Per Mr P N Kashalkar, Hon’ble Presiding Judicial Member

Both the parties are absent. 

1.      This appeal is filed by the complainant whose complaint was dismissed by the District Consumer Forum, Yavatmal in CC No.293/05 decided on 25.01.2006. Against the dismissal, original complainant has filed this appeal. 

2.      Appellant had taken a loan of Rs.1.00 lac for his business.  He is having a shop of selling tyre and tube and other products at Digras.  Buldhana Urban Co-op. Credit Society Ltd. - original o.p. / respondent herein advanced the loan of Rs.1.00 Lac on 22.09.2004.  While advancing the loan o.p. - society  had specifically told the complainant / appellant herein that after giving loan the stock in trade of his shop should be got insured from the insurance company towards any loss arising out of fire, flood and specific perils etc.  While taking the loan the appellant had executed a Mortgage deed.  In the deed of mortgage clause 8(h) specifically cast the duty upon the borrower to insure the goods / stock in trade of his shop with the insurance company by paying necessary premium and renew the policy every year to safeguard the interest of loan amount advanced by o.p. Society.

3.      However, it appears that the complainant had not taken the policy and on 09.07.2005 there was a heavy flood.  The flood entered into Digras city.  Complainant lost the goods worth Rs.5.00 lacs in the said flood.  He approached the o.p. Society and requested them to provide insurance policy and other details.  The Society did not give any reply.  He therefore, approached the Grahak Panchayat but they could not procure the relief for the complainant and ultimately, he sent registered notice to the o.p. society and filed the consumer complaint, alleging deficiency in service on the part of o.p.- society. 

4.      The main grievance of the complainant was that it was the duty of o.p. – society to insure the goods of his shop premises by purchasing the insurance policy.  But o.p. society committed breach and did insure the goods.  Therefore, he suffered loss since he could not lodge insurance claim.

5.      O.p. filed written statement and relied upon the clause 8 (h) of the mortgage deed (Najar Gahan Khat), wherein it is clearly mentioned that to take insurance of the stock in goods or stock in trades, the complainant and guarantor both are responsible and they should purchase policy every year and renew it by paying necessary premium and when asked for by the society they shall produce before the society the policy document, receipts of premiums, etc.  O.p. pleaded that while advancing the loan it had given to understand to the complainant that it was the duty of the complainant to take the policy and insure the goods of his shop since they were advancing the loan of Rs.1.0 lac. However, it was the complainant who committed default by not purchasing the policy.  Therefore, they are not liable for the loss sustained by the complainant as it was his own fault in not insuring his goods by taking the policy from the insurance company.  The o.p. pleaded that they are not guilty of deficiency of service and prayed for dismissal of the complaint with cist.

6.      On the basis of affidavit, documents placed on record by the parties, the Forum below held that the complainant was defaulter.  He has not insured the goods kept in his shop at Digras, despite the term mentioned in the Clause 8(h) of mortgage deed.  Moreover, the Forum below also observed that by letter dtd.22.09.2004 the complainant had agreed to insure the stock in trade and shop premises by purchasing the policy and that he further agreed to produce the premium receipts when called for to do so.  So relying on Clause 8(h) of the mortgage deed the Forum below was pleased to hold that the complainant himself was defaulter in not purchasing the policy and it was not the duty of o.p.- society to purchase the policy for the shop of the complainant.  Therefore, the Forum below was pleased to dismiss the complaint. 

7.      Aggrieved by the dismissal of the complaint, complainant has filed this appeal.

8.      Both the parties are absent. We perused the impugned judgment and documents placed on record alongwith the affidavits filed by the parties. 

9.      We are finding that as per the Clause 8(h) of the mortgage deed, it was the duty cast upon the borrower to insure the goods of his shop to safeguard the goods from fire, flood, etc. but he had not purchased the policy.  Therefore, the Forum below was pleased to dismiss the complaint.  We are finding the dismissal of the complaint is just and proper and there is no merit in the appeal. As such appeal is liable to be dismissed.  Hence, the following order:-

ORDER

1.      Appeal is dismissed. 

2.      No order as to costs.

3.      Parties be informed accordingly.

          Pronounced on 18.04.2011.