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Judgment
V.K. Jain, J
The appellant/complainant obtained an insurance policy from respondent no.1 for the period from 01.01.1998 to 31.12.1998 which was later extended upto 30.06.1999. A claim under the said policy was lodged by the complainant with respondent no.1 on 28.06.1999. Though a surveyor was appointed by the insurer to examine the claim, the same was repudiated by the insurer vide letter dated 15.01.2003 which, to the extent, it is relevant, reads as under:
We have examined your claim under the above mentioned policy. The above mentioned Professional Liability Policy was taken w.e.f. 1.1.98 to 31.12.98 and was extended upto 30.6.1999. The claim was made on 28.6.1999. The disputed job TLF area flexible pavements was completed and handed over to I.O.C. on 28.2.97, but this portion was not put to you as the total plant mechanical complication took place on 19.6.98. There was no professional liability insurance policy during the construction period.
The cause of loss (which is design deficiency) cause before the commencement of policy period 1.1.98. Such error/omission is covered under the policy if it occurs during the policy period. The cause of action in the present case had occurred before 1.1.98 when the work of roads/pavement was completed on 28.2.97.
The policy excludes liability for any loss arising as a result of any action which has its origin prior to retroactive date, which in the policy schedule is given as 1.1.98. The relevant exclusion reads as under:-
"There shall no liability hereunder for any claim made against the insured for act committed or alleged to have been committed prior to retroactive date-specified in the schedule."
Instead of approaching a Court or a Consumer Forum for the redressal of its grievance, the appellant/complainant wrote a letter dated 30.01.2003 to the insurer seeking a dialogue with them alongwith its client M/s Indian Oil Corporation. No such discussion however, was held. A detailed letter dated 19.02.2003 was then sent by the complainant/appellant to the insurer seeking re-imbursement of the claim on merits. The insurer, vide letter dated 08.05.0003, sent by its Head Office informed the complainant that they were referring the matter to Delhi Regional Office, to take appropriate action, for redressal of the grievance on merits. However, Delhi Office did not respond before 20.09.2006 when it informed the complainant/appellant as under:
We are In receipt of a copy of your letter ref no. 3412/110 dated 14th Sept, 2006 original addressed to our Divisional Office no. 18, New Delhi in respect of the abovementioned subject. We sincerely acknowledge your letter and assure you that you shall be hearing from our concerned office in a short span of time.
We have already advised our operating office to respond to your query and clarify the company's stand in the matter under reference.
This was followed by a letter dated 25.09.2006, which to the extent, it is relevant, reads as under:
This has reference to your letter dated 14.9.2006. We would inform you that vide our letter dated 15th January, 2003 we had elucidated the reasons for rejection of your claim. We reiterate the same as under:
The above mentioned Professional Liability Policy was taken w.e.f. 1.1.98 and the cause of loss, which was design deficiency, arose before the commencement of the policy period. The claim in the present case had occurred before 1.1.98 whereas the work of roads/pavement was completed on 28.2.97.
As per the policy terms and conditions any loss arising as a result of an action which has its origin prior to the retroactive date is not covered. In view of the above the claim made by you was not admissible and hence was repudiated by the Competent Authority.
Vide letter dated 20.10.2006, the Delhi Office of the insurer informed the complainant/appellant as under:
As per our understanding, the claim was repudiated by us on the grounds of there being no professional indemnity insurance during the construction period which is when the loss is deemed to have occurred. The claim was repudiated by our Head Office and the same was communicated to you vide letter dated 15.1.2003. Almost four years have elapsed since then. If there are any additional facts pertaining to the claim which have come to light, please apprise us of the same to enable us to have a fresh look at the matter.
Since the claim was not paid, the complainant/petitioner approached the High Powered Committee in December 2006 seeking permission to initiate legal proceedings against the respondent, both, the complainant as well as the insurer being Public Sector Companies. The Go Ahead from the High Powered Committee came on 20.08.2007 and the Consumer Complaint was filed on 11.09.2007.
Alongwith the Consumer Complaint, the appellant/complainant also filed an application u/s 24A of the Consumer Protection Act seeking condonation of delay in instituting the complaint.
Vide impugned order dated 15.04.2019, the State Commission dismissed the application seeking condonation of delay in filing the Consumer Complaint and consequently, dismissed the said complaint.
Being aggrieved, the appellant/complainant is before this Commission.
It would be seen from the above referred chronology that the claim was repudiated by the insurer way back on 15.01.2003. Though the complainant/appellant kept on making representations to the insurer for re-consideration of the claim, no assurance of any kind was given by the insurer to the complainant. The cause of action to approach the State Commission by way of a Consumer Complaint arose to the appellant/complainant on 15.01.2003 when the claim was repudiated. The subsequent letters sent by the insurer to the appellant only reiterated the repudiation already made on 15.01.2003. No additional ground for repudiation of the claim was given to the complainant/appellant. Therefore, the said letters, in my view, did not give any fresh cause of action to the complainant/appellant to institute the Consumer Complaint.
It is true that considering the decision of the Hon'ble Supreme Court in ONGC-I, 1992 Supp (2) SCC 432; ONGC-II, 1995 Supp (4) SCC 541; ONGC-III v. CCE, (2004) 6 SCC 437, the complainant/appellant was required to take clearance from the High Powered Committee before instituting legal proceedings against the insurer, both the companies being Public Sector Undertakings, but the complainant did not even approach the High Powered Committee within the prescribed period of limitation which expired on 15.01.2005. The High Powered Committee was approached much later in December 2006. Had the appellant/complainant approached the High Powered Committee within the prescribed period of limitation for instituting a Consumer Complaint, the benefit of the time taken in obtaining the clearance, could certainly have been made available to complainant/appellant. However, the complainant did not approach the High Powered Committee with promptitude. In any case, even if I give the benefit of the time taken in obtaining the clearance from the High Powered Committee, that would be of no avail to the complainant/appellant the said period being only about 8-9 months and the delay in instituting the Consumer Complaint being more than 2½ years. Thus, from whatever angle I may look at it, the Consumer Complaint was patently barred by limitation and no justification for condonation of the abnormal delay in instituting the said Consumer Complaint was shown by the complainant/appellant.
The provisions of Section 24A of the Consumer Protection Act are peremptory in nature and unless sufficient cause is shown for condonation of delay in instituting a Consumer Complaint, the Consumer Forum cannot admit a complaint instituted after expiry of the prescribed period of limitation. A reference in this regard can be made to the decision of the Hon'ble Supreme Court in State Bank of India Vs. B.S. Agriculture Industries II (2009) CPJ 29 (SC).
Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus:
"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."
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 own5 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.
For the reasons stated hereinabove, I find no merit in the appeal, which is therefore, dismissed without any order as to costs.