ORIENTAL INSURANCE CO. LTD. Vs. PRABHAWATI RAINA

JUDGEMENT

(1.) A short question of law which emerges for determination of this Court in the present appeal is 'Whether a clause in the Insurance Policy could restrict the period within which the claim must be made and no claim was entertain able after the expiry of the stipulated period.

(2.) Few facts would be necessary to settle the legal issue raised before us.

(3.) Mr. Vishnu Gupta, learned counsel for the Insurance Company has vehemently argued that the view taken by the Commission is patently against the law laid down by this Court and that of Honourable the Supreme Court. In support of his submission, Mr. Gupta has placed reliance on the Division Bench Judgment of this Court rendered in the case of Oriental Insurance Company Ltd. Vs. Rashpal Singh, 2003 (Supp.) JKJ 514 [HC] and has argued that once the right itself has been extinguished on account of expiry of the period stipulated in the Insurance policy then no complaint by the Consumer Forum could be entertained. Mr. Gupta has also placed reliance on the judgment of Honourable the Supreme Court rendered in the case of National Insurance Co. Ltd. Vs. Sujir Ganesh Nayak & Co. and another, AIR 1997 SC 2049 for the same proposition. Drawing our attention to the observations made in para 20 of the judgment, Mr. Gupta has argued that the respondent has no case as similar Clause in the insurance contract stipulating period by 12 months was interpreted and the right of the respondent was held to have been extinguished. It has further been argued that Sec. 28 of the Contract Act, 1872 (for brevity 'the Contract Act') as has been held by Honourable the Supreme Court in Sujir Ganesh Nayak's case (supra) would not come in conflict with the policy conditions. Similar view has been taken by Honourable the Supreme Court in the case of H.P. State Forest Company Ltd. Vs. M/S. United India Insurance Co. Ltd., (2009) SCCR 91 . Referring to para 6 of the judgment, learned counsel has argued that a Clause restricting the period within which claim could be made would not come in conflict with Sec. 28 of the Contract Act because the claim was made by the respondent after the right has been extinguished.