F.A.No.321/2011 against C.C.No.55/2009, Dist. Forum, Guntur.       

Between:                                      

Mekala Lakshmi Narayana,

S/o.Venkaiah,,

Aged about 57 years,

Agriculturist,

R/o.Ravela Village,

Tadikonda Mandal,

Guntur District .                                          …Appellant/

                                                                   Complainant

And

1.Hima Bindu Cold Storage (P) Ltd.,

   Rep. by its Managing Director,

    Office: C-134, SVN Colony,

   Guntur.

2. The Branch Manager,

    Oriental Insurance Company Ltd,

    City Branch Office-II,

    D.No.5-50-40, 6/13 Brodipet,

    Guntur.                                                   … Respondents/

                                                                     Opp.parties

Counsel for the  Appellant         :         Mr.Sidda Satyanarayana

Counsel for the Respondents      :        M/s.Bhaskar Poluri-OP.No.2

QUORUM:THE HON’BLEJUSTICE SRI D.APPA RAO,PRESIDENT,  

                                       AND

      SRI S.BHUJANGA RAO, HON’BLE MEMBER. 

              THURSDAY THE TWENTIETH  DAY OF   SEPTEMBER,

                            TWO THOUSAND TWELVE

Oral Order:(Per Sri S.Bhujanga Rao, Hon’ble Member)

                                                                ****

        The unsuccessful  complainant filed the appeal against the order dt.15.3.2011 of the District Forum,, Guntur in C.C.No.55/2009.

        The brief case of the complainant is that he  stored 55  bags of red chilli  in the cold storage belonging to the first  opposite party  and agreed to pay Rs.60/- per bag towards the rent, when  the said stock   sold.   The first opposite party obtained Standard Fire and Declaration Insurance Policy dt.1.5.2000 from the second opposite party insurance company for batch of stock belonging to  farmers.  On  8.1.2001 fire accident occurred at cold storage and produce of the complainant was burnt into ashes causing loss of Rs.82,500/-, the value of 55 chilli bags. When the complainant approached the opposite parties they assured the complainant that the claim would be   settled within a month. But the opposite parties   did not settle the claim as per law. Thus there is deficiency in service on the part of the opposite parties 

        In the year 2004, opposite party no.1 herein filed Civil Suit in O.S.No.43/2004  on the I Addl.Dist. Judge Court, Guntur on behalf of the  farmers  as custodian of the stock for compensation against the damaged stock. The suit was decreed on 20.10.2008 directing  the insurance company i.e. opposite party no.2 herein to settle the claim, who advanced the bank loan against his stock.  The complainant did not avail the bank loan and his name was not included in O.S.No.43/2004. Hence the complaint, seeking direction to the opposite parties, jointly and severally, to pay a sum of Rs.82,500/-  to the complainant with interest at 18% p.a. from the date of fire accident and to pay compensation of Rs.5000/- towards mental agony  in addition to the claim amount .

        The first opposite party remained exparte.

        The second opposite party filed written version. While admitting issuing of policy in favour of the opposite party no.1 covering the stock stored in the cold storage pertaining to various  depositors, contended that the claim of the complainant under the above C.C also included in the  suit no.43/2004 on the file of 1^st Addl. Dist. Judge, Guntur and that the suit was decreed in favour of the opposite party no.1. Hence the claim of the complainant is already determined by the Civil Court in O.S.No.43/2004. Hence the present complaint is not maintainable and is liable to be dismissed.

        This opposite party further contended that they have already deposited the amount  for the total   bags, which is more than the liability and  as the insurance  company already discharged its liability by depositing the amounts, no further liability  can be fastened on  the insurance company.    The complaint is liable to be dismissed with costs.

        During the course of enquiry, in order to prove his case, the complainant filed evidence affidavit and got marked Exs.A1 to A7. On behalf of the opposite party no.2, its Manager, K.Satyanarayana filed his evidence affidavit, but the opposite party no.2 did not choose to file any documents. 

Upon hearing the counsel for both the parties and on consideration of  the material on record, the District Forum, referring to the judgement in the suit O.S.No.43/2004 and Xerox copy of the order in  AS.MP.No.1311/2009  dismissed the complaint observing  that the  amount covered by the complainant was included in O.S.No.43/2004   and that the remedy if any for the complainant can be sought in O.S.No.43/2004 on the file of I Addl.Dist.  Judge Court, Guntur .

