Orissa

Kendujhar

56/1998

Manoj Kumar Jena - Complainant(s)

Versus

1. Branch Manager, Baitarani Gramya Bank - Opp.Party(s)

Sri B. Sahu & P.K. Kar

08 Sep 1999

ORDER

IN THE COURT OF THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KENDUJHAR

CONSUMER DISPUTES CASE NO.56/1998

Manoj Kumar Jena, aged 31 years,

S/o- Natabar Jena, At/Post- Machhalo,

P.S- Ramachandrapur,

Dist- Keonjhar                                      ………………………….Complainant

                       Versus

1. Branch Manager,

Baitarani Gramya Bank, Sainkul Branch,

Post- Sainkula, P.S- Ramachandrapur,

Dist- Keonjhar

2. Branch Manager,

National Insurance Co. Ltd.

Baripada Branch,

At/Post- Baripada, Dist- Mayurbhanj   …………………………Opp. Parties

Adv. com- Sri B. Sahu & P.K. Kar

Adv. Op1- Smt. J. Sarangi & Miss S. Singh

Adv. Op2- Sri N.G. Das

 

PRESENT: Sri Binayak Acharya, President

                 Miss. P. Parija, Member

                 Dr. K.K. Dwibedi, Member

___________________________________________________________________________

DATE OF HEARING: 13.01.1999                                                        DATE OF ORDER: 08.09.1999_____

Sri Binayak Acharya, President: In the brief facts of this case is that on 7.10.94 the petitioner availed a loan of Rs.7000/- (seven thousand only) towards the cost of a Second Jersey Cow with Identification Mark- Ear Tag No.3653/- B.G.B and Rs.591/- towards the premium of Insurance Company and Rs.500/- towards the cost of cattle feed in total Rs.8091/-. The Baitarani Gramya Bank deposited the premium fee in the National Insurance Company Ltd, Baripada for Insurance Policy bearing Policy No. 153001/42-10/00080/93. On 08.11.94 the said Cow died suffering from anemia after the period of 15 days treatment. As it was under the treatment of Veterinary Officer, Sainkul and the post-mortem was also conducted by the V.A.S, Sainkul who submitted the postmortem report on 23.11.94 along with other necessary documents vide his office letter No. 605 dt.23.11.94. The petitioner had also submitted the ear tag No. 3653/- B.G.B of the said Jersey Cow to the Branch Manager, Sainkul as proof of death of the said Jersey Cow. Though the petitioner had intimated the fact of death of Jersey Cow and submitted all necessary papers to Branch Manager, B.G.B, Sainkul for settlement of the Claim of the Loan and adjustment of the said loan, it did not take any steps for which the petitioner served advocate notice on 6.8.97 regarding the settlement of the Insurance Claim and adjustment of loan in reply of which the Opp. Party Branch sent a letter with prayer to give some more days for settlement of the cattle claim on 12.9.97 vide his letter No. SLK/F29/Sus/82. But in spite of that the Opp. Party had not settled the claim rather sent a demand notice on 24.11.97 claiming Rs.10,940/-. The petitioner had expended Rs.925/- towards the treatment of the Jersey Cow. Hence the petitioner submitted this case on 23.05.98 with a prayer to direct the Opp. Party No.1 to liquidate the outstanding loan of the petitioner and direct the Opp. Party No.2 to settle the claim along with Bank Interest up-to-date and direct the Op No.1 to give Rs.5000/- towards the mental agony and Rs.2000/- towards the legal expenditure.

     In order to substantiate his case the petitioner has submitted some Xeroxed attested documents those are -

1- Pass Book, 2- Postmortem Report, 3- Application, 4- Medicine Bill, 5- Advocate Notice,

6- Bank Letter, 7- Demand Notice.

