Harjit Singh Bedi, J. - (1.) The facts leading to this appeal are as under :
(2.) In October 1987, a meeting was convened by the Managing Director of the appellant with representatives of various Insurance Companies in Shimla with a proposal to insure the timber lying in several forest areas of the State. A proposal was also made to the National Insurance Company on 26th October, 1987 to act as a lead company while the other Insurance Companies were to be co-sharers. After negotiations, the respondent agreed (on the 30th October, 1987) to insure the timber lying in the South Zone in the value of Rs. 3.42 Crores and also issued a cover note dated 7th November, 1987 followed subsequently by a policy dated 16th November, 1987 to be valid from 6th November, 1987 to 5th November, 1988. The appellant also deposited a sum of Rs.2,43,504 as the tentative premium subject to the approval by the Tariff Advisory Commission. It appears that on account of heavy rains in the Shimla region in September 1988 and consequent large scale flooding in the South Zone, the insured timber was washed away. This fact was conveyed to the respondent by several letters between 3rd October, 1988 and 31st September, 1989. The case of the appellant is that instead of meeting its contractual obligations, the respondent refuted its liability to pay on the 13th October, 1988 on the pretext that the policy had, in fact, been issued for a period of 8 months only starting from 6th November, 1987 and ending on 5th July, 1988 and the period of one year mentioned in the policy was on account of a typographical mistake. It also appears that after prolonged negotiations, some additional premium was paid with respect to the aforesaid policy. It is the grievance of the appellant that despite having accepted the additional premium even after the policy had been repudiated on 13th October, 1988, the respondent-company still refused to make good the loss. The appellant accordingly issued a legal notice dated 7th May, 1992 followed by another dated 7th December, 1992 but to no avail, and on the contrary, the respondent vide its communication dated 24th December, 1992 yet again repudiated the appellant claim. Faced with this situation, the appellant through its Advocate, issued a notice dated 18th April, 1993 to the respondent under clause 13 of the Insurance Policy calling for the appointment of an arbitrator. In its reply dated 19th May, 1993, the Insurance Company refused to accept this proposal as well. Frustrated thereby, the appellant filed a complaint before the National Consumer Redressal Forum (hereinafter called the "Commission") on 18th April, 1994 on which notice was issued to the respondent. Several objections such as the complaint being belated as the claim had been repudiated by letter dated 13th October, 1988, and that the insurance covered only a period of 8 months, were taken by the respondent. A rejoinder affidavit was thereafter filed by the appellant controverting the pleas raised by the respondent. The Commission, however, after prolonged hearing by its order dated 15th February, 1996 relegated the appellants to the remedy of a civil court. This order was challenged and was set aside by this Court on 13th March, 1997 and a direction was issued to the Commission to examine the complaint on merits. The Commission accordingly went in to the matter and dismissed the complaint on 16th August, 2000 holding that the issues were covered against the appellant by the judgment of this Court in National Insurance Co. Ltd. vs. Sujir Ganesh Nayak and Co., and Another (1997) 4 SCC 366, in which it had been held that the complaint could not be entertained as it was time-barred having been brought before the Commission after the expiry of the period fixed by Clause 6(ii) of the Insurance Policy. It is against this order that the present appeal has been filed.
(3.) Mr. Sharma, the learned counsel for the appellant has submitted that Section 44 of the Limitation Act provided a period of limitation of 3 years from the date of disclaimer and as such the period of 12 months fixed by Clause 6(ii) could not be sustained by virtue of the provisions of Section 28 of the Contract Act, 1872. In this connection, he has pointed out that this matter was concluded against the respondent by the judgment in Food Corporation of India vs. New India Assurance Co. Ltd. and others (1994) 3 SCC 324, which had been reaffirmed in Muni Lal vs. Oriental Fire and General Insurance Co. Ltd. and Another (1996) 1 SCC 90, and that Sujir Ganesh Nayak case (supra) which was based on the pre-amended S. 28 ibid was, therefore, inapplicable. Mr. Nandwani, the learned counsel for the respondent has, however, submitted that the claim had, in fact, been repudiated on 13th October, 1988 and as the 3 years' period was deemed to have commenced from that day, the complaint was barred even on the appellant's best case as the complaint had been filed in April 1994. He has, further, argued that as far back as in the judgment in Vulcan Insurance Co. Ltd. vs. Maharaj Singh and Another (1976) 1 SCC 943, and followed subsequently in several judgments (and even in those referred to above), it had been held that a clause in an Insurance Policy fixing a period of limitation extinguishing the right to file a suit or complaint within a certain stipulated period which could be less than that prescribed by the Limitation Act, was not violative of Section 28 of the Contract Act and as such the findings of the Commission were perfectly in accordance with the law for this additional reason as well.;