IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 120/10 DATED 03.06.2010<br /> ORDER<br /> <br /> Complainant R.M. Yogananda, NO.639, 19th cross, 4th Main, Vidyaranyapuram, Mysore-570008.<br /> <br /> (In person)<br /> <br /> Vs. <br /> Opposite Party 1. The Senior Branch Manager, Karnataka Bank, Chamundipuram, Mysore-570004.<br /> 2. The Manager, M/s Oriental Insurance Co. Ltd., (Chamaraja Double Road) Mysore-24.<br /> 3. The Manager, Bajaj Alliance General Insurance Co. Ltd., 363, Shri Hari Complex, Seetha vilas Road, Mysore-24. <br /> (By Sri. A.V.J for O.P.1, J.S.K. for O.P.2 & B.P.K. for O.P.3, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 07.04.2010<br /> Date of appearance of O.P. : 22.04.2010<br /> Date of order : 03.06.2010<br /> Duration of Proceeding : 1 Month 12 days<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> <br /> 1. Complainant has filed the complaint Under Section 12 of the Consumer Protection Act, alleging deficiency in service on the part of the opposite parties, seeking direction to pay the amount narrated therein the prayer column.<br /> <br /> 2. It is alleged in the complaint that, the complainant availed loan of Rs.63,800/- from the first opposite party Bank, to purchase the computer with accessories. Oral instructions were given by the first opposite party to the complainant, to remit Rs.1,200/- P.M. Loan details or copy of the order were not furnished. Notice dated 09.03.2009 was sent by the first opposite party to the complainant. It is noticed by the complainant that fact of insuring the computer and accessories with second opposite party was not made known to the complainant. The second opposite party is bound to produce the policy. Subsequently, the computer and the accessories were insured with the third opposite party. The accessories were wrongly mentioned. The laser printer worth Rs.16,000/- went out of order since 13.07.2005. The first opposite party should have covered the laser printer under electrical equipment policy instead obtained policy covering earthquake etc.,. The complainant has paid the premium regularly. Valuation charges have been recovered by the first opposite party, but in fact there was no actual inspection of the hypothecated goods. Rs.25/- is claimed towards notice, but it was not served on the complainant. The first opposite party adjusted subsidy amount with interest and even Rs.400/- out of S.B. account. Hence, it is prayed to award the amount detailed in the prayer column.<br /> <br /> 3. The first opposite party in the version has stated that, the complainant has repaid the entire loan without any reservation and closed the amount. Hence, the complaint is not maintainable. Certain other allegations are denied. It is stated that, the hypothecated goods were not insured for breakdown. Certain amount was credited by the complainant to wrong account. In view of the order of Banking ombudsman, present complaint is not maintainable.<br /> <br /> 4. The second opposite party in the version has contended that, there is no deficiency on its part and policy particulars are not furnished. Also, it is stated that, the alleged policy pertains to the year 2004-05 and after more than 5 years, complaint is filed. Also, it is contended that, the policy was in respect of the goods offered for security of the loan only. So also it is stated that, no claim as per the terms and conditions of the policy was submitted.<br /> <br /> 5. The third opposite party has contended that, the complainant did not submit any Claim Form and that there is no cause of action. Certain allegations made are denied. Some other contentions are similar to that of the first and second opposite party.<br /> <br /> 6. To substantiate their respective contentions, the complainant and the opposite parties have filed their affidavits and produced certain documents. We have heard the arguments and perused the records.<br /> <br /> 7. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service either on the part or of all opposite parties or any of them and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 8. Our findings are as under:-<br /> Point no.1 : Partly in affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> 9. Point no. 1:- Without repeating the facts noted earlier, the first relief sought by the complainant is, to direct the first opposite party to pay a sum of Rs.16,000/-, value of the laser printer, which was insured and to take back the material lying with the complainant. It is so claimed alleging that, the said accessory of the computer system was insured and the same went out of order from 13.07.2005. Amongst other contentions opposite parties have contended that, the complaint in this regard is barred by limitation. In paragraph 7th of the complaint, the complainant has alleged the laser printer went out of order from the said date. Present complaint is filed in the year 2010, after about 5 years, Under Section 24A of the Consumer Protection Act, complaint shall have to be filed within two years from the date of cause of action. Considering the facts admittedly in the year 2005, the laser printer went out of order and the present complaint filed after lapse of 5 years, is clearly time barred. In addition to it, it is submitted for the Insurance Company that, there is no deficiency in service on their part since no claim petition was filed either by the complainant or by the first opposite party. There being no Claim Form submitted and there is no repudiation, there is no cause of action. Then it is submitted that, the hypothecated goods were insured for the benefit of the first opposite party Bank and the complainant is not entitled for any amount on the basis of the Insurance. In this regard, a ruling reported in AIR 2004 Punjab & Haryana 83 is relied upon. It is true, in the said ruling Hon’ble High Court has held that, the clauses of the hypothecation agreement were enabling clauses for the benefit of the Bank-same could not be used by the borrower for denying its own liability and for making claim against Bank. This ruling is not helful to the opposite parties since the clauses, which were in the hypothecation agreement in the said case noted in 10th paragraph of the judgment, are not similar to the clauses of the agreement in the case on hand. In that case, there was specific mention that, the insurance was for benefit of the Bank. But such is not the term or condition of the agreement between the complainant and the first opposite party. For this reason, ruling will not help the opposite parties. Next contention put forth for the opposite parties is that, the hypothecated goods were insured in respect of fire accident, earthquake etc., but not regarding breakdown. That fact is not seriously disputed by the complainant. Even considering the allegation made by the complainant, laser printer was insured against earthquake etc., instead of breakdown at the whims and fancies of the first opposite party. What ever it may be, it is fact that, towards breakdown, the laser printer was not insured. When that is so, on the basis of the Insurance Policy, the complainant is not entitle for loss or damage caused to the laser printer on the ground of breakdown.