Date of filing:- 07/10/2013.
Date of Order:- 24/11/2015.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (COURT)
B A R G A R H.
Consumer Complainant No. 46 of 2013.
Sri Dibya Kishor Gahir, S/o Anantaram Gahir, aged about 33 (thirty three) years, R/o and P/o. Bandhapali, Ps. Barpali, Dist- Bargarh Proprietor of M/s Gahir Distributors, At- Bandhapali, Ps. Barpali, Dist. Bargarh
..... ..... ..... Complainant.
Andhra Bank, through the Branch Manager of Andhra Bank, Sarandapali Branch, Po. Sarandapali, Ps. Barpali, Dist. Bargarh.
Zonal Manager of Andhra Bank, At- Barmunda, Bhubaneswar, Dist. Khurda -751001
The Branch Manager of United India Insurance Company Ltd., At. Hotel Oriental Complex, Gosala Road, Bargarh, Po/Ps/Dist. Bargarh.
..... ..... ..... Opposite Parties.
Counsel for the Parties:-
For the Complainant:- Sri. A.N. Mahapatra Advocate with other Advocates.
For the Opposite Party No.1(one):- Sri S.C. Dash, Advocate with other Advocates.
and No.2(two).
For the Opposite Party No.3(three):- Sri A.K.Dash, Advocate.
-: P R E S E N T :-
Mrs Anjali Behera ..... ..... ..... ..... ..... ..... ..... I/c President.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... ..... ..... M e m b e r.
Dt. 24/11/2015. -J U D G E M E N T :-
Presented by the Sri P.K.Dash, Member.
The Complaint pertains to deficiency in service enumerated under the provision of Consumer Protection Act-1986. The magnetic approach to the Complaint is here under.
The Complainant is a customer of Opposite Party No.1(one) i.e. The Branch Manager, Andhra Bank, Sarandapali where as Opposite Party No.2(two) is the Zonal Head of Andhra Bank situated at Barmunda, Bhubaneswar. The Opposite Party No.3(three) i.e. The Branch Manager, United India Insurance Company, Bargarh is the insurance Company under whom the pesticide stock of the Complainant was insured.
The Complainant was availed with case credit facility upto the limit of Rs. 10,00,000/-(Rupees ten lakh)only by the Opposite Party No.1(one) and the pesticide for the said amount was insured by the Opposite Party No.3(three) and the premium towards aforesaid insurance was debited by the Opposite Party No.1(one) from the cash credit Account of the Complainant and remitted to the Opposite Party No.3(three) under the standing instruction of the Complainant as per the complaint reveals. Evidently the premium amount to the Rs. 3,706/-(Rupees three thousand seven hundred six)only was paid to the Opposite Party No.3(three) for the year 2011-2012 on Dt.30/03/2011 and the said insurance policy was valid upto Dt.30/03/2012.
Further the Complaint reveals that on Dt.12/10/2012 the pesticide stock of the Complainant at village Bandhapali under Barpali Police Station was set to fire due to electric sort circuit and the entire stock valued Rs. 10,04,435/-(Rupees ten lakh four thousand four hundred thirty five)only along with papers and one motor cycle was also burnt completely. The fact was immediately reported before the Barpali Police Station for which Barpali Police S.D.E No.322/12 was registered. The fact was also simultaneously intimated to the Opposite Party No.1(one) and No.3(three).
Further the Complainant reveals that the Opposite Party No.3(three) i.e. Insurance company did not entertain the claim of the Complainant on the ground that on the date of accident the Complainant had no insurance of his stock for non payment of insurance premium by the Opposite Party No.1(one) bank, the fact of which was also not intimated by Opposite Party No.3(three) to the Complainant. Also pleader notice was served on Opposite Party No.1(one) and No.2(two) to compensate the loss sustained by the Complainant for their negligence.
The non remittance of insurance premium by the Opposite Party No.1(one) to Opposite Party No.3(three) and also the non intimation of the fact by the Opposite Party No.3(three) to the Complainant amounts to deficiency in service committed by the Opposite Parties to the Complainant and are liable for loss sustained by the Complainant for the cause.
The Complainant prays for the direction of the Forum to pay Rs. 10,79,436/-(Rupees ten lakh seventy nine thousand four hundred thirty six)only towards compensation, mental agony and harassment along with litigation expenses by the Opposite Party to the Complainant.
The Complainant relies on the xerox copy of the following documents.
S.D.Entry No.322 Dt.13/10/2012 ( one sheet).
Pleader Notice Dt.12/11/2012 (two sheets).
Postal receipts (Original) (two sheets).
“Samaj” Newspaper Dt.14/10/2012 (one sheet).
Certificate issued by fire inspector (one sheet).
Being noticed the Opposite Parties appeared and filed their version denying most of the allegations of the Complaint.
