2008 (12) TMI 664 - SC - Indian Laws

Whether an amendment under Order 6 Rule 17 of the CPC ought to be allowed after the relief which had been sought to be introduced had become time barred? Held that - Appeal dismissed. As on the date of the flood, there was no insurance policy in existence or any commitment on behalf of the respondent to make the payment under the policy. We, therefore, endorse the argument raised by the respondent that even accepting the case of the appellant at its very best that the period of limitation would be 3 years under Section 44 of the Limitation Act, the complaint would, even then, be beyond time, having been filed in April 1994.

Issues Involved:
1. Validity of the period of limitation prescribed by Clause 6(ii) of the Insurance Policy.
2. Applicability of Section 28 of the Contract Act, 1872, in relation to the period of limitation.
3. Timeliness of the complaint filed before the National Consumer Redressal Forum.
4. Interpretation of relevant case laws and their applicability.

Detailed Analysis:

1. Validity of the Period of Limitation Prescribed by Clause 6(ii) of the Insurance Policy:
The appellant's timber was insured under a policy issued by the respondent, which was valid from 6th November 1987 to 5th November 1988. However, the respondent claimed the policy was only for eight months due to a typographical error. The timber was washed away in September 1988, but the respondent repudiated the claim on 13th October 1988. The appellant argued that the policy's limitation period of 12 months for filing a claim was invalid under Section 28 of the Contract Act, 1872. The Court found that the policy's limitation period was valid and not violative of Section 28, as it did not curtail the period of limitation but extinguished the right itself if not exercised within the specified time.

2. Applicability of Section 28 of the Contract Act, 1872:
Section 28 of the Contract Act renders agreements void if they restrict legal proceedings or limit the time within which rights can be enforced. The Court referred to the case of Sujir Ganesh Nayak & Co. vs. National Insurance Co. Ltd., which held that a clause extinguishing the right itself unless exercised within a specified time is permissible and not hit by Section 28. The Court reiterated that Clause 6(ii) of the policy, which extinguished the right to claim if not made within 12 months, was valid and enforceable.

3. Timeliness of the Complaint Filed Before the National Consumer Redressal Forum:
The appellant filed a complaint before the National Consumer Redressal Forum on 18th April 1994, which was dismissed as time-barred. The Court noted that the timber was washed away in September 1988, and the claim was repudiated on 13th October 1988. Even if the limitation period was considered to be three years under Section 44 of the Limitation Act, the complaint filed in April 1994 was beyond the permissible period. Thus, the complaint was rightly dismissed as time-barred.

4. Interpretation of Relevant Case Laws and Their Applicability:
The Court examined various case laws, including Food Corporation of India vs. New India Assurance Co. Ltd. and Muni Lal vs. Oriental Fire & General Insurance Co. Ltd., to determine the applicability of Section 28 of the Contract Act. The Court found that the principles laid down in Sujir Ganesh Nayak & Co. were applicable and that the contractual provision in the insurance policy was valid. The Court also noted that the amendment to Section 28, which was later repealed, did not affect the present case.

Conclusion:
The Court concluded that the appellant's complaint was time-barred and that Clause 6(ii) of the insurance policy was valid and enforceable. The appeal was dismissed with no order as to costs.

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