will be informed shortly.
That complainant served legal notice to the opposite party on 18.03.2000 through his advocate but even after receiving legal notice, pposite party neither sent any reply nor paid the claim nor communicated any information and opposite parties did not pay any claim till filing of the complaint and deficiency in service continued and cause of action continuously survived.
That complainant has filed the complaint within limitation on the ground of continuous deficiency in service by opposite parties. Even otherwise the delay caused deserve to be condoned in the interest of justice because complainant relying on the assurance of the opposite parties that claim of complainant will be re -considered shortly after contacting higher authorities and he will be informed about it but no information was communicated and complainant got delayed in filing the complaint which deserve to be condoned in the interest of justice otherwise family of complainant will be deprived of justice and he will not get the protection against deprivation caused to him by the opposite parties.
THE complaint was filed on 01.11.20014. The District Forum passed the following order, in this context, at para Nos. 10 and 11: - 10. Claim of complainant was repudiated by opposite parties vide letter annexure R/9 dated 28.05.99 and letter annexure R/10 dated 31.08.99. Complainant also filed application under Section 24 (a) of Consumer Protection Act, 1986 for condonation of delay and submitted that complainant was in constant touch with the opposite party and opposite party used to give assurances to reconsider the claim of complainant, therefore, delay in filing complaint deserves to be condoned. Complainant also filed his own affidavit in support of application. Therefore, in the interest of justice, delay caused in filing of complaint deserve to be condoned on the ground that complainant contacted opposite parties and received assurances of reconsideration and hence complaint filed by the complainant is found to be within limitation and legal objection raised by opposite party is rejected.
Opposite parties repudiated claim of the complainant vide annexure -R/9 dated 28.05.99 on the following grounds: "The claim was forwarded to our higher authorities for decision. We regret to inform you that it has not been possible to admit your claim because as per proviso "b" of the policy the failure of the exporter''s agent is not covered. The loss arose because of shipping agency did not ensure the safe custody of the goods which resulted into auction of the shipment by the port authorities".
THE State Commission, in a cryptic order, confirmed the order passed by the District Forum. It did not discuss the question of limitation. We have heard the counsel for the parties. Counsel for the respondent/ complainant contended that there is a continuous cause of action. The complainant has remained in constant touch with the OP. The OP had assured that the needful would be done, however, the counsel for the complainant admitted that there is no written assurance given by the OP. In support of his case, the counsel for the respondent/ complainant has cited the following authorities: -
1) M/s. Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd., 2000 1 CPJ 1
2) Mrs. Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd., 2011 3 Scale 654
3) State of Nagaland Vs. Lipok AO, 2005 3 SCC 752
4) Collector, Land Acquisition, Anantnag and Anr. Vs. Katiji and Ors., 1987 2 SCC 107
5) Murli Agro Products Ltd. Vs. Oriental Insurance Co. Ltd., 2005 1 CPJ 1
6) Amalendu Sahoo Vs. Oriental Insurance Co. Ltd., 2010 2 CPJ 9
ON the other hand, the counsel for the petitioner/OP, has cited the following authorities: - 1) Ramlal and Others v. Rewa Coalfields Ltd., 1962 AIR(SC) 361
2 Balaram Das Vs. Sarathi Dalapati and Ors.,1988 AIR(OJC) 10
3 Jaswant Kumar Chandulal Ashar Vs. Collector of Customs,1986 8 ECR 454
4) Mostt. Sundari and Anr. Vs. Sakal Sahni and Ors., 1973 AIR(Pat) 150
5 Steel Authority of India Ltd. VS. R.N. Datta, 1984 AIR(Cal) 118
6 Oriental Insurance Co. Ltd. Vs. Sony Cherian, 1999 6 SCC 451
7) M/s. Maya Overseas Pvt. Ltd. Vs. ECGC of India Ltd., Civil Appeal No. 8052 of 2004, decided on 01.09.2009
8) M/s. Surgichem Products (India) Pvt. Ltd. and Anr. Vs. ECGC of India Ltd., Original Petition No. 170 of 1997, decided on 23.10.2008, by this Commission.
WE have perused the judgments filed by the respondent/ complainant, which hardly dovetail with the facts of this case. He has cited farfetched authorities which are inapplicable to the facts of this case. It must be borne in mind that the oral assurances carry exiguous value. It is rudimentary principle of jurisprudence that documentary evidence will always get preponderance over the oral evidence because it is well known axiom of law that ''men may tell lies, but the documents cannot''.
IN the latest authority, reported in Dolphin Offshore Enterprises (I) Ltd. Vs. United India Insurance Co.Ltd., the Hon''ble 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 : - "We 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".
This authority applies to the facts of this case to a hair.
IN O.K. Gaur Vs. Ghoithram Hospital and Research Centre, Special Leave to Appeal (Civil) No. 1115 of 2013, decided on 07.01.2013, the Hon''ble Apex Court upheld the order of this Commission, wherein reliance was placed on another authority of the Hon''ble Apex Court in SBI Vs. M/s. B.S. Agricultural Industries, 2009 CTJ 481 , the Apex court, in para 8, has held, as under : - "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".
THUS , it is clear that the case is hopelessly barred by time. Day -to -day delay, was never explained. We accept the revision petition, set aside the orders passed by the fora below and dismiss the complaint.