The Opposite Party No.1(one)and No.2(two) in their version contend that although the Complainant is a borrower of this Opposite Parties for the cash credit limit upto Rs. 10,00,000/-(Rupees ten lakhs)only vide Account No.099713046000071 but is not a consumer as per provision of law. The insurance policy for the period Dt.30/03/2011 to Dt.30/03/2012 was obtained by the Complainant after due submission of proposal form by declaring the stocks which is also mandatory as per law. Further the fact about the fire accident in the pesticide stock of the Complainant was not investigated in any manner except a station diary entry.
Further this Opposite Parties contend that the borrower/Complainant is duty bound and legally obliged to pay the premium on the policy at least before one week of due date of payment and the receipt there of shall be submitted before the Opposite Party No.1(one) within seven days of payment. The Complainant neither submitted the insurance certificate nor acknowledged the non payment of insurance premium to the Opposite Party No.1(one. Opposite Parties further contend that for non submission of proposal form and stock details by the Complainant, the Opposite Party No.1(one) could not deduct the insurance premium from the account of the Complainant. The Opposite Parties in their version reveal that there was no standing instruction from the Complainant to make insured the hypothecated property except one premium Rs. 3,706/-(Rupees three thousand seven hundred six)only for the period Dt.30/03/2011 to Dt.30/03/2012 which was paid to the Opposite Party No.3(three).
The Opposite Parties contend that non payment of insurance premium by the Opposite Party No.1(one) in absence of proposal form and stock inventory details is not a deficiency in service committed by the Opposite Party No.1(one) and prayed for dismissal of the complaint with cost.
The Opposite Party No.1(one) and No.2(two) relies on the following documents.
Statement of account of the Complainant (eighteen sheets)
Composite account of the Complainant.
The Opposite Party No.3(three) in its version contends that the Complainant has not mentioned the policy particular in the complaint petition if issued by this insurance company i.e. Opposite Party No.3(three). So unable to answer this averment of the Complainant for the insurance premium amounting to Rs. 3,706/-(Rupees three thousand seven hundred six)only Dt.30/03/2011. The Opposite Party No.3(three) further contends that the fire accident on Dt.12/10/2012 was also beyond its knowledge and he was not intimated by the Complainant about the incident and he is under no obligation to intimate the Complainant regarding non payment of premium amount by the Opposite Party No.1(one). As on 12/10/2012 the stock of the Complainant was not insured so it was not under the coverage of insurance as per the norm of the insurance Act “NO PREMIUM NO AWARD” and this Opposite Party has been unnecessarily fastened in this complaint and he is not liable for any deficiency in service to the Complainant under the provision.
The Opposite Party No.3(three) prays for dismissal of the complaint invoking Sec. 26 of the Consumer Protection Act-1986.
Heard pleadings of the parties and delving deep into the evidence available in the case record, the Forum found the following issues to be decided as follows.
Whether the Complainant is a Consumer of Opposite Party No.1(one) and if any insurance policy is issued by the Opposite Party No.3(three) in favour of the Complainant for his pesticide stock at village Bandhapali Ps. Barpali ?
Whether there is any fire accident broke out at the pesticide stock/godown of the complainant on Dt.12/10/2012 ?
Whether the Opposite Party's are liable for any deficiency in service to the Complainant for their negligence in providing service to the Complainant ?
What relief the Complainant is entitled for ?
The Opposite Party No.1(one) and No.2(two) have admitted the Complainant to be their borrower for the CC loan limit upto Rs. 10,00,000/-(Rupees ten lakhs)only vide Account No. 099713046000071. Hence the Complainant is a customer of Opposite Party No.1(one) and becomes a consumer under the Opposite Party No.1(one). The Opposite Parties have invariably admitted to the fact that the Complainant is a borrower under the Opposite Party No.1(one) by taking loan limit upto Rs. 10,00,000/-(Rupees ten lakh)only vide Account No.099713046000071 and against that loan, the borrower was insured with the Opposite Party No.3(three) i.e. The United India Insurance Company Limited from 30/03/2011 to Dt.30/03/2012 to cover the value of the pesticide stock available with him. Hence the second part of this issue is needless to be proved.
The S. D. Entry No. 322 Dt.15/10/2012 of Barpali Police Station, the news published in daily news paper SAMAJ Dt.14/10/2012 and the certificate granted by the fire officer, Northern Range, Sambalpur clearly reveals that there was a fire accident at the pesticide stock of the Complainant at village Bandhapali, Po. Barpali, Dist. Bargarh on Dt.12/10/2012.
