Date of filing:- 22/12/2005.
Date of Order:- 28/09/2006.
OFFICE OF THE DISTRICT CONSUMER DISPUTIES REDRESSAL FORUM
(COURT) B A R G A R H
Consumer Disputes Case No.123 of 2005.
M/S Barik Bricks Industries, represented through it's Proprietor Govind Chandra Barik son of Late Purna Chandra Barik aged about 55(fifty five) years, resident of Village-PipilpPali, Post Office-dang, police station and Districts-Bargarh.
... ... ...Complainant.
-V e r s u s-
- Branch Manager, Bolangir Anchalik Gramya Bank, Bargarh Branch, Bargarh, At/Po/Ps/Dist-Bargarh.
- Branch Manager, The Oriental Insurance Company Ltd, At/Po- Ist floor, Ambica Complex, Canal Avenue, Bargarh under P.S. Bargarh, Dist- Bargarh.
- General Manager, District Industries Centre, Bargarh , At-Bargarh, P.o. Bargarh, P.s. Bargarh, Dist. Bargarh.
- Secretary, Orissa Khadi Village Industries Board, Bhubaneswar, At/Po. Bhubaneswar, Dist-Khurda
... ... ...Opposite parties.
Counsel for the Parties-
For the Complainant:- Sri Satya Prakash Mahapatra, Advocates.
For the Opposite Party No.1(one):- Sri B.K.Mahapatra, Advocate.
For the Opposite Party No.2(two):- Sri P.K.Mahapatra, Advocate others Advocates.
For the Opposite Party No.3(three):- Himself.
For the Opposite Party No.4(four):- Himself.
-:P R E S E N T:-
Sri Gouri Shankar Pradhan ..... ..... ..... President.
Sri Binod Kumar Pati ..... ..... ..... Member.
Miss Bhagyalaxmi Dora ..... ..... ..... Member.
Dt. 28/09/2006. -: J U D G E M E N T :-
Presented by Sri G.S. Pradhan, Presidents:-
The case pertains to deficiency in service as envisaged under the provisions of Consumer Protection Act.
Brief fact of the case is that, the Complainant is a physically handicapped and unemployed person and in order to earn his livelihood by engaging himself in production and supply of bricks started a bricks industries by name and style M/s Barik Brick Industry in the year-2004. It was a project of estimate of Rs.10,00000(Rupees ten lakhs)only of a scheme of O.K.V.I.S, Bhubaneswar which was duely recongnised and approved by General Manager. District Industries Centre . Bargarh the the Opposite party No.3(three). The said Industries was financed by Branch Manager, B.A.G.B, Bargarh the Opposite party No.1(one) to the tune of Rs.9,92,000/-(Rupees nine lakh ninety two thousand)only. Which was released phase by phase on different dates after observing the necessary formalities. The Complainant alleged that due to non-disbursement of sanction loan at once, the Construction of infrastructure became delayed un-reasonably.
The said loan was sanctioned for construction of fixed chimney office room, and store sheed with pump and generator sat., and was insured under the standard fire policy and special peril policy by the Opposite party No.2(two) vide police No.124/2006 Dt.22/06/2005 through the Opposite party No.1(one).
Unfortunately the said chimney was broken down and got damaged completely due to a heavy store on Dt.03/08/2005. The fact was intimated to the opposite party No.1(one) as well as Opposite Party No.2(two) and also claim was lodged for settlement of claim to the Opposite party No.2(two). The Complainant requested several time to Opposite party No.2(two) to take immediate step for settlement the claim. But as no further response was received from the Opposite Party no.2(two), nor the Opposite party no.1(one) has given a little attention to release a further amount in order to repair or reconstruct of the broken chimney to continue the project, the Complainant was forced to close the project and disengaged the persons attached there with.
Due to that act of the opposite parties No.1(one) and No.2(two), the Complainant was living on a financial crisis and also burdened with a huge loan amount with occurring interest there on and is loosing the subsidy amount that he would be entitle to get, if he could have begin the production of bricks.
