Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:

(1)          This appeal takes an exception to an order dated 23.11.2009 passed in Consumer Complaint No.76/2009, M/s.Hotel Anand & Permit Room V/s. M/s.New India Assurance Co. Ltd. & Anr., by  District Consumer Disputes Redressal Forum, Raigad.

(2)          Consequent to the repudiation of the insurance claim relating to the fire in the shop which occurred on 15.02.2007, the consumer complaint was filed against the Insurance Company and Respondent/Opposite Party No.2 the Bank, with whom the goods were hypothecated.  The insurance policy was taken for those hypothecated goods.  Forum below awarded the claim directing the insurance company to pay Rs.1,62,800/- and feeling aggrieved thereby this appeal is preferred by the Insurance Company.

(3)          Heard Ms.Sheetal Patil, Advocate, proxy for Mr.A.S. Vidyarthi, Advocate for the Appellant, Mr.Subodh Gokhale, Advocate for Respondent No.1 and Mr.V.N.Bandivdekar, Advocate for Respondent No.2.

(4)          One of the grounds of repudiation is that Complainant had no insurable interest.  We find, looking to the policy taken and the explanation given in paragraph no.2 of the complaint, that it is a joint family business and though the permit was in the name of the father, the business actually run for the joint family by Complainant – Shri Shaileshkumar Dineshchandra Patel.  Thus, we find said ground of repudiation has no substance and, rightly, Forum below observed accordingly.

(5)          Another ground on which the appeal is pressed is about the limitation.  According to the Appellant, cause of action arose on 15.02.2007 and the consumer complaint was filed after beyond the period of two years from said cause of action, i.e. on  15.07.2009 and that too without any application for condonation of delay and as such assuming jurisdiction to settle the dispute by Forum below is illegal and erroneous.  Reliance is placed on the decision of apex court in the matter of Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd. & Anr., reported in III (2009) CPJ 75 (SC ) = 2009CTJ 951(SC)(C.P).  Learned Counsel appearing for Respondent-Complainant tried to convince that the period of limitation will start running from the date of repudiation.  But, we are unable to accept such contention in view of apex court decision in In re Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd. & Anr., supra.    

(6)          Under the circumstances, since the consumer complaint filed admittedly beyond the period of two years from the date of fire and that too without any application for condonation of delay the consumer complaint filed was clearly barred by limitation.  In the facts and circumstances of the case assuming jurisdiction to settle the dispute was per se illegal and erroneous on the part of Forum below.  We hold accordingly and pass the following order:

O  R  D  E  R

       (i)     Appeal is allowed.

     (ii)     Impugned order dated passed in Consumer Complaint No76/2009 is set aside and in the result, consumer complaint stands dismissed.

   (iii)     In the given circumstances no order as to cost.

   (iv)     Amount deposited under section 15 of the Consumer Protection Act, 1986 be refunded to the Appellant.