H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA-9.

F.A. No. 162 of 2008

Decided on 29.4.2009.



United India Insurance Company Ltd.

Through its Divisional Manager,

Divisional Office, Timber House, Shimla.

.....Appellant.

Versus



Sh. Hira Lal S/o Dhabe Ram

R/o Vill. Bhagwana, P.O. Choktha,

Thsil Banjar, District Kullu, H.P.

….Respondent.

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Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharna, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting ?



For the Appellant. Mr. P.S.Chandel, Advocate.



For the Respondent. Respondent is already ex-parte.

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ORDER



Justice Arun Kumar Goel (Retd.) President.



1. This appeal is directed against the order passed by District Forum, Kullu, dated 4.4.2008. By means of impunged order in complaint No. 158/2007, appellant has been directed to pay Rs. 18,577/- alongwith interst @ 9% per annum from the date of institution of the complaint till payment alongwith cost of Rs. 2000/-.



2. Sh. Chandel learned counsel for the appellant stated at the bar that vehicle bearing registration No. HP-49A-0114 was insured with his client and was owned by the respondent on 20.4.2004, when it met with accident. After receipt of information regarding accident, surveyor was deputed to assess the loss. Finally the matter was amicably settled between the parties, as such vide Annexure-D, on 25.2.2005, sum of Rs. 41,423/- was received by the appellant. With the receipt of this amount claim of the respondent for compensation qua the accident in question stood fully satisfied per Sh. Chandel.



3. After having got the amount, complaint was not maintainable. District Forum below fell into error firstly after having entertained the same and then by passing the impugned order. Perusal of the reply filed to the complaint in the proceedings before District Forum below also points out that the complaint being time barred had been specifically raised as one of the primary objection. Thus according to Sh. Chandel the impugned order deserves to be set aside. A perusal of the complaint shows that brevity is its beauty. Reason for making this observation is, that though this complaint was filed on 5.12.2007, there is no murmur about respondent having received sum of Rs. 41,432/- vide Annexure-D as early as on 25.2.2005. This ommission in our opinion appears to be intentional and purposeful, aimed at getting extra money by suppression of material facts.



4. In a given case, a consumer can always challenge the receipt of amount by him, as received by the respondent in the present appeal vide Annexure-D. But then he has to make out a cause that under what complelling circumstances he acceped the same. In this behalf he is duty bound to specifically plea full facts so as to make out a case. If a case of undue influence, coercion or any other ground on which a contract can be challenged is made out, in such a situation also a litigant is supposed to plead full facts and then establish such allegations/averments by leading acceptable evidence. In paras 3 to 5 of its reply to the complaint, the appellant had specifically pleaded about the payment. This payment had been specifically denied by the respondent, rather his stand is that this was after thought and fabricated. Payment by means of cheque is also disputed in the rejoinder.



5. So far payment by the appellant to the respondent is concerned, it is established that the cheque was received by the latter vide Annexure-D. Bank certificate in this behalf is at page-61 of the complaint file. Since the vehicle was financed by Mahindra and Mahindra Financial Services Pvt. Ltd., amount was remitted to the said financier. In these circumstances the amount having been paid to the financier in the loan account of the respondent, no fault was committed by the appellant.



6. Similarly plea that the complaint was barred by time is well founded. Cause of action accrued as per averments made in the complaint firstly on 20.4.2004. He could maintain the complaint within two years, thus it should have been filed on or before 19.4.2006.



7. Again cause of action accrued to him when payment was made vide Annexure-D on 25.2.2005. From this date respondent could maintain the complaint if it had been filed on or before 24.4.2007. Despite the complaint being time barred the respondent could maintain it u/s 24A of the Consumer Protection Act, 1986 by making out a case for condonation of delay. In such a situation, Foras under the Consumer Protection Act, 1986 are duty bound to record reasons while condoning the delay.



8. From the perusal of complaint file we have examined with the assistance of Mr. Chandel, there is nothing said in the complaint as to how it is within time, either from the date of accident or from the date discharge voucher executed after receipt of Rs. 41,423/- in full and final settlement of the claim. That being the position, statement of Mr. Chandel that the complaint was prima-facie time barred and in the absence of there being any prayer for condoning the same, either in the complaint or by means of a separte application u/s 24A of Consumer Protection Act, 1986 is well founded and it deserves to be upheld. Ordered accordingly. This matter is no more res-integra in the view of the recent decision of the Hon’ble Supreme Court in the case of State Bank of India V/s B.S.Agricultural Industries (1) II (2009) CPJ 29 (SC).



9. No other point was urged.





10. In view of the aforesaid discussion this appeal is allowed, and as a result of it order passed by District Forum, Kullu in Consumer Complaint No. 158/2007 on 4.4.2008, is set aside, consequently the complaint is dismissed, leaving the parties to bear their own cost.


11. All interim orders passed from time to time shall stand vacated forthwith.

12. Learned counsel for the appellant has undertaken to collect copy of this order free of cost from the Court Secretary as per Rules, and office is directed to send the same in the like manner to the respondent.





(Justice Arun Kumar Goel) Retd.

President





(Saroj Sharma) Member





(Chander Shekher Sharma)

Member