P. SAVITHRI vs BRANCH MANAGER, UNITED INDIA INSURANCE CO.

THIS is an application filed under Section 17 of the Consumer Protection Act.

THE complainant was doing business in exporting prawns and other items. She took a loan from the Kerala Financial Corporation for construction of building and for rai sing working capital. She approached the Syndicate Bank in 1984. A loan facility upto Rs. 4,50,000/- was granted by the Syndicate Bank which was raised to six lakhs subsequently. THE prawns purchased were kept in the frozen store which was of 60 metric tonnes capacity. It is alleged by the complainant that the stock used to be reported to the bank and the bank used to verify the stock. Based on the purchase bills, 75% of the value of the goods was advanced to the complainant. THE complainant used to find out consignors outside India to export prawns. On exporting, the price would be received by the Bank and the amount advanced would be deducted and the balance would be credited to the account of the complainant. It is also the case of the complainant that a time when there was a stock of 8 lakhs worth goods, the Bank insisted to insure the goods and goods were insured with Opposite Parties 1 and 2 covering the period from 21.12.86 to 20.12.87. THEre were some labour disputes in the factory in the beginning of December 1986. THE service of some of the labourers was terminated. THE union insisted to take them back. THE management was not willing. THEreupon the union struck work from 20.12.86. Though the management approached for police protection that was refused. However, the High Court gave certain directions to the Conciliation Officer for attempting at a settlement. According to the complainant the labourers became aggressive. THEy damaged the door of the freezer and they did not allow the management to repair or replace the door with the result that the whole goods stocked in the freezer became decayed. The management informed the Insurance Company on 8.1.87. They also sent the Manager to the Insurance Company. The complainant was directed to take up the matter with the higher authorities. Higher authorities were addressed on 17.1.87. According to the complainant they did not take any action. With the help of the labourers decayed goods were removed on 10th and 11th January, 1987. The Surveyor was deputed by the Opposite Parties 1 and 2 on 21.1.87 and he submitted a report on 12.12.87. Thereafter the claim was repudiated by the Opposite Parties on 14.9.87. On these allegations the complaint was filed on 29.12.91.

Opposite Parties 1 and 2 filed version raising various contentions. It was contended that this Commission has no jurisdiction. It is also averred that many complicated issues of fact and law are involved and a number of documents and witnesses are to be examined which can only be tried in a Civil Court. It is further averred that the claim was hopelessly barred by the Law of Limitation as the Opposite Parties repudiated the claim as early as 14.9.87. It is also stated that the averments in paragraphs 3(iii)b(i) and (iii)(c) that the Opposite Parties discarded the request of the complainant is absolutely false. It is stated that apart from the terms and conditions of the policy there is no obligation on the part of the Insurance Company to remove the said goods, and that the insured was duty bound to take appropriate action to avoid the loss to the maximum extent. It is further contended that if the story put forward by the complainant was true, she would have definitely taken appropriate steps, including legal action for removal of the goods at the appropriate time before it got damaged as alleged. It is stated that the Opposite Party got intimation regarding the alleged loss by the letter dated 17.1.87 addressed to the Opposite Party''s Head Office at Madras. It is utter falsehood that the complainant gave intimation on 8.1.87. Immediately on receipt of intimation, the Opposite Parties arranged Surveyor to assess the loss if any. The Surveyor visited the premises, made detailed enquiry and Survey Inspection on 28.1.87 and a final report was filed on 12.2.87. Since the stock of the sea foods reported to be damaged was destroyed by the insured, no physical verification was possible. It was also stated that no books of account, audited account, stock register and other similar documents were produced to verify whether there was any loss. In the circumstances the Surveyor submitted his report dated 12.2.87 stating that no insured peril have occurred and hence as per the policy condition, the claim was not admissible. Another investigation was also arranged by the Opposite Parties. The investigation report dated 7.3.87 also shows that there is no evidence to prove that the insured has destroyed the spoiled stock by throwing to the river. The Opposite Parties averred that the complainant''s claim was false, concocted and frivolous. The Opposite Parties repudiated the claim by their letter dated 14.9.87. The Opposite Parties also denied that the complainant informed the first Opposite Party by their letter dated 8.1.87 that due to strike by workers frozen foods worth more than eight lakhs rupees were getting damaged. No such letter was sent and the Opposite Parties had no information about any of these before they got the complainant''s letter dated 17.1.87. It is further stated that the allegation in the present complaint is that the strike started in the plant during the first week of December whereas in the notice issued to the Opposite Party by lawyer on 11.10.87, it is stated that strike started on 28.12.87. These contradictory statements by the complainant reveal that the story put forward by the complainant is false. It is further averred that the complainant only discloses that the complainant approached the police authorities and Hon''ble High Court for getting protection to the plant and not for removing the frozen foods to minimise and avoid the alleged loss. She could have obtained police protection for removal of fish products at least by moving the High Court. It is only after full investigation the claim was rejected and therefore, there is no scope for the complaint before this Commission under the Consumer Protection Act. A preliminary objection was taken by the Opposite Parties that the claim was repudiated on 14.9.87 and the complainant had three years'' period for filing a suit under the Limitation Act, but the complaint was filed only on 29.12.91 long thereafter and, therefore, the claim is barred by limitation.