In the instant case the advocates for Opposite Party No.1(one) have relied upon the decision reported in “National Commission -2013 STPL (CL) 3050 NC where in clause-21 of the hypothication agreement between the Petitioner and respondent is the deciding factor in fixing liability of getting insurance policy and the liability is fixed on the owner of the vehicle to get the insurance policy but in the instant case Clause-25 of the hypothication agreement clearly speak, the borrower shall duly pay the premium on the policy at least one week before the due date of insurance and deliver the receipt to the bank within seven days of payment. The second part of this clause speaks, if the borrower makes any default in effecting insurance policy it shall be lawful (but not obligatory) for the bank to effect such insurance to keep the hypothecated property in good, perfect and working condition and to debit the cash, charges, expenses, incurred by the bank from the account of the borrower. Here the Opposite Party No.1(one) bank may not have any obligation to pay the insurnace premium on behalf of the Complainant but to secure his cash credit loan for the interest of the bank, the Opposite Party No.1(one) bank is lawfully duty bound to insure the pesticide stock of the Complainant and also for non action of Opposite Party No.1(one) bank for non payment of the insurance premium beginning from Dt.01/04/2012 to Dt.30/03/2013 is not explained properly by the Opposite Party No.1(one). Hence the citation is not squarely applicable in this case. Again the Opposite Party No.1(one) has relied upon the “Judgment of the Hon'ble Supreme Court of India in Civil Appeal No. 3645 of 2015”. In the instant case the Hon'ble Supreme Court of India in course of its excellency in deciding the case have highlighted on two cases one Pradeep Kumar Jain Vrs Citi Bank and another and in another case HDFC Bank Ltd Vrs Kumari Reshma and others. Both the cases have been discussed on the issue of liability of financer in obtaining insurance policy in the context of Sec 146 and 196 of Motor Vehicle Act-1988 which is not the subject matter of this Complaint case at hand. Under the provision of Motor Vehicle Act-1988 driving vehicle with insurance is mandatory and for its contravention punishment is prescribed under section 196 of the said Act. Hence this citation is also not squarely applicable in this case.
One more thing is that from the perusal of statement of account of the Complainant in the Opposite Party No.1(one) bank an amount of Rs.3,286/-(Rupees three thousand two hundred eighty six)only has been remitted to the United India Insurance Company for stock insurance on Dt.03/11/2012 and this remittance of insurance premium to the Opposite Party No.3(three) whether on the written instruction or on basis of following the contractual obligation in hypothecation agreement between the Complainant and Opposite Party No.1(one) is no way proved by the Opposite Party No.1(one). So what forbided the Opposite Party No.1(one) in not remitting the insurance premium even after expiry of insurance coverage period upto 30/03/2012 where there was sufficient balance in the account of the Complainant with Opposite Party No.1(one) bank. So the Opposite Party No.1(one) bank's plea as to written instruction from the Complainant/borrower to debit the insurance premium amount from his account to remit the same to the Opposite Party No.3(three) i.e. Insurance Company is not accepted by the Forum.
The Complainant has successfully established the fire accident in his pesticide stock/ godown on Dt.12/10/2012 and also damages thereof but has failed to establish the extent of damage due to fire accident and the existing pesticide stock available in the godown on the alleged date of accident which was also not established by the Police authority by any investigation to the incident reported to the Barpali Police Station vide SD entry No. 322 Dt.15/10/2012. However the Complainant has relied upon a decision reported in 2001(1) OLR page-115 between Basanta Manjaree Dash and LIC of India, Cuttack and others referring to the Apex Court decision AIR 2000 (SC) Page 43 where in it is held by his Lordship Hon'ble Supreme Court that the employer is duty bound to make such payment to the insurance company.
Here the paramount consideration in deciding the case mainly on the hypothetication agreement between the parties and no party to the agreement can deviate from it and in the instant case clause-24, 25 and 30 of hypothication agreement cast legal burden on Opposite Party No.1(one) and No.2(two) as well as on the borrower/Complainant to protect and secure the hypothicated property/stock from all sorts of loss or damage nevertheless the liability of paying insurance premium. Hence both the Opposite Party No.1(one), No.2(two) and Complainant/borrower are jointly liable for non-obtaining of insurance policy for the alleged period of incident by not paying the insurance premium to the Opposite Party No.3(three), the insurance company for a insurance coverage for loss or damages covered under the insurance Act.
The Opposite Party No.3(three) i.e. Insurance company is liable for any accident or risk covered by it only during the subsistence of insurance coverage. When the insurance premium is not sent to him for the alleged period of incident, the Opposite Party No.3(three) insurance company is no way liable for any sort of deficiency in service to the Complainant as per the provision of insurance Act.
Owing to the fact and circumstance of the case and weight of evidence on record and clause-24, 25 and 30 of the hypothication agreement Dt.31/12/2011 between the Complainant/borrower and Opposite Party No.1(one), the Forum arrived at a conclusion as to order as follows.
Opposite Party No.3(three), the Branch Manager, United Insurance Company Limited Bargarh is exempted from all liabilities foisted against him by the Complainant in the Consumer Complaint No. 46 of 2013.
Opposite Party No.1(one) and No.2(two) are jointly and severally liable for deficiency service to the Complainant and are directed to wave 50%(fifty percent) of loan amount of Rs.7,35,241.80/-(Rupees seven lakh thirty five thousand two hundred forty one and eighty paise)only including interest thereof pending loan against the Complainant on Dt.08/10/2012 vide Account No. 099713046000071 in the Andhra Bank Sarandapali Branch within forty five days from the date of Order.
No award as to cost
The Complaint is disposed off accordingly.
Typed to my dictation
and corrected by me.
(Sri Pradeep Kumar Dash)
M e m b e r.
I agree,
( Smt.Anjali Behera )
M e m b e r
I/C President.
