PER MR PREM NARAIN, PRESIDING MEMBER The present appeal has been filed by Shri Balaji Enterprises vs Oriental Insurance Company Ltd., against the judgment dated 18.07.2017 of the Punjab State Consumer Disputed Redressal Commission, Chandigarh in Miscellaneous Application no. 2375 of 2016 in Consumer Complaint no. 390 of 2016. 2. The brief facts of the case are that the appellant on 19.04.2012 had availed two insurance policies from respondent vide policy bearing no. 231110/48/2012/1595 and 231110/48/2012/1596 in order to insure the stocks lying in the godown as well as shop of the appellant. On 06.12.2012 a theft took place in the godown of the complainant situated at the Badal Colony Back Side, OBC Zirakpur. A DDR had been registered in the concerned police station. In the month of December 2012, intimation of theft and loss was also given to the respondent. On 20.02.2013, the respondent appointed Mr Rajan Sharda as surveyor and loss assessor, who sought certain, specific documents from the appellant. On 09.09.2013, the surveyor again sought some clarification and documents. The appellant clarified the query of the surveyor on 09.10.2013. The appellant issued a legal notice for settling the claim on 07.10.2013. The respondent rejected the claim of the appellant on 24.02.2014. It is the case of the complainant that the said rejection of the claim was not intimated to the appellant. The said rejection was intimated to the appellant during the proceedings before the Insurance Ombudsman between October to December 2015. 3. On 07.10.2015, the appellant filed the Civil Writ Petition no. 21981 of 2015 against the respondent for not settling the claim of the appellant. Vide order dated 16.10.2015, the Hon’ble High Court of Punjab and Haryana directed the appellant to approach the Insurance Ombudsman. Accordingly, he approached the Insurance Ombudsman by filing a complaint there. The appellant received the order dated 17.12.2015 passed by the Insurance Ombudsman on 23.12.2015, wherein the Ombudsman intimated the appellant that due to lack of pecuniary jurisdiction the said authority could not entertain the complaint of the appellant. During the proceedings before the Insurance Ombudsmen on 17.12.2015, it was intimated to the appellant by the respondent that the claim of the appellant has been repudiated vide letter dated 24.02.2014 and the said letter was also given to the appellant on 17.12.2015 by the respondent. 4. The appellant filed a Consumer Complaint no. 80 of 2016 before the State Commission, Punjab, against the respondent challenging the rejection order dated 24.02.2014 received by the appellant on 17.12.2015. On 21.04.2016, the learned counsel for the appellant withdrew the said complaint. The said complaint was dismissed as withdrawn vide order dated 21.04.2016 and liberty was granted by the State Commission, Punjab to file a fresh complaint on the same cause of action with better particulars. On 26.10.2016, the appellant filed the fresh consumer complaint before the State Commission, U T, Chandigarh and the same was again withdrawn by the appellant with liberty to file it before the State Commission, Punjab. On 16.12.2016, the complainant filed the present complaint bearing no. 390 of 2016 before the State Commission, Punjab along with an application for condonation of delay. Vide order dated 18.07.2017 the State Commission, Punjab dismissed the complaint no.390 of 2016 on the ground of limitation. 5. Hence, the present appeal. 6. Learned counsel for the appellant has stated that the State Commission Punjab has dismissed the present complaint on the ground that the complaint was barred by limitation of 296 days. In giving this finding, the State Commission, Punjab has calculated the delay period from the date of repudiation, i.e., 24.02.2014, whereas the fact is that this repudiation was never received by the appellant and the appellant came to know of this repudiation when this repudiation letter was handed over to the appellant/ complainant before the Ombudsmen where the complainant had filed the complaint in pursuance of the order of the Hon’ble High Court of Punjab and Haryana in Civil Writ Petition no. 21981 of 2015. Thus, the fact is that the repudiation letter was received only on 17.12.2015 and therefore, the delay needs to be calculated from this date. 7. On the other hand, the learned counsel for the respondent has stated that the insurance claim was repudiated vide letter dated 24.02.2014 and the complainant did not take any cognizance of the letter and filed a complaint before the Insurance Ombudsmen where he was again apprised of the repudiation letter. Learned counsel has emphasised that the complainant has resorted to forum shopping as he first filed a complaint before the State Commission, Punjab and the same was withdrawn with liberty to file the complaint with more details. However, after six months, he filed a fresh complaint before the State Commission, UT, Chandigarh and the same was again withdrawn with liberty to file the complaint before the State Commission, Punjab. The State Commission, Punjab while dismissing the first complaint as withdrawn, gave liberty to file an improved complaint along with more details, but the complainant did not file the fresh complaint before the State Commission, Punjab, and preferred to file fresh complaint before the State Commission, UT, Chandigarh. This clearly shows that the complainant was not expecting a favourable decision from the State Commission, Punjab and therefore, he tried to explore the possibility of getting a favourable order from the other forum. This is clearly an action of forum shopping and no relief can be granted to such persons. 8. The learned counsel for the respondent further stated that clearly, the complaint is barred by delay of 296 days as observed by the State Commission, Punjab and therefore, there is no merit in the appeal and same needs to be dismissed. It is an established principle of law that the delay is to be counted from the date of repudiation. Therefore, the delay is required to be calculated from 24.02.2014. It is to be seen that no further correspondence was made by the complainant after this date. Had the complainant not known this order, he would be writing the letter to the respondent for expediting the settlement of claim. Thus, the assertion of the complainant that he only came to know of the repudiation on 17.12.2015 is not believable. The main prayer in the writ petition reads as under: “It is therefore, respectfully prayed that a writ of Mandamus directing the respondents to decide the petitioner’s claim of hypothecated stock covered under the insured policy may kindly be issued, in the interest of justice”. 9. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and examined the record. It is the contention of the appellant that he did not know that his insurance claim has been repudiated on 24.02.2014 and he came to know of this repudiation only on 17.12.2015 during the proceedings before the Ombudsman. It is seen that the complainant had filed the writ petition before the Hon’ble High Court of Punjab and Haryana on 07.10.2015. This writ petition was for giving direction to the opposite party/ insurance company to settle the claim of the complainant. 10. It can be inferred that by that time, i.e., by 07.10.2015, the complainant was not having the knowledge of repudiation of his claim. The Hon’ble High Court of Punjab and Haryana dismissed the writ petition and directed the complainant to move his complaint to the Insurance Ombudsman. When the matter was proceeding before the Insurance Ombudsman, the insurance company informed him about the repudiation dated 24.02.2014. It is the claim of the complainant that he got this letter on 17.12.2015. 11. In my view, had the complainant known about the repudiation of his claim vide letter dated 24.02.2014 he may not have filed this writ petition, first of all so late and that too for giving direction to the insurance company to settle the claim. 12. Clearly, the conduct of the complainant does not merit any sympathy, however, so far as the delay in filing the complaint no.390 of 2016 before the State Commission, Punjab is concerned the same needs to be calculated from 17.12.2015 and not from 24.02.2014. As this complaint has been filed on 16.12.2016, the period of limitation was not over. 13. Based on the above discussion, the appeal is allowed and the order dated 18.07.2017 in MA no. 2375 of 2016 in CC no. 390 of 2016 is set aside and the matter is remanded to the State Commission for restoring the appeal at its original number and to decide the same on merit after giving opportunity of being heard to both the parties. 14. Parties to appear before the State Commission, Punjab on 26th November 2019. |