THE Counsel for the Opposite Party insisted that this preliminary question has to be decided first and accordingly we heard the parties on the preliminary objection raised. Article 44(a) of the Limitation Act provides a period of three years from the date of repudiation to file a suit. It is true at the time when the complaint was filed no period of limitation was prescribed under the Consumer Protection Act for preferring a complaint. However, the National Commission has held that the period prescribed by the Limitation Act would apply and a complaint filed beyond that period is unsustainable. It has come out that the Bank had filed a suit O.S. 64/ 1989 in the Sub Court for recovery of the loan taken by the complainant from the Opposite Party. It is not disputed that the goods were given as security. THE suit was decreed on 30.8.90 and it is thereafter the present complaint was preferred. In Rawat Enterprises P. Ltd. v. National Insurance Company, I (1991) CPJ 240, the National Commission upheld the view taken by the State Commission that a claim of Insurance has to be preferred within three years from the date of repudiation and the claim preferred after expiry of said period is barred by limitation. Similarly in Prasad Nagar Residents''Organisation v. THE Vice-Chairman, Delhi Development Authority, I (1991) CPJ 55 (NC), where the complaint was preferred alleging deficiency in service, the National Commission held that any complaint regarding alleged deficiency in service rendered should have been brought within three years from the date of taking over the flat. THE same principle was laid down by the National Commission in M/s. Oswal Fine Arts v. M/s. H.M.T. Madras, I (1991) CPJ 330 (NC) and in M. Sahli v. United India Insurance Company Ltd. Mangalore, II (1991) CPJ 660 (NC), in Mrs. R.D. Chinoy v. Central Bank of India, II (1992) CPJ 557 (NC) and also in Akhil Bharathiya Grahak Panchayat & Another v. Simpson & Co. Ltd. & Others, 1993 (3) CPR 377. Learned Counsel pointed out that a suit was pending before the Sub Court and also an O.P. 2791/88 is pending and these circumstances have to be taken into account in considering the question of limitation. They are no proceedings initiated against the Insurance Company. We are unable to accept this contention. Learned Counsel also pointed out that under Section 24A of the Consumer Protection Act, which was inserted by the Consumer Protection Amendment Act, 1993 there is provision to condone the delay. He argued that the complainant has filed a petition to condone the delay.

WE are unable to accept this contention as well. In the first place that provision came into force only with effect from 18.6.93 and is not applicable to a complaint which was filed on 29.12.91. In the second place, these proceedings taken by Bank and again the Union cannot be considered as sufficient reason to condone the delay in filing the complaint against the Insurance Company. The foregoing discussion would show that the complaint is liable to be dismissed upholding the preliminary objection raised by the Opposite Party that the claim is barred by limitation. We do so. We direct the parties to bear their respective costs. Complaint dismissed.