        Aggrieved by the said order, the complainant preferred the above appeal urging that the order of the District Forum to the extent it goes against to the appellant is contrary to law, weight  of evidence and  probabilities of the case. That the District Forum   failed to see that  the so called tripartite     agreement  is only between the  riots who  have taken  loan from the  bank and cold storage, the appellant did not avail loan from the Bank, so the judgement of O.S.No.43/2004 is not applicable to the appellant. That the District Forum   failed to see the  survey report filed  by opposite party no.2. That the District Forum failed to see the other aspects of the claim except the Civil Suit filed by opposite party no.1, who is the custodian of the stock.  Hence the impugned order is liable to be set aside .

        Heard the counsel for both the parties .

Now the points for consideration are

1.Whether the impugned order of the District Forum is liable to be set side as contended by the appellant/complainant? If so, on what grounds?

2.To what relief?

It is an admitted  fact that the complainant stored 55  red chilli bags in the Cold Storage of opposite party no.1  and agreed to pay Rs.60/- per bag towards the rent and that the opposite party no.1  insured the godown and stock on 1.5.2000 vide Ex.A2 ,  policy no.2001/9007. It is also not in dispute  that on 8.1.2001   fire accident took place in the cold storage of the opposite party no.1 damaging red chillies, not  only belonging to the complainant but also of other riots, within the validity period of the insurance policy.  It is also an admitted fact that the  first opposite party herein filed suit O.S.No.43/2004 on the file of I Addl Dist. Judge  Court, Guntur.         As seen from Ex.A5, the copy of final survey report, the complainant kept  his stock with opposite party no.1 and  he has not availed loan . 

         Along with the written version, the opposite party no.2 filed  judgement of the I Addl. Dist.Judge , Guntur  in O.S.No.43/2004 . As seen from the judgement, the opposite party no.1 herein filed the said suit against opposite party no.2 herein,  as a custodian of the stored consignment in their godown,  for recovery of sum of Rs.4,39,10,464/- for the loss and damage caused in the godown, due to fire accident and the suit was decreed for a sum of Rs.2,74,00,824/-. This amount includes the value of  bags of chillies that were kept in the cold storage of opposite party no.1.   

It is an admitted fact  that the Oriental Insurance Company deposited the decreed amount into the Syndicate Bank as per the  tripartite agreement entered into between the parties. It is therefore  obvious that  the complainant  herein may not be  a party directly to the suit . But opposite party no.1 herein filed the suit for recovery of the said amount on the ground that the damage caused to not only to chilli bags deposited by the complainant but also chilli bags that were deposited by other riots  in the cold storage of opposite party no.1 herein.  Under these circumstances it cannot be said that the complainant is  not a party to the said suit.

It is true that the opposite party no.1 filed  the above suit for recovery of the amount towards the damage caused to the chilli stock belonging to the complainant  and other riots. There is no direction in the decree either to the plaintiff (opp.party no.1) in the suit or to the Syndicate Bank, where the amount is ordered to be deposited by the insurance company to pay to  the complainant   and other farmers.  In the absence of such  direction the complainant  would become  helpless as to whom he should  approach  to recover his amount. The complainant cannot execute by himself the decree  that was made in O.S.No.43/2004. Opp.party no.1 alone has got right to  recover the decreed amount   and pay the amount to the complainant and other riots. 

The opposite party no.1 did not contest the case. In view of the above facts and circumstances , we find that there is deficiency in service on the part of the opposite party no.1. However , there is no deficiency in service on the part of the opposite party no.2 . Therefore the impugned order of the District Forum is liable to be set aside. 

        In the  result , the appeal is allowed setting aside  the impugned order of the District Forum . The complaint is allowed in part directing opposite party no.1 to pay the amount payable to the complainant out  of the decreed amount in O.S.No.43/2004 deposited by the opposite party no.2 in Syndicate Bank, after apportionment of the amount  among the complainant and other riots.  The opposite party no.1 is directed to pay a sum of Rs.5000/- towards the costs of the complaint and this appeal.  The opposite party no.1 is directed to comply with the order within a month failing which he is liable to  pay interest at 12%  on the amount payable to the complainant till the date of payment.   The complaint against opposite party no.2 is dismissed without costs.  

                                                                            PRESIDENT

                                                                             MEMBER

Pm*                                                                       Dt.20.9.2012