BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 20th April 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
ORDERS IN
C.C.No.410/2015
(Admitted on 2.12.2015)
Pushparaj Shetty,
Aged 56 years, Proprietor,
Dash Marketing Company,
III 1049/1, SBS Complex,
Near Shri Guru Raghavendra Mutt,
Kallare, Puttur, D.K.
……… Complainant
(Advocate for Complainant by Sri. SD)
VERSUS
Manager,
State Bank of India,
Puttur Centre Building,
Near Court Maidan,
Puttur, D.K.
…. Opposite Party
(Advocate for Opposite Party No.1. Sri.KRA)
ORDER DELIVERED BY HON’BLE MEMBER
SMT. LAVANYA M. RAI
- This complaint filed under section 12 of the Consumer Protection Act alleging deficiency in service against the opposite party claiming certain reliefs.
The brief facts of the case are as under:
The complainant is the OD account holder of Opposite Party as per Account No.32368595843 for the last 4 years and at present the OD limit is Rs.80,00,000/. For this OD account the complainant has Hypothecated stock in trade and immoveable property of 24 cents of land to Opposite Party. The Opposite Party has been securing the stock in trade by Burglar insurance policy through SBI General Insurance for last 4 years and the Opposite Party has been deducting the premium amount from the complainants account. When the matter stood thus on the night of 19.8.2015 the Cigarette stock was stolen from the Go-down of the complainant to the tune of Rs.16,24,827/. The stolen stock in trade was hypothecated to Opposite Party. Thereafter the complainant has informed Opposite Party by letter dated 22.8.2015 and 25.8.2015. Opposite Party has issued late reply dated 3.10.2015 stating that the policy was not renewed from 27.2.2015 and after receipt of above letters the Opposite Party has arranged for insurance of full value of stock and obtained insurance on 4.9.2015. For the last 4 years Opposite Party has been arranging the insurance cover by debitingthe premium amount to the complainant’s OD account. When that being the case the present policy cannot be renewed by the complainant on his own. Hence the complainant got issued regd lawyers notice dated 21.10.2015 to the Opposite Party and the Opposite Party bank gave false reply dated 28.10.2015.
It was the duty to renew the policy on 27.2.2015 by the Opposite Party further, the original policy was also with Opposite Party for their reference. The Opposite Party’s reply dated 3.10.2015 they have taken a contention that as per S 6 of our terms and condition the borrower should fully insure the assets charged to the Bank. Since the Opposite Party themselves took the responsibility to arrange the insurance cover to the stock in trade but not complied the same. Hence the above complaint filed by the complainant before this forum under section 12 of the C.P.Act 1986(here in after referred to as the Act) seeking direction from this Fora the Opposite Party to pay Rs.16,24,827/ with 12% interest from 19.8.2015 till payment and to pay Rs.1,00,000/ as compensation, to pay Rs.50,000/ as expenses and such other reliefs.
II. Version Notice served to the opposite parties and filed version stating that the complainant being an insured owes a moral and legal duty to remit/pay the premium regularly/annually. If the insured commits the default either negligently or wilfully he is the only one to be blamed for the consequences. The act of hypothecation effected by the debtor (petitioner herein this case) does not absolve him from protecting his properties. Just because of execution of hypothecation it does not mean that bank should manage his assets/properties. Insurance renewal letter dispatched to the bank ought not to be the excuse for the complaint for non payment of premium. Further the renewal intimation is not a condition precedent for payment of premium. The complainant had option to renew the policy of insurance. But he failed to exercise the option to renew the policy. He can’t blame any one else for the non renewal. The complainant under clause 6 of the agreement shall keep the insurance policy operational on payment of premium. When the complainant/insured does not opt no one else can be blamed for the alleged deficient service. Opposite Party further submitted that theft alleged is yet to be proved. No doubt an FIR is lodged against unnamed thief. The act of theft is not confirmed yet. Moreover the provision for security being deficient and incomplete/improper the complainant alone is responsible for the loss. The truthfulness on the part of the complainant is yet to be ascertained. The bonafides of the complainant is yet adjudicated. Even before that the complainant expects the Opposite Party to bear the loss and pay for the loss and prays for dismiss the complaint.
III. In support of the above complaint the complainant Mr. Pushparaj Shetty, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C11. On behalf of the opposite party A.R.Prakash, (RW1) Branch Manager of State Bank of India, of opposite party also filed affidavit evidence and answered the interrogatories served on him.
IV. In view of the above said facts, the points for arise for our consideration in the case are:
- Whether the Complainant proved that the Opposite Party committed deficiency in service?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
We have considered the arguments submitted by the complainant and Opposite Party and also considered the materials that was placed before the Fora and answered the points are as follows:
Point No. (i) : Affirmative
Point No. (ii) : Affirmative
Point No. (iii): As per the final order.