     The Opp. Party No.1 has also submitted properly attested true copy of renewal documents (Agreement of Policy) by the National Insurance Company Ltd. dated 01.11.95. The Op No.1 and 2 filed their version on 22.7.98 but have not denied the insurance and the death of the Cow rather otherwise admitted. The Op No.1 has tried his level best to get rid of the charge showing flimsy grounds that the petitioner had filed this case after the period of limitation which is not a fact rather the period of limitation started from year 97 from the date of service of the advocate notice and receipt of its reply. The cow was insured and stated in Paragraph 7 of the show cause filed by the Opp. Party No.2 that the Op. No.1 had failed to deposit the premium in time for which the Op No.2 is not responsible for settlement of the claim. Therefore the Opp. Party No.1 has no other way out to get rid of the charge. It is also to note here that if the Op No.1 has defaulted how the Op. No2 being aware of the facts and faults renewed the agreement of master policy from 1.11.95 to 31.10.96 whose attested Xeroxed true copy of the original has been filed by the Op No.1. It is no good to be free from the charge throwing mud to the face of each other.

      On perusal of the show cause and documents filed during trial of this case, we are of the opinion that both the Opp. Parties have contributory negligence and deficiency of service for which both are jointly, severally and equally liable to compensate the loss sustained by the petitioner. Therefore we direct the Opp. Party No.1 to liquidate the outstanding loan of the petitioner as soon as possible and direct both the Opp. Parties to settle the claim and give compensation of Rs.7,000/- (Seven Thousand only) jointly within the 30 days of pronouncement of the Judgment failing which they will be liable to pay 18% interest per annum till final payment will be made.

       Orders pronounced in the open court today i.e. on 8^th day of September, 1999 under my hand and seal of the forum.

 

             I disagree                                        I disagree

There is no deficiency of                   There is no deficiency of                  

 service by the Bank.                         service of Op No.1 namely

                                                      B.G.B. Branch Manager, Sainkul

  Dr. K.K. Dwibedi                                         Miss P. Parija                      Sri Binayak Acharya   

        Member                                                    Member                                 President

 

                                                                                      Dictated and Corrected by me.

                                                                                               Sri Binayak Acharya   

                                                                                                       President

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, ODISHA, CUTTACK

C.D. APPEAL NO. 605 OF 1999

(From an order dated 08/09/1999 passed by the District Consumer Disputes Redressal Forum, Kendujhar in C.D. Case No. 56 of 1998)

Branch Manager,

National Insurance Company Ltd.

At/Post- Baripada,

Dist- Mayurbhanj                                        ………………………Appellant

                   Vrs.

1. Manoj Kumar Jena, aged 31 years,

    S/o: Natabar Jena,

    At/Post: Machhalo,

    P.S: Ramachandrapur,

    Dist: Keonjhar                                         

2. Branch Manager,

    Baitarani Gramya Bank,

    At: Sainkul Branch,

    Post: Sainkula,

    P.S: Ramachandrapur,

   Dist: Keonjhar                                           …………………….Respondent(s)

For the Appellant      : M/s   S. Das & Associates

For the Respondents: M/s   M.K. Mishra & Associates

 

PRESENT:

                 THE HONORABLE SHRI JUSTICE R.N. BISWAL, PRESIDENT

                                                                                      AND

                                                                    SHRI G.P. SAHOO, MEMBER

DATED THE 30^th APRIL, 2015

O R D E R

JUSTICE R.N. BISWAL, PRESIDENT

   This Appeal is directed against the order dated 8/9/1999 passed by the District Consumer Disputes Redressal Forum, Keonjhar (hereinafter referred to as District Forum) in C.D. Case no. 56 of 1998 directing opposite party No.1 to liquidate the outstanding loan amount against the Complainant as soon as possible and directing both the opposite parties to settle the claim and give compensation of Rs.7,000/- jointly within 30 days of pronouncement of the order failing which directing them to be liable to pay interest at the rate of 18% per annum till final payment.

    Appellant was opposite party no.2, respondent no.1 was complainant and respondent no.2 was opposite party no.1 before the District Forum.