<br /> <br /> 10. Learned advocate for the first opposite party vehemently argued that, since the loan account has been closed, the complainant has waived his rights to claim anything from the first opposite party. In this regard, a ruling reported in (2001) 5 SC 659 is relied upon. As could be seen from the records, the complainant has not got closed the loan account, but the first opposite party Bank adjusting certain other amounts standing in the credit of the complainant including some amount from the S.B account of the complainant, the first opposite party Bank has closed the loan account. Hence, there is no question of waiver of any rights by the complainant. For this reasons, the ruling will not help the first opposite party.<br /> <br /> 11. Further grievance of the complainant is that, the goods hypothecated were not insured, but the goods mentioned in the policy are different one. Considering the material on record, it is true, the laser printer company purchased by the complainant is different than insured one. In this regard, it is submitted for the first opposite party that, in fact, the complainant had submitted two quotations and hence, there is mistake. But it is relevant to note that, according to the first opposite party Bank, the hypothecated goods were periodically inspected. If really there was any such inspection certainly said mistake could have been noticed. In this regard, there is negligence on the part of the first opposite party, but in view of the fact that, the claim of the complainant so for concerned to compensation or damages in respect of laser printer is time barred, the deficiency in this regard do not help the complainant to claim damages.<br /> <br /> 12. Then it is alleged by the complainant that, the first opposite party instead of insuring the hypothecated goods to cover the electrical equipments breakdown and taking policy in this regard, took the policy towards fire accident and earthquake etc.,. This aspect also could have appreciated but, in view of the limitation noted here before, no compensation can be awarded to the complainant.<br /> <br /> 13. Further allegation of the complainant is that, the goods insured for Rs.63,800/-, for all the years since 2004. As could be seen from the material on record, particularly the annexure-I, which is not disputed, up to 2009 sum assured, is the same amount. There cannot be any dispute that, value of the goods whatever may be the nature, from time to time will come down taking into consideration of depreciation. Deducting the depreciation, on the market value of the goods, premium will be fixed and that could be paid. But in the case on hand, no depreciation at all has been considered and further, for all these 6 years sum assured is same amount and further, the premium in fact must be reduced, but in the case on hand, up to the year 2008, it as been increased. This aspect prima-facie establish negligence on the part of the first opposite party resulting deficiency in service or unfair trade practice.<br /> <br /> 14. The main next grievance of the complainant is that, at no point of time the first opposite party made inspection of the hypothecated goods, but inspection charges have been claimed and deducted every year. Though the first opposite party tried to contend that, the hypothecated goods were inspected as per the terms and conditions of the agreement between the parties, to prove the actual inspection periodically no document or other evidence is placed on record. It is true, in the agreement between the parties, there is a condition or term that, the first opposite party has to right to inspect the hypothecated goods and in this regard, it can claim charges. But the first opposite party can claim charges provided, in fact, there is inspection. Without making actual inspection, claim of charges prima-facie is incorrect. The complainant had sought copy of the report from the first opposite party and the first opposite party has replied that, there is no such inspection report. Under the circumstances, one and the only inference that can be drawn is that, the first opposite party has not at all made inspection of the hypothecated goods. Hence, merely because there is a term and condition in the agreement to charge or claim the fees regarding inspection, without actual inspection, the claim made by the first opposite party in this regard is in correct. In this connection, we would like to note that, though claim of the complainant in respect of Insurance amount of laser printer is time barred, that aspect cannot be connected to the point considered above, regarding claim of inspection fees. Even otherwise, till account is closed, the first opposite party has charged, claimed and deducted the amount under this head. Certainly, it amounts to unfair trade practice, if not deficiency in service.<br /> <br /> 15. The complainant has sought refund of Insurance premium but considering the nature of the Insurance, there is no question of refund of the premium.<br /> <br /> 16. Accordingly, our finding on the point is partly in affirmative.<br /> <br /> 17. Point No. 2:- From the discussion made above and conclusion arrived at, we pass the following order.<br /> <br /> <br /> ORDER <br /> 1. The complaint is partly allowed<br /> 2. The first opposite party is hereby directed to refund a sum of Rs.1,175/- collected towards inspection charges, within a month from the date of the order, failing which the amount will carry interest at the rate of 10% p.a.<br /> 3. So also the first opposite party shall pay a compensation of Rs.2,000/- to the complainant towards mental agony and inconvenience caused.<br /> 4. Also the first opposite party to pay a sum of Rs.500/- cost of the proceedings.<br /> 5. The complaint as against the second and third opposite parties is dismissed.<br /> 6. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 3rd June 2010)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br />