REASONS
V. POINTS No. (i) and (ii): In order to substantiate the case, complainant filed evidence by affidavit and produced documents Ex.C1 to C11 as listed in the annexure. It is the case of the complainant that, the complainant is the OD account holder of Opposite Party as per account no.32368595843 for the last 4 years and the OD limit is Rs.80,00,000/ for this OD account, the complainant has Hypothecated stock in trade and immoveable property of 24 cents of land to Opposite Party. The Opposite Party has been securing the stock in trade by Burglar insurance policy through SBI general Insurance for last 4 years as per Ex.C1 and the Opposite Party has been deducting the premium from complainant account as per Ex.C9. On 19.8.2015 the stock was stolen from the go down of the complainant for Rs.16,24,827/. Immediately the theft was reported to Puttur town P.S. as per Ex.C3. thereafter complainant informed to Opposite Party through letter as per Ex.C4 and Ex.C5 but Opposite Party replied as per Ex.C6, that the policy was not renewed from 27.2.2015. after receipt of the letters the Opposite Party arranged for insurance of full value of stock and obtained insurance on 4.9.2015. From the last 4 years Opposite Party has been arranging the insurance cover by debiting the premium amount to the complainant OD account, hence the present policy cannot be renewed by the complainant on his own. The Opposite Party aware that the policy was taken in the complainant name and it is clearly mentioned that the stock in trade is hypothecated with Opposite Party. On the other hand the Opposite Party stated that, being an insured, complainant owes a moral and legal duty to remit annually. The act of hypothecation effected by the debtor does not absolve him from protecting his properties just because of execution of hypothecation it does not mean that bank should manage his assets. The renewal intimation is not a condition precedent for payment of premium. The complainant under clause 6 of the Agreement shall keep the insurance policy operational on payment of premium. When the complainant not opt no one else can be blamed for the alleged deficiency in service and also the act of theft is not confirmed yet. But Opposite Party not produced any documents.
Now point for consideration is that, it is undisputed fact that the Opposite Party had taken policy to the complainants account from the year 2013.14 and 2014.15 and the premium was deducted from the account of the complainant as per Ex.C9. it is also undisputed fact that the theft in the go down of the complainant to the tune of Rs.16,24,827/ as per Ex.C2 and Ex.C3. In the year of 2015.16 the Opposite Party has not taken the policy and stating that being an insured complainant owes a moral and legal duty to remit annually. But herein, since from 4 years the Opposite Party renewed the policy without any representation from the complainant and at the time of theft it came to the knowledge of the complainant. Immediately complainant issued letter to the Opposite Party on 22.8.2015 and 25.8.2015 after that the Opposite Party renewed the policy which is admitted by the Opposite Party. Since from the year 2013.14 and 2014.15, the policy premium was deducted from the account of the complainant therefore it was not within the knowledge of the complainant. The contention of the Opposite Party that the complainant was arranging the policy is false and commits deficiency in service.
The reported decision of the Honble National Commission in 2015 I CPJ 240 NC reads thus: If bank was in no mood to furnish insurance amount, it should have notified the complainant about the same bank is terribly remiss in discharge of their duties In this the Honble National Commission has held that if the bank was in no mood to furnish insurance amount it should have notified the complainant and it is the primary responsibility of the bank for take the insurance. Further the contention of the Opposite Party that the theft alleged is yet to be proved but case in our hand is different from the case is yet to be adjudicate, hence defence taken by the Opposite Party is not benefited at this juncture. Argument of learned counsel for Opposite Party that as complainant has subsequently cleared the loan facility has no substance for the reason that liability to clear the loan or otherwise is not the ground for covering the goods under insurance policy. In view of the above, we are of the opinion that the Opposite Party is committed deficiency in service hence Opposite Party shall pay Rs.16,24,827/ to the complainant with 6% interest from the day theft occurred i.e on 19.8.2015 till the date of payment and also pay Rs. 5,000/ as cost of the litigation expenses. In the present case Opposite Party is the public sector therefore the interest paid itself as a compensation hence further compensation does not arise considering the above answer to point No. 1 and 2 in the affirmative.
In the result, accordingly we pass the following Order.
ORDER
The complaint is allowed. Opposite Party shall pay Rs.16,24,827/ with 6% interest from 19.8.2015 till the date of payment and also pay Rs. 5,000/ as cost of the litigation expenses. Payment shall be made within 30 days from the date of receipt of copy of this order.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 9 directly dictated by Member to the Stenographer typed by him, revised and pronounced in the open court on this the 20th April 2017)
MEMBER PRESIDENT
(LAVANYA M RAI) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Pushparaj Shetty,
Documents marked on behalf of the Complainant:
Ex.C1: 16.3.2015: Copy of the Letter of agreement.
Ex.C2: 20.8.2015: Copy of the police complaint with endorsement.
Ex.C3: 20.8.2015: copy of the FIR with stock list.
Ex.C4: 22.8.2015: letter addressed by the complainant to Opposite Party.
Ex.C5: 25.8.2015: Letter addressed by the complainant to Opposite Party.
Ex.C6: 3.10.2015: Reply of the Opposite Party.
Ex.C7: 6.3.2013: Insurance policy for 2013.14.
Ex.C8: 28.2.2014: Insurance policy for 2014.15.
Ex.C9: Copies of the statement of account showing the premium amount being debited to the complainant account.
Ex.C10: 21.10.2015: O/c of the regd lawyers notice.
Ex.C11: 28.10.2015: Reply of the Opposite Party.
Witnesses examined on behalf of the Opposite Party:
RW1: A.R.Prakash, Branch Manager of State Bank of India
Documents marked on behalf of the Opposite Party:
Nil
Dated: 20.4.2017 MEMBER
