Punjab

StateCommission

A/1445/2014

Hem Kiran - Complainant(s)

Versus

Bank of India - Opp.Party(s)

Ashok Giri

09 Jun 2015

ORDER

     FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1445 of 2014

 

                                                          Date of Institution: 29.10.2014                                                              Date of Decision :  09.06.2015

 

Hem Kiran Son of Sh. Rulda Ram resident of H.No.200, Mohalla Shekhan/Char Hattian, Ropar, Tehsil and District Ropar                                                                                                                                                                                                                                                                                                   …..Appellant/Complainant

         

                                      Versus

 

1.       Bank of India through its Chairman, Branch Bela Road, Ropar.

 

2.       Bank of India through its Branch Manager Bela Road, Ropar, Tehsil       and District Ropar

 

3.       National Insurance Company Limited, Nangal Chowk, Ropar Tehsil         and District Ropar through its Branch Manager

 

                                                          …..Respondents /Opposite Parties

 

 

First Appeal against order dated 17.09.2014 passed by the District Consumer Disputes Redressal Forum, Ropar

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri.Vinod Kumar Gupta, Member

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant                        :         Sh.Maninder Singh Advocate 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 17.09.2014 of District Consumer Disputes Redressal Forum Ropar, dismissing the complaint of the complainant. The instant appeal has been preferred against the same by the complainant now appellant in this appeal.

2.      The complainant Hem Kiran has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he is loanee of OP No.2 under the scheme of Prime Minister's Employment Generation Programme (MSME) for business of ice cube manufacturing. The loan of                Rs.3,60,000/- from OP No.2, vide loan account no.657070410000006 for the period of five years in the year 2011. A fire broke out in the shop of the complainant on 11.11.2011 and ice cube machine along with chiller fridge and tow frost refrigerators along with R.O System and one water tank and whole electric and wooden fittings were burnt in the said fire and DDR No.23 (A) dated 12.11.2011 was lodged with the police. The complainant filed the complaint praying that OPs be directed to pay the total damage amount of Rs. 3,71,170/- to him along with interest @ 18% per annum, besides Rs.20,000/- as compensation for mental harassment and Rs.20,000/- for costs of litigation.

3.      Upon notice, OP No.1 and 2 filed written reply by raising preliminary objections that complaint is not maintainable. The complainant is not a consumer. No insurance premium amount has been received from the complainant or debited/charged to his account. The complaint is barred by time and is liable to be dismissed. The complainant has not come to the forum with clean hands, as he has filed the complaint with the purpose to stop the recovery proceedings, for which OPs are not liable for payment of any claim amount to the complainant. Any deficiency in service  on the part of OPs has been vehemently denied. On merits, OPs admitted that the complainant has availed loan from the answering OPs and it is stated that all the payments received from the complainant had been deposited in the said loan account. It  was denied that any commitment was made with the complainant or that he was told that the matter under process with OP No.3. All other allegations leveled against OPs have been denied and OPs prayed for dismissal of the present complaint.

4.      Upon notice, OP No.3 filed its separate written reply raising preliminary objections that there is no insurance policy in possession of the complainant or in possession of the OP Bank. The complainant has unnecessarily dragged the OP No.3 into this litigation because in spite of filing of separate application by the OP No.3 for production of the insurance policy covering the goods of the complainant and the date of accident, no insurance policy has been produced, thus, complaint filed against the OP no.3 being false and vexatious is liable to be dismissed. On merits, OP admitted that OP No.3 is not the insurer of the complainant covering the date of alleged accident as such no claim is payable by it. All other allegations leveled against OP No.3 have been denied and OP No.3 prayed for dismissal of the present complaint.

