KRISHAN LAL BHAT vs Oriental Insurance Company Ltd.

MATRIX of this case is that complainant owned a two storeyed pacca building tin roofed at Vater Khani, Kupwara Kashmir. He insured the building with the O.P. under Policy No. 11/98401 from 2.4.1998 to 1.4.1999 for an amount of Rs. 5.00 lacs. On 15.6.1998 complainant came to know that his above building residential house was tortured and there was total loss. He received copy of FIR No. 141 of 1998 under Section 436/RPC on 25.6.1998. On the same day he intimated the O.P. about the loss and raised the claim. His contention is that he raised the claim and asked for compensation through the correspondence which was sent through Courier to the O.P. The O.P. kept mum. According to him O.P. neither accepted the claim nor rejected it. Complainant waited for the action of the O.P. but they on 4th July, 2002 wrote a letter to the complainant informing him that no such claim was raised with the O.P. and complainant was asked to take up the matter with Delhi Branch with whom the property was insured. This letter is written by Divisional Manager, Srinagar of Oriental Insurance Company. Complainant alleges that this letter has given cause of action to him and he filed this complaint before this Commission.

O.P. was noticed. They resisted the complaint mainly on two grounds. They accepted the insurance policy but contended that the property insured was not situated in Vater Khani Kupwara as alleged by the complainant but complainant through this policy has insured his Delhi property situated at Yamuna Vihar, Delhi. Secondly, the whole correspondence of complainant was denied to have been received by the O.P. Their contention is that the complaint is belated by 4 years and is not entertainable in the eyes of law. Parties led their evidence. Complainant has examined himself and the O.P. has examined Shri Zutshi, Asstt. Divisional Manager, Oriental Insurance Company, Town Hall Branch, Jammu.

Heard learned Counsel for the parties. Learned Counsel for the O.P. has at the outset taken a U turn from the stand taken in the written version. He has come up with clear admission accepting the insurance policy for the property at Kupwara which is the stand of the complainant. He has done it rightly so because the complainant has filed photo copy of the document of original policy. We have also been shown copy of the same by the Counsel for complainant wherein O.P. has clearly accepted that such policy was for the property situated in Kupwara Vater Khani so the dispute is about the property which is situated at Kupwara. Learned Counsel for the O.P. has contended that the complaint is belated and time barred and has reiterated that he has based his argument on M/s. Kerala Agro Machinery Corporation Ltd. v. Bijoy Kumar Roy, II (2002) SLT 267=AIR 2002 SC page 1210, June Part and Oberio Trading Corporation v. United India Insurance Company, II (1992) CPJ 523 (NC), decided by the Apex Court and National Commission respectively. Learned Counsel has contended that the complaint is barred by time. It has not been filed within 2 years from the date of loss. Learned Counsel for the complainant has refuted all these arguments on the ground that once complainant raised the claim immediately after the occurrence that claim was neither allowed nor was repudiated till 4th of July, 2002 on which date the O.P. has informed the complainant by correspondence that no claim was raised with them by Srinagar Branch and claim was barred by time and the property was insured with Delhi Branch. According to the complainant immediately after receiving this letter which gives cause of action to him he approached the Commission. We have given thoughtful consideration to the arguments advanced before us and we have perused both the judgments relied upon by the Counsel for O.P. Both the judgments are distinguishable from the present case. In the Apex Court judgment supra there was a defect in the machinery purchased by the complainant from the O.P. i.e., M/s. Kerala Agro Machinery Corporation. Complainant remained silent for 4 years and thereafter filed a complaint about the defective goos before the Forum regarding insurance claim and no Limitation Act was applicable at that under the Consumers Protection Act and no cause of action was in dispute. Similarly National Commission case also we have perused. This also relates to a claim in which the Insurance Company accepted the part of the claim for Rs. 2,137.50. The complainant was demanding more compensation. He filed the claim after a long period. It is in this context the National Commission has said that more correspondence of complainant will not extend the time/period of limitation.

