Decided on July 12,1999



T.S. Doabia, J. - (1.) VEHICLE No. JKO2 -A 3212 is said to have met with an accident on 10.4.1991. It is stated that it fell into a deep nallah. In this fall which was more than 200 ft. deep, the vehicle in question is said to have suffered total loss. As a matter of fact the vehicle was not traced. It was pleaded that the vehicle was parked on a hilly road. On account of the land -slide it was pushed down. The loss was accordingly held to be on account of land -slide and not on account of floods. The claim of the claimant was however, rejected on the ground that it was not lodged within one year from the date it was dis - claimed by the respondent -Insurance Company. As the argument depends upon the meaning, scope and content of the clause fixing the period of limitation, it would be apt to notice the same : "It is hereby further agreed and declared that after the Company shall disclaim liability to the insured for any claim herein and such claim shall not within 12 calender months from the date of such disclaimer have been made the subject matter of a suit in a Court of law then the claim shall for all practical purposes be deemed to have been abandoned and shall not thereafter be recoverable."
(2.) THE Commission which looked into the merits of the controversy as indicated above came to the conclusion that the loss was in fact caused by a reason other than flood but negatived the claim on the ground that this was not lodged within one year from the date of its dis -claimer. It is this aspect of the matter which is subject matter of challenge in this appeal. Before noticing the arguments put across by the learned Counsel for the appellant it would be apt to notice that complainant Parshotam Dutt did not appear in the witness box. It was his attorney, who stepped in to depose in the matter. He stated that he had no personal knowledge about the method and manner in which loss was caused. The attorney stated that he was not aware as to what was written in the complaint. About the rejection of the claim on the part of the Insurance Company, the attorney expressed his ignorance. He further deposed that he does not know whether any Investigator was appointed or not.
(3.) WITH regard to the plea that the complaint should have been filed within one year of the rejection of the claim, the factual assertions made in the objections preferred by the respondent - Insurance Company be noticed. It was stated in para (D) of the preliminary objections that the matter was considered at the highest level. The claim of the appellant was held to be not maintainable. The detailed reasons for repudiation of the claim were communicated to the appellant. These letters were placed on the record. The first letter in this regard was sent on 10.2.1993. The second letter is stated to have been written on 22.2.1994. The complaint in this case came to be lodged with the State Commission on 27.3.1995. The question arises as to whether on account of Clause 12 as noticed above the period for lodging the claim is within one year from its rejection. Another question would be as to when was the claim of the appellant was repudiated. So far as the factual aspect of the matter is concerned the categoric stand taken by the Insurance Company is that the letter repudiating the claim of the appellant was specifically sent at the address indicated in the Insurance Policy. The first letter in this regard was despatched on 10.2.1993 and the second letter was sent on 22.2.1994. The first letter is addressed at the address which was given by the appellant. The second letter was addressed C/o M/s. Frontier Transport Company, 6 -C Nehru Market, Jammu. This is said to have been sent by Registered A/D cover. So far as the first letter is concerned it was returned with the remarks the 'no such person is available'. So far as the second letter is concerned, it was not received back by the respondent Company. In these circumstances a presumption can be drawn that the letter must have reached the person to whom it was addressed. A specific plea as a matter of fact was taken by Raj Kumar, Branch Manager of the Insurance Company that the letter was sent under Registered A/D cover. What was said in paragraph 6 of the affidavit is re -produced below : "6. That in reply to letter of the complainant dated 8.2.1994 which was received by the deponent on 11.2.1994, the deponent again sent a registered letter No. 3490/94 dated 22.2.1994 addressed to the complainant on his address mentioned in his letter i.e. C/o Frontier Transport Company, 6 -C Nehru Market, Jammu. Vide this letter also the deponent informed the complainant that his claim has been minutely considered by various authorities and after examining the facts it has been found that alleged loss was due to land - slides which are covered by flood perils, hence no claim could be paid to the complainant under the terms of the policy.";

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