Alleging deficiency in service by the Opposite Parties the Complainant filed this case claiming Compensation from the Opposite Parties as per the complain petition.
On being noticed the Opposite Parties appeared and filed their respective version denying their respective liabilities.
In its version the Opposite Party No.1(one), admitted that, the Complainant having failed to insure the plant and machinery, this Opposite Party Bank Insured the plant, machinery with the Oriental Insurance Company Ltd, Bargarh Branch and had taken a special peril policy vide policy no.214/2006 , Dt.22/06/2005 against all insurable hazards to the unit to the extent of Rs.6,00,000/-(Rupees six lakh)only for a period covering from dt.22/06/2005 to Dt.21/06/2006 and paid a premium of Rs.3,200/-(Rupees three thousand two hundred)only including the service charge , and the amount was debited in the loan account of the Complainant. Further it is admitted that the said amount is sanctioned for construction of fixed chimney, office room, store shed with pump and generator set and spent the entire amount on that which was insured by the Opposite Party No.2(two).
The allegation of making delay in disbarment of loan by this Opposite party No.1(one) is denied by this Opposite Party and pleaded that, the Complainant has availed the loan facilities at different phase as agreed between the parties and at no point of time had shown his dissatisfaction to this Opposite Party about disbursing the loan amount. Out of the sanction amount the Opposite Party had made a total disbursement of Rs.6,08,485/-(Rupees six lakh eight thousand four hundred eighty five)only in a phase manner after taking in to progress of the work as per agreement between the parties. Hence there is no any deficiency to service by the Opposite Party No.1(one) and denied its liabilities to pay any Compensation to the Complainant and prays for dismissal of the case.
The Opposite Party No.2(two) denied all the allegation made by the complainants and challenges the maintainability of the case on the ground that as the Complainant being a Commercial concern availing the service of this Opposite Party for commercial purposed is not a consumer as per the provisions of C.P. Act, the Complainant having filed the present case of before the settlement of the claim, there existed no cause of action and hence the present case is not maintainable being prematured.
The Opposite Party No.2(two) denied its liability to pay any compensation as claimed in the petition and prays for dismissal of the case against this Opposite Party No.2(two).
The Opposite Party No.3(three) and No.4(four) filed their respective version denying their liability to pay any compensation to the Complainant. As per the schematic provision after verification by the official of O.K.V.I. The subsidy amount will be adjusted towards the loan amount of the borrower/ Complainant. Since the project is not complete , to avail the incentives the promoters has to resume production as per term and condition and margin money to be availed after verification as stated above . Further it is pleaded that the deposit of Rs.9,920/-(Rupees nine thousand nine hundred twenty)only by the Complainant is not the caution money as stated by the complainant , but it is the Registration fees which is non refusable. Hence the question of forfeiting the said amount done not arise.
The Parties has filed copies of documents in supports of their respective cases. Besides the documents the complainant has also filed an affidavits to prove its case.
The Complainant has filed this case for delay in settlement of insurance claim against the Opposite Party No.2(two) and non-disbursement of sanction amount by the Opposite Party No.1(one).
It is not disputed by the Parties that, no recommended action of Opposite Party No.3(three) and No.4(four), the Opposite party No.1(one) has sanction a loan to the extant of Rs.9,92,000/-(Rupees nine lakh ninety two thousand)only out of which the Complainant has availed an amount of Rs.6,08,485/-(Rupees six lakh eight thousand four hundred eighty five)only for construction of the said chimney. Office room and store and for generator.
Further it is also not disputes by the parties that the said fixed chimney, office room factory shed are insured under standard fire and peril policy by the Opposite Party No.2(two) through Opposite party No.1(one) vide insurance policy No.214/06 covering for a period of Dt.22/06/2005 to it 6.06 and the said chimney was got damaged to it due to a heavy storm on Dt.03/08/2005 which was Intimated to Opposite Parties and lodged claims before the Opposite party No.2(two).