    The case of the complainant stated in brief is that on 7/10/1994, he availed a loan of Rs.7000/- towards the cost of a Jersey Cow, Rs.591/- towards premium for Insuring the said cow and Rs.500/- towards cattle feeds, in total Rs.8,091/- from opposite party no.1- Bank. He purchased a cow of Rs.7000/- which was marked with ear tag no. 3653/- BGB and the cow was insured on payment of the premium by opposite party no.1 bearing Policy no. 153001/42-10/00080/93, but as ill luck would have it, on 8/11/1994 after prolonged treatment of 15 days, the said cow died due to anemia, postmortem of which was conducted by the Veterinary, Surgeon, Sainkul and who sent the postmortem report along with other documents on 23/11/1994  vide office letter no. 605 to opposite party no.1- Bank. Complainant submitted all necessary documents along with the ear tag to opposite party no.1 for settlement of the claim and adjustment of the same towards loan, but to no effect for which he served advocate notice on 6/08/1997 to settle the insurance claim and adjust the same to his loan account. In response to it, on 12/9/1997 opposite party no.1 sent a letter with request to give some more time to settle the claim but still then the claim was not settled. It is the further case of the complainant that he spent a sum of Rs. 925/- towards the treatment of the cow. Hence, he filed the aforesaid case with a prayer to direct the opposite party no.1 to liquidate the outstanding loan pending against him and opposite party no.2 to settle the insured amount and further to direct opposite party no.1 to give him  Rs.5000/- towards the mental agony and Rs.2000/- towards litigation cost.

   Opposite party no.1 on being noticed, filed written version contending that complainant availed loan to purchased a jersey cow for selling milk and to earn profit out of it, therefore, he is not coming under the definition of ‘CONSUMER’ and the C.D. Case is also barred by limitation. After receipt of demand notice from the answering oppositely to clear up Bank’s dues, complainant has filed the dispute with a view to avoid the payment of Bank dues. The complainant may claim the insured amount from the Insurance Company- opposite party no.2 and accordingly, opposite party no.1 prayed to dismiss the case against him.

 Opposite party no.2 in its written version took the plea that the dispute was barred by limitation since the case had been filed more than 4 years after the accrual of cause of action. It intimated opposite party no.1 on 20/02/1995 that the claim could not be settled as the premium was received only on 2/12/1994, i.e. after the death of the cow and accordingly prayed to dismiss the case against it.

   After going through the pleadings, the documents on record and hearing the counsel for the parties, the District Forum held that the period of limitation started from the year 1997 when the advocate’s notice was sent and receipt of its reply. If in fact opposite party no.1 defaulted in making the premium, opposite party no.2 ought not to have renewed the agreement of a lapsed policy from 1/1/1995 to 31/10/1996 which is on record and accordingly passed the impugned order as stated above.

 Being aggrieved with the order, opposite party no.2 has preferred the present appeal.

  Heard learned counsel for the appellant. None appears on behalf respondents on call. So, they are set ex- parte.

 Learned counsel for the appellant submits that the cow in question expired on 8/11/1994. The C.D. Case having been filed on 23/5/1998, it is barred by limitation. He further submits that respondent no.1 purchased the cow for selling milk and earning profit as such he will not come under the definition of ‘CONSUMER’ as he defined U/s 2(1)(d) of C.P. Act. He further submits that the cow expired on 8/11/1994 but the premium towards the insurance policy was received by it on 2/12/1994. The policy having not been in force at the time of death of the cow, the insurance company is not liable to reimburse the sum assured.

 Admittedly, the cow expired on 8/11/1994 and the C.D. Case was filed on 23/5/1998. As per section 24(A) of C.P. Act, it should have been filed within 2 years from the date of accrual cause of action. Respondent no.1 in his pleading has stated that an advocate notice was issued to respondent no.2 on 6/8/1997 which was also beyond the period of limitation. Moreover, legal notice cannot extend the period of limitation. So the Consumer Disputes is barred by limitation and as such, the impugned order passed by the District Forum deserves to be set aside. Moreover, as found from the record the cow had already expired prior to receipt of the premium for its insurance.

 Accordingly, the appeal is allowed, the impugned order is set aside. However, since a poor man like respondent no.1 purchased a cow under a Govt. Scheme, obviously to maintain his family and respondent no.2 paid the insurance premium to the appellant after the cow expired, we hope that respondent no.2 shall liquidate the entire loan amount of Rs.8,091/- with interest accrued therein, particularly, when it has not preferred appeal against the order of District Forum.

 Records received from the District Forum be sent back forthwith.

                                                                                                                                                             Sd/-30/04/2015

                                                                                                                                                          (Justice R.N. Biswal)

                                                                                                                                                                   President

                                                                                                                                                             Sd/-30/04/2015

                                                                                                                                                                 (G.P. Sahoo)

                                                                                                                                                                     Member