NEW INDIA ASSURANCE COMPANY LIMITED vs Sanjay S/O Kishankumar Parikh

THIS revision petition has been filed by the petitioner against order dated 18.3.2013 passed by State Commission in First Appeal No. A/08/1247 - Senior Divisional Manager, The New India Assurance Co. Ltd. Vs. Sanjay; by which while dismissing appeal, order of the District Forum allowing complaint was upheld.

BRIEF facts of the case are that complainant/respondent was running business of lubricant oil and had taken insurance coverage from opposite party/ petitioner. On 2.7.2005, certain unknown persons spilled about 30 barrels of oil on the ground in the godown. Complainant intimated to the Police authorities and submitted claim with the opposite party. Opposite party vide letter dated 19.1.2006 repudiated claim as malicious act coupled with house breaking was specifically excluded from the scope of policy. Alleging deficiency on the part of opposite party, complainant filed complaint before District Forum. Opposite party resisted complaint and submitted that claim was rightly repudiated and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed opposite party to pay Rs. 2,39,000/ - with 9% interest p.a. and to pay Rs. 1,000/ - as cost. Appeal filed by opposite party was dismissed by Learned State Commission vide impugned order against which this revision petition has been filed.

HEARD Learned Counsel for the parties finally at admission stage and perused record. Learned Counsel for petitioner submitted that complaint was time barred and without condoning the delay Learned District Forum committed error in allowing complaint and Learned State Commission further committed error in dismissing appeal, hence, revision petition be allowed and impugned order be set aside. On the other hand, Learned Counsel for respondent submitted that order passed by Learned State Commission is in accordance with law, hence, revision petition be dismissed.

INSTEAD of going on merits of the case, it is to be seen whether complaint was barred by limitation or not. Admittedly, opposite party repudiated claim vide letter dated 19.1.2006 and complaint was filed on 26.2.2008, meaning thereby, it was filed after more than 33 days of limitation of two years. Complainant neither moved application for condonation of delay in filing complaint nor requested for condonation of delay in the complaint itself. Opposite party in its written statement specifically pleaded that there was delay of 33 days in filing the complaint which was not explained, hence, complaint be dismissed.

THUS , it becomes clear that there was delay of 33 days in filing complaint and as complaint was barred by limitation, Learned District Forum could not have allowed complaint. Learned Counsel for petitioner has placed reliance on judgment of Hon''ble Apex court in - Ragho Singh Vs. Mohan Singh and Ors., 2001 9 SCC 717; in which it was held that where appeal was filed after 10 days, it was liable to be dismissed in absence of application under Section 5 of Limitation Act for condonation of delay. He also placed reliance on judgment of Hon''ble Apex Court in - Noharlal Verma Vs. District Cooperative Central Bank Limited, Jagdalpur, 2008 14 SCC 445; in which it was observed "if suit, appeal or application is beyond limitation, court or adjudicating authority has no jurisdiction, power or authority to entertain the matter and decide it on merits. The court has an independent duty to look into aspect of limitation even though limitation has not been set up as a defence". In the case in hand, opposite party specifically pleaded that complaint was barred by limitation even then neither complaint filed application for condonation of delay nor delay was condoned by District Forum and in such circumstances, District Forum had no jurisdiction to allow the complaint without condoning delay. Learned State Commission also committed error in dismissing appeal and revision petition is to be allowed.

CONSEQUENT LY , revision petition filed by the petitioner is allowed and order dated 18.3.2013 passed by Learned State Commission in FA No. A/08/1247 - Senior Divisional Manager, The New India Assurance Co. Ltd. Vs. Sanjay; and order of District Forum dated 26.2.2008 passed in Complaint No. 175/2008 - Sanjay Vs. Sr. Divisional Manager, New India Insurance Co.; is set aside and complaint stands dismissed as barred by limitation with no order as to costs.