SHAMA JI vs Oriental Insurance Company Ltd

-THE predecessor of the complainants, namely, Mr Brij Lal Pandita was a native of Village Bragam Duru, Tehsil Anantnag (Kashmir ). On the eve of spurt of fundamentalistic Jehadi separatist movement which engulfed the Kashmir Valley, he was unfortunately forced to leave his hearth and home and become a migrant in his own country. He owned a three-storeyed Pacca House made of burnt bricks having a roof of CGI sheets. In the year 2000, he got the abovesaid house insured with the OPs and obtained "fire policy" which was in currency on 22. 4. 2001 and had to expire on 21. 4. 2001. The policy was being renewed from year to year. During his life-time, the insured Shri Brij Lal Pandita got information that his house had been burnt. He lodged report before the concerned police authorities and on 4. 3. 2001 incident was registered under FIR 14 of 2001 in Police Station, Duru, for the commission of an offence falling under Section 436, RPC. During his life-time, he had been pursuing the case with the insurer but unfortunately on 22. 7. 2003 he died in a road accident in the vicinity of Udhampur Town where he was living as a migrant. After his death, the OPs asked the complainants to furnish to them a copy of Death Certificate as well as a copy of succession certificate. After the receipt of abovesaid documents, the claim of the complainant was repudiated on 4. 11. 2003. The causes assigned in the application for condoning the delay are that after the death of Mr. Brij Lal Pandita who was the bread-winner of the family, the applicants (now complainants) were emotionally shattered and economically completely ruined. When they came out from the Trauma, somebody guided them to come to the Commission for filing the complaint which was time barred by ten months. The delay was not deliberate and was caused also under the belief that non-applicants OPs would settle their claim because on humanitarian grounds they had reopened it.

THIS application has been opposed by the non-applicants on the grounds that Mr. Brij Lal Pandita had died on 12. 7. 2003 and the claim of the applicants was repudiated on 4. 11. 2003. Thereafter they chose not to file the complaint within two years. That the complaint was filed after 11 months and it was allowed to be deliberately time barred. The learned Counsel appearing for the applicants has contended that the bread winner of the family of the applicants met with a tragic death and the applicants were thrown on the road side without any protective umbrella and still have been struggling for their survival. Financial constraints and lack of guidance had prevented them in filing the complaint within time. He has referred to letter dated 11. 7. 2005 written by the Manager of the non-applicants/ops to the applicant/complainant No. 1 (Mrs. Shama Ji ), wherein an assurance was given to the applicants in the following manner: "the matter is being taken up with our concerned office. They (the concerned authorities of the Insurer company) are also being asked to expedite the matter. As soon as we receive reply from the concerned office, we shall inform you suitably. "

This letter which is Annexure-N on the record shows that the claim had been revived by the OPs by taking pity on the deplorable condition of the applicants and after the receipt of the said letter, complaint was filed within a period of two years. That the Jammu and Kashmir Consumer Protection Act, 1987, is a socialistic piece of legislation which protects the rights of the bona fide consumers and the delay is neither mala fide nor intentional so sufficient cause has been shown for condoning the delay under Section 18a of the said Act.

Mrs. Z. S. Watali, Advocate, has countered the arguments by pleading that the insurance policy provided that claim for loss or damages should have been made within twelve months from the date of loss but in this case loss was reported to the Company after such period, so the right to make the claim gets extinguished under the contract of insurance. In support of this contention she has cited the case of Rajinder Kaul v. United Insurance Company Ltd. , 2000 SLJ 456 and National Insurance Company Ltd. v. Sujir Ganesh Nayak and Co. and Another, II (1997) CPJ 1 (SC)=i (1997) ACC 537 (SC)=air 1997 SC 2049.

WE have applied our mind to the facts of the case and find that the law cited by the learned Counsel appearing for the non-applicants/ops has no bearing with the case in hand. The facts of the present case are that when the insured late Shri Brij Lal Pandita came to know about burning of his residential house, immediately thereafter he had raised the claim which was in the process of being settled but the cruel hands of destiny snatched his life in a road accident and thereafter the communication of repudiation of claim dated 4. 11. 2005 was received by the applicants/complainants vide Annexure-K. They have shown sufficient cause in the application how they could not pursue the matter and the communication addressed by the Manager of the OP vide letter dated 11. 7. 2005 to Smt. Shama Ji, applicant/complainant No. 1, shows that the claim had been revived and was waiting final settlement. In the presence of such special circumstance, the claim cannot be said to have been finally repudiated. The facts stated above have established that the delay in filing the complaint was neither mala fide nor intentional. Letter (Annexure-N) is dated 11. 7. 2005 and the complaint was filed on 26. 9. 2006 i. e. within a period of two years which is the prescribed period of limitation. In this view of the matter, we accept the application and condone the delay. Application stands accordingly disposed of. The office is directed to register the complaint in the concerned register. OPs have already filed their written version, which is on the record. Hence the complainants are directed to adduce their evidence and list on 28. 2. 2008. Ordered accordingly.