United India Insurance Co. Ltd. vs DHANSUKHBHAI MANABHAI VAGHELA

ALL these appeals arise from orders dated 8.8.2003 rendered by the learned Consumer Disputes Redressal Forum, Banaskantha in Consumer Case Nos. 77/2003, 78/2003, 79/2003, 80/2003, 81/2003 and 82/2003 directing the opponent Insurance Company to pay to the complainants the amount under IMT 5 clause of the policy of insurance in question.

THE only question which had arisen before the learned Forum and has been taken before us is the question of limitation. It is not in dispute that the complaint before a Consumer Forum is required to be filed within two years from the date from which the cause of action arises in favour of the complainant. In the present case, it is also not in dispute that the policy of insurance was taken by the owner of the vehicle in question namely Mr. Jayantilal Mohanlal Tanna who was neither a party to the complaint before the learned Forum nor in any way concerned with regard to processing of the claim under IMT 5 clause of the policy of insurance in question. It is also not in dispute that the present complainants have filed Motor Accident Claims Petitions before the Motor Accident Claims Tribunal, Banaskantha at Palanpur in the year 1997. It is further not in dispute that the accident involving the vehicle insured under the policy of insurance in question occurred on 30.11.1996. Finally it is not in dispute that for the purpose of obtaining No Fault Liability claim in the pending MAC Petitions, policy of insurance in question was required to be produced and the claim was preferred and also paid. All that happened pursuant to the application so moved before the learned Motor Accident Claims Tribunal on or around 21.4.1997. THE present complaints came to be filed before the learned Forum on or around 12.5.2003, after passage of nearly six years. Thus, there clearly appears to be delay of around 4 years. THE delay was sought to be explained by the complainant by filing affidavit of one Babubhai Thakkar through whom the complainants alleged to have acquired knowledge about the existence of their rights under IMT 5 clause of the policy of insurance in question. As a matter of fact, such contention of fact could not have been entertained by the learned Forum inasmuch as the policy of insurance was required to be produced by the complainants themselves in the pending Motor Accident Claims Petitions for the purpose of claiming No Fault Liability amount under the relevant provisions of the Motor Vehicles Act, 1988. We have been informed that serious fraud was alleged in respect of claims preferred by number of people in similar fashion after passage of years together and the matter is pending investigation before the C.B.I. We, therefore, do not propose to accept the facts alleged in the affidavit of Babubhai Thakkar. However, broadly stated, his affidavit will not help the complainants for the simple reason that they had the knowledge about the existence of their right way back in the month April, 1997. Examined from any point of view, the complaints were miserably time-barred before the learned Forum under Section 24A of the Consumer Protection Act, 1986. We have been taken through the decision in the case of Managing Director, HCL Ltd. v. Santosh Kumar, reported in IV (2003) CPJ 20 (NC) where the National Commission has held that ignorance of limitation period will not provide ground for claiming condonation of delay. In the decision of the National Commission in the case of Kandimalla Ragavaiah and Co. v. The New India Assurance Company Limited and Ors., reported in III (2002) CPJ 259 (NC)=2003 (1) CPR 13 (NC), the National Commission held that the plea taken by the complainant that the complainant''s bank had preferred the claim at the earliest point of time would not hold the cause of the complainant. In P.K. Ramachandran v. State of Kerala and Anr., reported in AIR 1998 SC 2276, the Apex Court has held that Law of Limitation has to be applied with all its rigour prescribed by statute and it cannot be extended on equitable grounds.

The learned Advocate for the complainant, however, would refer to decision of the Apex Court in the case of Dhannalal v. D.P. Vijayavargiya & Ors., reported in I (1996) ACC 603 (SC)=1996 ACJ 1013. Question that was considered by the Apex Court was whether the claimant was entitled to the benefit of amended provisions of the Motor Vehicles Act, 1988. The MAC Petition was pending and the question of limitation was agitated till up to the Supreme Court. The Apex Court has held that the amended provision of Section 166(3) of Motor Vehicles Act, 1988 would not be applicable to a case where the petition was filed beyond limitation and came to be rejected and the claimant allowed the same to become final. In our considered opinion, this case will not have any application to the present case both on facts as well as on law. Same will be the position with regard to decision in the case of New India Assurance Company Limited v. C. Padma & Anr., reported in III (2003) ACC 319 (SC)=V (2003) SLT 557=2003 ACJ 1999.

THERE is another aspect of the present matters. The complainants are not parties to the contract of insurance where one of the clauses known as IMT 5 clause is sought to be taken advantage of for claiming compensation under the policy of insurance in question referable to the aforesaid clause. It is an admitted position that the contracting party being the owner of the vehicle was not joined as party to the complaints before the learned Forum. It is he who will have to explain the passage of period of limitation because he will have to present the claim on behalf of the beneficiaries under the aforesaid clause. It is not shown whether he has undertaken that exercise at any point of time. As stated above, he is not a party to the complaints. The complainants have not preferred any claim before the opponent Insurance Company while joining the aforesaid contracting party with them. If that is so, there cannot be any deficiency in service on the part of the opponent Insurance Company which would provide cause of action. The definition of word ''consumer'' as contained in Section 2(1)(d) of the Consumer Protection Act, 1986 clearly indicates that the beneficiary of service would be a ''consumer'' with the approval of the contracting party or the party who hires or avails the service for consideration from the other party. Thus, there is inherent vice in filing of the complaints. In any view of the matter, the complaints could not have been entertained by the learned Forum. The result is that they have to be dismissed, of course reserving liberty to the complainants for availing of any remedy including remedy of presenting their claims either before the Civil Court or in the pending Motor Accident Claims Petitions. Following order is, therefore, passed. ORDER (1) Impugned order dated 8.8.2003 rendered by the learned Consumer Disputes Redressal Forum, Banaskantha in Consumer Case Nos. 77/2003, 78/2003, 79/2003, 80/2003, 81/2003 and 82/2003 are hereby set aside. Complaints bearing Nos. 77/2003, 78/2003, 79/2003, 80/2003, 81/2003 and 82/2003 are hereby dismissed reserving liberty to the complainants to avail of their remedy, if any, before the Civil Court or in the pending MAC petitions. All these appeals are allowed with no order as to costs throughout. Caveat Applications will also accordingly stand disposed of.

(2) The appellant Insurance Company is stated to have deposited Rs. 25,000/- in each of the appeals. Office of this Commission will verify the amount so deposited and pay the same back along with interest, if any, by A/c Payee cheques to the appellant Insurance Company.

Appeal dismissed.