HERE the facts of the case in hand are quite different. Loss has been caused to the house on 13/14th June, 1998. Complainant was living in Jammu Migrant Camp when he came to know about the loss, immediately the other day 25.6.1998 he raised the claim with the O.P. and sent an intimation through World Courier registered under No. 25174 dated 29.6.1998. It was sent to Delhi Branch because the complainant had insured his property at Kupwara through Delhi Branch. The complainant at that time was residing in Noida that is why he insured the property with Delhi Branch. He sent FIR also with this intimation. Subsequently on 4.12.1998, 17.11.1999, 9.1.2001, 18.12.2001, 6.6.2002 all these claims were sent through courier, registered and by ordinary post photo copies of the receipts are on the file and original have been perused in the Court. It is established that the complainant has sent all these claims to the O.P. but the O.P. kept silent for the entire period. O.P. did not accept the claim nor repudiated it. It is only on 4.7.2002 that the O.P. has broken the ice by sending a correspondence to the complainant stating therein that his claim is time barred. He did not receive any correspondence and the property is insured with Delhi Branch. Learned Counsel for the complainant has rightly contended that this letter has given the cause of action to the complainant who came up with the complaint before this Commission. O.P. has in his objection outrightly denied that the property insured is not situated in Kupwara but in Delhi. They examined Assistant Divisional Manager, Mr. Zutshi who has reiterated in his statement that the property in Kupwara which the complainant alleged to have been insured is not with them but it is some different property in Delhi insured with the Delhi Branch. Now the learned Counsel for Insurance Company has taken a U turn by accepting that the property situated in Kupwara was insured with their Company. It is so because the complainant produced a document of the Insurance Company wherein it was written that Kupwara property was insured under this policy. In such circumstances we can safely come to a conclusion that the O.P. after receiving the registered correspondence from the complainant raising the claim has deliberately kept mum for years together. They have not bothered to investigate the case to see whether the claim is genuine. They have neither investigated the claim nor accepted or denied it. After three years they have sent the correspondence that the claim is not payable because it is barred by time. Even in this letter also they are not sure whether the property situated in Kupwara is insured or not. By keeping mum for the statutory period and then rejecting the claim on the ground of limitation tantamounts to deficiency of service and it squarely indicates that intention of the company was not based on bona fides. They cannot take a benefit out of their own illegal act. It was bounden duty of the Insurance Company after receiving the claim to investigate it and come to a clear conslusion whether the claim is to be accepted or not. Keeping mum for the statutory period after receiving correspondence after correspondence and allowing the time to go and then they reacted by sending correspondence rejecting the claim is not a bona fide act which cannot be allowed to benefit the Insurance Company. Learned Counsel for complainant has relied on Smt. Govindra Khurana and Another v. M/s. Satya Sai Apartments (P) Ltd. and Others, II (1996) CPJ 18 (NC)=1996 (1) AICJ 195 NC. In this case National Commission has held that the cause of action will arise only from the date of repudiation of the claim. Similarly Section 18-A, J and K Consumer Protection Act is clear enough and throw directly light on the point providing 2 years limitation from the date on which the cause of action arises. HERE in this case cause of action has arisen on 4th July, 2002 on which date the Insurance Company has come out from the slumber of silence and has rejected the claim on the basis of limitation. After receiving this letter complainant has immediately approached the Commission. For these reasons, therefore, we are convinced that the claim is within time. Now the question arises as to what compensation the complainant is entitled to. Insurance Company it is obvious has impliedly admitted that they have dealt with the case carelessly after 4-5 years of the incident they came to know that the property for which the compensation is demanded was insured under the policy otherwise it had not bothered to see whether the property gutted by fire was insured with them or not. From the conduct of the Insurance Company it is simply clear that they have failed in discharging their lawful duties which tantamounts to deficiency of service. They have not even bothered to assess the loss. Now a long time has elapsed since the date of the loss and it would be difficult now to ask the Insurance Company to assess the loss because the loss has taken place as far back as in June 1998. It is not for the first time that we come across with such situation. We have dealt with such case many a times and especially in Raj Kumar Khurana v. Oriental Insurance Company, Complaint No. 2209/2001 decided on 18.12.2001. Facts of this case are similar to the case in hand. In this case Commission has accepted the claim and has given the compensation on the basis of doctrine of approximation and has deducted 40% from the total insured amount and has allowed the complaint. In the case supra, we have mentioned that the Hon''ble High Court also has up held this view in another case titled National Insurance Company v. Mohammed Sarwar, CIMA No. 162/98, on this basis we allow this claim also and allow the compensation and deduct 40% from the insured amount and rest of the amount shall be paid by the Insurance Company to the complainant. O.Ps. are directed to pay Rs. 3.00 lacs as 60% of the insured amount along with 9% interest from 4.7.2002. Rs. 3,000.00 as compensation and Rs. 2,000.00 as litigation charges are also allowed. The whole amount be paid to the complainant by the O.P. within a period of six weeks from today. A copy of this order be given to the parties to be collected by them on their own or through their authorised agent. Complaint disposed of.