The Opposite Party No.2(two) is admitting the case of the Complainant to the extant that there is an unforeseen event by which the complainant is having sustained a loss but disputing to the ration of damage at the same time the Opposite party No.2(two) is repudiating to indemnify the Complainant as same documents as alleged to be fabricated. It is averred from the very beginning that the chimney was insured through Opposite party No.1(one) and the premium amount has been paid to Opposite Party No.2(two) by debiting from the loan account of the Complainant and in that sequence all the related documents were being passed through the Opposite Party No.1(one) to the Opposite Party No.2(two) and on that event the Opposite Party No.2(two) not put any question upon the genuineness of the documents. Now at the time when the policy turned into claim, the Opposite Party No.2(two) can not raised a issue that, weather there is any insurable interest. As the cited decision reported in 1992(2) 716 C.P.R.(N.C.). It is held that An insurer was not allowed to question the presence of insurable interest after the policy had become a claim. The presence or absence of interest should be questioned and inquired into, before the issue of the policy and not at that time when the policy has been coveted into a claim.
Next the Advocates for Opposite Party No.2(two) argued that the chimney was got damaged on Dt.03/08/2005 Information and claims were received by the Opposite Party No.2(two) on Dt.19/08/2005 and there after investigation were done and when the investigation was not being concluded weather to accept the claim or repudiate the claim, the present case has been filed. So at the time of filing of this case there is no cause of action and the case deserved to be dismissed. In this point the Advocates for the Complainant argued and submitted that, the case is filed against the Bank Opposite Party No.1(one) who finance the scheme recommended by the opposite Party No.3(three) and No.4(four) and that act of having insurance coverage of the chimney is part of a series of transaction of which has no separate and independent identity further the Complainant had kept his patience and keep a regular watch over the various act play by Opposite Parties till five month, at that time the Complainant was having a huge amount of loan growing with interest day by day and the Opposite Party No.2(two) has been delaying in the name of investigation to settle the insurance claims of the Complainant. Hence found no alternative the Complainant filed this case for settlement of the insurance claim.
In support of this the Complainant has relied upon the decision passed by Hon'ble Supreme Court of India reported in 2005(2) Supreme Court page 518. Where in the Principle enunciated as “A suit of Civil nature disclosing cause of action even if filed before the date of which plaintiff became actually entitled to sue and claim relief founded all such a cause of action is not to be necessary dismissed for such reason. So in view of this decision the case be decided on merit and not to be dismissed for such reason.
The plan and estimate prepared by the Er. Suresh Meher for construction of the fixed chimney for a cost of Rs.5,00,000/-(Rupees five lakh)only is approved by the O.I.C. And on the recommendation of Opposite Party No.3(three) and No.4(four) the Opposite Party No.1(one) disbursed the amount for construction of the chimney to the Complainant and the said chimney was insured by the Opposite Party No.2(two) through Opposite Party No.1(one). The Complainant claims to indemnify the entire loss Occasioned arising out if damage of the chimney was insured amount of Rs.5,00,000/- (Rupees five lakh)only. Certificate of Additional Tahasildar, Bargarh is filed by the Complainant to prove the damage of the chimney. Where as in the survey reported it is stated that the chimney has got partially damaged and has assessaged the loss of breakage of the chimney at Rs.20,500/-(Rupees twenty thousand five hundred)only. As per the Surveyor/loss assessor resort dated 15/02/2006 it is stated that, the top surfacial head of the chimney got damaged/developed cracks. About 87 feet from the base surface of the chimney found intact, and assessed the loss to be Rs.20,500/-(Rupees twenty thousand five hundred)only. Another investigator Mr. Surendra Kumar Panda, Advocates was deputed by the Opposite Party No.2(two) to investigate the case and to submit his report. The report reveals that the hight of the existing broken chimney would be about 50 feet from the ground level on the chimney is existed on a base made on bricks and need measuring a diameter of about 10' X 10' X 3'. The investigator also observed some cracks mark existed in the exiting broken chimney.
So both the report submitted by the loss assessor and investigator contradicts with each other. However it is established from both the reports that the fixed chimney was got damaged to same portion and found some crack in the existing chimney, due to a heavy storm. It is not stated in their report that the cracks is repairable. The investigator report and the loss assessor report is not supported by any Affidavits.