5.      The complainant tendered in evidence the affidavit of complainant Hem Kiran Ex.C-1, application form Ex.C-2, proposal form Ex.C-3, certificate of Enterpreneurship Development Programme Ex.C-4, copies of retail invoice Ex.C-5 to  C-8, copy of quotation of M/s Pal Enterprises Ex.C-9, copy of document Ex.C-10, copy of daily station/general diary Ex.C-11, letter addressed to Branch Manager, Bank of India Roopnagar Ex.C-12, newspaper cutting Ex.C-13, letter addressed to Hem Kiran complainant dated 3.3.2014 Ex.C-14, copies of policy documents Ex.C-15 to Ex.C-16.   As against it, OPs tendered in evidence affidavit of Adarsh Paul Singh Ex.OP-1/A, copy of statement of account of complainant Ex.OP-1/2, copy of letter addressed to Branch Manager Bank of India Ropar Ex.OP-1/3 , affidavit of Suresh Kumar Sharma Branch Manager National Insurance Company Ltd Ropar Ex.OP-3/1. On conclusion of evidence and arguments, the District Forum, Ropar, dismissed the complaint of the complainant by virtue of order dated 17.09.2014. Dissatisfied with the order of the District Forum Ropar dated 17.09.2014, the complainant now appellant has preferred this appeal against the same.  

6.      We have heard learned counsel for the appellant at the admission stage of the appeal and also examined the record of the case. The counsel for the complainant now appellant forcefully submitted before us that it was obligatory on the part of OP No.1 and 2 to insure his Ice Cube factory for which loan was sanctioned to him. Non-insurance ipso facto proves that there is deficient act on the part of its bankers OP No.1 and 2. The complainant has filed the complaint against the OPs claiming  above compensation. OP No.3/National Insurance Company took plea that there is no insurance policy with the complainant or OP No.2 issued by it. The complaint has wrongly impleaded it. OP No.1 and 2 specifically averred in the complaint that no insurance premium was received, debited or charged to the account of the complainant in respect of the insurance payable to OP No.3. OP No.1 and 2 are not aware whether any policy was purchased by the borrower from OP No.3/Insurance Company or not. The District Forum dismissed the complaint of the complainant primarily on the ground that complainant has failed to specify it on the record that it was obligatory on the part of OP No.1 and 2 to insure the stock of the  complainant with OP no.3 as per the loan contract. Undisputedly, no premium was paid to OP No.3 in this case and hence question of issuance of the policy by it is of no consequence.

7.      Now, the next point is whether it was obligatory on the part of the OP No.1 and 2 to insure the stock of the complainant with OP No.3 or not. Our attention has been drawn to Clause 15(5) (i) of the terms and conditions of hypothecation-cum-loan agreement Ex.C-14, which reads as under :

          "The borrower(s) shall at all times keep such items of security   as are of 'insurance nature insured against loss or damage by        fire and other risks as may be required by the bank and shall        assign in favour of the bank and deliver to the bank all such           policies. If the borrower(s) fails/fail to furnish the insurance        policies duly renewed and assigned in favour of the bank two       weeks before the date of maturity or expiry of the policy it shall     be lawful but not obligatory upon the bank to insure and to pay    insurance premium by debit to the borrower(s) account(s) in      respect of the personal insurance premium as prescribed by          the bank. In case borrower failed to pay such premium then         the bank is not bound to do, to debit appropriate premium           towards personal insurance of the borrower(s). Such insurance          policy shall contain a bank's clause enabling the bank to collect           the proceeds from the insurance company and appropriate       towards the loan amount."

8.      We find that as per Clause 15(5) (i) of loan agreement Ex.C-14, it was not obligatory on the bank to get the machinery and fittings purchased by the complainant with the loan amount sanctioned by the banker to get insured. Rather it was duty of the complainant himself to get the said items insured  and assign in favour of the bank and he should have delivered the insurance policy to the bank. In view of this express clause contained in the hypothecation agreement Ex.C-14, the bank OP No.1 and 2 are under no obligation to get the machinery and equipment of the complainant insured. No premium was paid to OP No.3 and there is no question of issuance of any policy by it.

9.      As a result of our above discussion, we find that there is no merit in the appeal for its admission, in view of the express contractual Clause 15(5)(i) Ex.C-14.  Resultantly, the appeal is without any merit and same is hereby dismissed at admission stage.

10.    Copies of the order be communicated to the parties as per rules.

11.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                 (VINOD KUMAR GUPTA)

                                                                             MEMBER

 

 

                                                          (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

June  9 2015.                                                                 

(ravi)