Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
This appeal arises out of an order dated 30/04/2009 passed in consumer complaint No.203/2007 Tejaram Fojaram Jakhad V/s. Central bank of India & Anr. by District Consumer Disputes Redressal Forum, Pune (‘Forum’ in short).
Admittedly, in the instant case, certain credit/loan facility was availed for his business by the appellant (hereinafter referred to as ‘Complainant’) from respondent No.1-Central Bank of India (hereinafter referred to as ‘Bank’). Stock in trade appears to have been hypothecated towards loan or credit facility obtained from the Bank (as alleged by the complainant). According to the Bank, stock in trade is not hypothecated, but only credit limit was given against the mortgage of immovable property by way of security. Unfortunately, on 28/04/2006 there was fire in the shop of the complainant and the goods stored therein got damaged. According to the complainant, he sustained loss to the tune of `18 Lakhs. The Bank had obtained the insurance of the immovable property (which is given as security, supra) from the Insurance Company. Insurance Company against that policy, after due consideration, sanctioned the claim to the extent of `3,37,000/- and credited that amount as per the mutual agreement with the Bank which was credited in the credit facility account/loan account of the complainant. Now the complainant has no grievance left about such appropriation in view of Pursis filed today stating therein that he does not want to prosecute the complainant vis-à-vis the appeal against the Insurance Company. Pursis marked as Exhibit-‘X’. Against the Bank complainant’s grievance is that they have not taken insurance for the entire stock in the shop and thus, the Bank was deficient in rendering service to the complainant in not taking proper value of insurance and therefore, they are responsible to make good to the complainant at par to the loss sustained by the complainant due to fire.
Heard. Appeal is admitted only against the Bank and heard forthwith with consent of parties. (Appeal is not admitted against the Insurance Company in view of Pursis marked Exhibit-‘X’, supra).
The real controversy is about determining the compensation on establishing that there is a deficiency in service on the part of the Bank, as alleged, in light of the terms of contract as settled in between the Bank and the complainant. Therefore, in this background, the document witnessing such contract either Hypothecation Deed or Mortgage Deed or any other documents that will reflect the same since the parties admit that there exists such document witnessing said transaction between the complainant and the Bank, are necessarily to be placed on record tendering them in evidence as per provisions of Section 13(4) of Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ for brevity). It is grievance of the complainant that he is not in possession of the document. Even, if it is so, as per Section 13(4) of the Act, it was necessary to take appropriate steps to bring those documents on record since basically it is his primary responsibility to establish his case. Likewise, it being a civil nature dispute, equally it is a responsibility of the Bank to tender the relevant documents in evidence on which they relied either to substantiate their case that only immovable property was mortgaged or otherwise. From the perusal of the impugned order, it appears that no attention is paid by both the parties and even by the Forum to comply the requirements of Section 13(4) of the Act. Therefore, in the interest of justice and to settle the dispute justly and properly, we find it proper to set aside the order of dismissal of complaint as against the Bank to remit the matter back to the Forum in the light of aforesaid observations so that the Bank as well as the complainant would get proper opportunity to lead their respective evidence on affidavit and tender documents in evidence as per requirements of Section 13(4) of the Act and thereafter, on hearing both the parties, dispute can be settled in just, proper and legal manner. To advance justice, we find this course is proper though the Bank had some grievance about remand of the matter. But, considering the fact that the Bank is also sail in the same boat, we find it proper to adopt the course as mentioned earlier. We hold accordingly and pass the following order :-
-: ORDER :-
1. Appeal stands not admitted against the respondent No.2/Insurance Company as not pressed.
2. The appeal is allowed. The impugned order dated 30/04/2009 as against opponent/Bank is set aside. Consumer complaint No.203/2007 as against the Bank only as opponent is remitted back to Forum in the light of the observations made in the body of the order.
3. Both the parties i.e. complainant and the Bank shall appear before the Forum on 02/05/2011.
4. On their appearance, Forum shall give reasonable opportunity nay it will be desirable that both the parties come with evidence on the date of appearance, to lead evidence as per provisions of Section 13(4) of the Consumer Protection Act, 1986 and thereafter, hearing them, settle the dispute according to the law.
5. Consumer complaint be disposed of expeditiously.
6. In the given circumstances, both the parties to bear their own costs.
7. Copies of the order be furnished to the parties.
Pronounced
Dated 1st April 2011