The Complainant has filed a joint Affidavits by one Sattar Mishtry S/o Lata Isaq Mishtry and Hamit Mishtry S/o Lata Chan Mishtry stating that they are professing to manufacture and or repair various types of chimney need for production of Bricks. Further, they states that remaining 30(thirty) feets which were in a deteriorating, conditions more than 5(five) cracks were being found there is having a part of cemented portion of chimney was hanging on the top with no supporting. So apprehension of hazardous situation at any moment upon the man at work near the chimney could not be ruled out and so advised the Complainant to destroy the remaining 30(thirty) feet of chimney. Accordingly to the evidence filed by the Complainant, the remaining portion of chimney is not repairable and the loss assessed by the surveyor for a sum of Rs.20,500/-(Rupees twenty thousand five hundred)only is not justifiable and against the principle of natural justice.
Further the Complainant wrote several letters to the Opposite Party No.2(two) for settlement of the claim and also the Opposite Party No.1(one) vide its letter Dt.03/12/2005 requested in writing to Opposite Party No.2(two) since the borrower is charged interest for the loan amount, the insurance claim may be processed at an early date to enable him to reconstruct the chimney with a view to start the production and generate income.
.
The Opposite Party No.1(one) B.A.G.B. Bargarh on recommendation the loan application of the Complainant has sanctioned a sum of Rs.9.40 lakh vide their order Dt.22/02/2005 out of which a sum of rs.6,08,485/-(Rupees six lakh eight thousand four hundred eighty five)only is disbursed to the Complainant in phase manner as per the term and condition of the agreement and no point of time had shown his dissatisfaction by this Opposite Party No.1(one) about disbursing the loan amount to the Complainant. So there is no any deficiency in service as alleged by the Complainant.
Next the Complainant has not made any claim against the Opposite Party No.3(three) and Opposite Party No.4(four). Hence they are free from liability.
In support their respective cases the Complainant has relied on the decision report in Consumer Protection Reporter-1992(2) page 716(National Commission) in the case of United India Insurance Co. Ltd-Vrs- Shri Hasan Sultan Nadaf and 2005(2) Supreme Court page 518 on the other side the Opposite Party No.2(two) relied on the decision in Consumer Protection Reporter-2005(2) page 122(National Commission) in the case of M/S Murari Woollan Milla Ltd-Vrs- The Divisional Manager. The United India Insurance Co. Ltd and Others. National Consumer Judgement-2003 page 581(National Commission) In the case of Sushanta Kumar Roy -Vrs-M/S Oriental Insurance Co. Ltd, Consumer Protection Reporter-1994(3) page 682(State C.D.R. Commission, Cuttack) in the case of Kanhu Charan Nanda-Vrs- New India Assurance Co.Ltd., Consumer Protection Reporter-1996(2) page 177(N.C.) M/S Pondicharry Textile Corp's Ltd-Vrs- M/S Batco Roadways and Ors and C.P.R. 1991(2) page 425(NC) Oriental Insurance Company Ltd-Vrs-M/S New Jaipur Dyeing and Tents Works.
In view of above facts and circumstances of the case as discussed above. We allowed the case and directed the Opposite Party No.2(two) to give the sum assured amount i.e. Rs.5,00,000/-(Rupees five lakh)only along with 9%(nine percent) interest per annum from the date of filing of this case i.e. Dt.22/12/2005 till the date of Order Dt.28/09/2006 and sum of Rs.1,000/-(rupees one thousand)only as litigation expenses to the Complainant with in 45(forty five) days from the date of this order failing which the total amount shall carry an interest at the rate of 18%(Eighteen percent) per annum till the date of actual payment.
Case disposed off accordingly.
Types to my dictation
and corrected by me
( Sri Gouri Shankar Pradhan)
President.
I agree, I agree,
( Sri Binod Kumar Pati ) ( Miss Bhagya Laxmi Dora )
Member. Member.
