S P KUMARAPPAN Vs. NATIONAL INSURANCE CO LTD

JUDGEMENT

(1.) THIS appeal has been filed by the appellant against the order of the State Commission dismissing his complaint.

(2.) BRIEFLY the facts of the case are that the appellant who runs a small scale pharmaceutical unit had an insurance cover for Rs. 11 lakhs against fire loss. Appellants unit caught fire on the night of 24th -25th May, 1993 of which report was given to both the respondents i.e. the Insurance Company and the Bank. The Insurance Company appointed a Surveyor who surveyed the loss at Rs. 7,80,138.31 after some time. The Insurance Company settled the claim at this amount which was finally given to the second respondent Bank. The appellant as complainant had two grouses. Firstly, that Surveyor even though assessed the loss at over Rs. 11 lakhs, Insurance Company has paid only Rs. 7,80,138.31. The other grouse was against the second respondent that even though appellant had approached them for increasing the insurance cover from Rs. 11 lakhs to 14 lakhs, respondent No. 2 did not act on this direction which amunts to deficiency of service. The State Commission also noted that since the complaint before them has beeen filed after expiry of 12 months of the date of incident, hence, the complaint is violative of condition 6(11) of the policy of insurance which lays down that claim shall for all purposes be deemed to have been abandoned. ... if the claim is not made within 12 calendar months of the date of incident. The State Commission after hearing both the parties dismissed the complaint and on merits as well as barred within the meaning of Clause 6(11) of the Insurance Policy against which the appeal has been filed.

(3.) WE have perused the material and heard the arguments. On the point of limitation as per Clause 6(11) of the Policy, this Commission has taken the view in First Appeal No. 450 of 1995 - Real Laminates Pvt. Ltd. v. The New India Assurance Co. Ltd. vide its order dated 18th July, 2001 that Supreme Court, however, did not interpret the effect of the amendment to Section 28 of the Indian Contract Act..... Theere is no dispute after the amendment of Section 28 of this Contract Act which reads as : Every Agreement (a) ..... (b) Which extinguishes the rights of any party thereto, or discharges any party thereto from any liability, under or in respect of any contract; on the expiry of a specified period so as to restrict any party from enforcing his right is valid to that extent.