Haryana

Ambala

CC/17/2021

Sukhbir Singh - Complainant(s)

Versus

Punjab National Bank - Opp.Party(s)

A.K. Rathore

01 Jun 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	17 of 2021
Date of Institution	:	11.01.2021
Date of decision	:	01.06.2023

 

Sukhbir Singh son of Shri Phool Singh, resident of Village Sirasgarh, P.O. Dosarka, Tehsil Barara, Distt. Ambala.

          ……. Complainant

                                                Versus

1. Punjab National Bank Do-Sarka Branch, Tehsil Barara, Distt. Ambala through its Senior Manager,
2. Oriental Insurance Company Ltd. through its Authorized Signatory, Panchkula Road, Near Oriental Bank of India, Saha, Sub Tehsil Saha, Distt. Ambala

                                                                                   ….…. Opposite Parties.

Before:       Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri A.K.Rathore, Advocate, counsel for the complainant.

                    Shri Ashish Jain, Advocate, counsel for OP No.1.                                               Mrs. Suraj Rashmi Sharma, Advocate, counsel for OP No.2.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. OP No.2 to make the payment of Rs.6,00,000/- i.e. the claim amount of the policy no.261190/11/2019/264 alongwith interest @ 12% per annum till the date of final payment of the claim.
2. OP No.1 to recover the loan amount from the OP No.2 as the mushroom crop of the complainant was insured by OP No.2.
3. To pay compensation to the tune of Rs.50,000/- for harassment, mental pain, agony and financial loss due to deficiency in service.
4. To pay litigation expenses to the tune of Rs.20,000/- to the complainant
5. Grant any other relief which this Hon’ble Commission may deems fit.

 

2.         Brief facts of the case are that the complainant is a poor agriculturist. In the year 2014, he took loan from the OP No.1 for Mushroom farming.  OP No.1 had insured the crop of the complainant with OP No.2 vide policy No.261190/11/2019/264. OP No.1 has been regularly charging the premium of policy from the account of the complainant. Due to some un-avoidable circumstances, the complainant suffered a huge loss in his business and his entire mushroom cultivation was damaged. The complainant informed OP No.1 about the damage of his entire mushroom cultivation. It was promised by OP No.1 that it would provide subsidy to the complainant from the Govt. as per the scheme. It was also promised by OP No.1 that it would inform OP No.2 about the loss caused and in turn, OP No.2 would pay the insurance amount after settling his claim. Thereafter, the complainant approached the OPs several times, but neither OP No.2 settled the claim of the complainant nor OP No.1 ever bothered to give any satisfactory reply. Instead of making payment of insurance amount, OP No.1 started threatening that it would recover the loan amount by way of attachment and sale of the moveable and immovable properties of the complainant including his residential house. The complainant is legally entitled to take all the benefits from the OPs. Under compelling circumstances, the complainant through his counsel issued a legal notice dated 7.2.2020 upon the OPs, but they gave vague reply. In the reply, OP No.1 wrongly mentioned that no damage was caused to mushroom crop of the complainant, whereas in the reply of OP No.2, it has been wrongly mentioned that only building and shed was insured for Rs.6,00,000/- under the policy in question. When the loan was obtained for Mushroom farming from OP No.1, then why it had insured only building and shed of the complainant, which shows that the OPs in-connivance with each other            have caused loss to the complainant. Due to the act and conduct of the OPs, the complainant has suffered a great mental pain, agony and harassment. Despite making number of requests in the matter, the OPs failed to redress the grievance of the complainant.  Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version and raised preliminary objections with regard to maintainability, not come with clean hands and suppressed true and material facts and not locus standi etc. On merits, it has been stated that the complainant availed Cash Credit Limit amounting to Rs.5,00,000/- for Mushroom farming on interest @ 12.50% p.a. and executed the security documents in consideration thereto on 27.08.2014 and also mortgaged the property detailed in sale deed No.376 dated 16.06.2014 in consideration of the loan amount by depositing the original sale deed and creating Equitable Mortgage thereon. Thereafter, the complainant availed a sum of Rs.4,50,000/- as Term Loan and executed the security documents on 27.08.2015 in consideration thereto, in favour of OP No.1 and thereafter again the complainant got the Cash Credit Limit enhanced from Rs.5,00,000/- to Rs.8,00,000/- by availing an additional amount of Rs.3,00,000/- as Cash Credit and executed the security documents in consideration thereto on 13.07.2016 and further extended the charge for the loan amounts referred to above on the property already mortgaged. No intimation regarding the damage of crop was ever given by the complainant, either to OP No.1 or OP No.2, as no such damage was ever caused to the business of the complainant. The subsidy was to be provided by the Government as per terms and conditions, prescribed in the circular, policy and practice of bank and the rules and instructions issued by the State as well as Central Government, in respect thereto, which were never complied with by the complainant. The complainant intentionally and deliberately, failed to deposit the amount due and outstanding in both the loan accounts, which loan accounts were classified as NPA and complaint dated 16.11.2018 under section 13 (2) of the SARFAESI Act was served on the complainant to pay the amount due and outstanding, but he failed to comply with the contents of the said complaint. Thereafter, notice dated 17.01.2019 under section 13 (4) of SARFAESI Act was served on the complainant and legal process is being adopted by taking due legal recourse under the SARFAESI Act to recover the NPA amount. Thereafter legal recall notice dated 18.12.2019 was also served on the complainant, to make the payment of Rs.17,02,813/- and the interest accrued thereon at the agreed rate, due and outstanding in the both accounts. The said notice was received by the complainant, but was not replied. The complainant submitted application dated 31.12.2019, wherein he admitted regarding availing of loan and that the property aforesaid stood mortgaged, as referred to above and requested for settlement of the account under one time settlement scheme. He deposited a sum of Rs.2,00,000/- and further prayed for depositing a sum of Rs.5,00,000/- for which OTS proposal, was not accepted by the competent authority, as the amount offered was too meager and accordingly the complainant was informed and received the said letter issued by OP No.1 on 13.01.2020. Thereafter the complainant also submitted letter dated 28.01.2020 and has not deposited the amount of Rs.17,02,813/- and the interest accrued thereon at the agreed rate, as demanded in notice dated 18.12.2019, intentionally and deliberately. The complainant, to avoid the payment of loan amount has pleaded false and incorrect facts, in the present complaint. Rest of the averments of the complainants were denied by the OPs and prayed for dismissal of the present complaint with costs.
4.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections with regard to not come with clean hands and suppressed the true and material facts and maintainability etc. On merits, it has been stated that the mushroom crop of the complainant was never insured with OP No.2. Vide Policy no 261190/11/2019/264, only the building and shed of the complainant was insured. OP No.2 has always tendered due and satisfactory replies and duly intimated to the complainant that the Insurance Policy taken by him only covered the building and shed and does not cover the mushroom farming of the complainant. OP No.2 is not liable to pay any claim to the complainant in respect of the mushroom farming. Rest of the averments of the complainants were denied by OP No.2 and prayed for dismissal of the present complaint with costs.
5.           Learned counsel for the complainant tendered affidavit of complainant, as Annexure CW1/A alongwith documents as Annexure C-1 to C-4 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OP No.1 tendered affidavit of Sourabh, Branch Manager, Punjab National Bank, Branch Dosarka as Annexure OP-1/A alongwith documents as Annexure OP-1 to OP-7 and closed evidence on behalf of the OP No.1. Learned counsel for OP No.2 tendered affidavit of Renu Dhingra, Divisional Manager, Divisional Office, Oriental Insurance Company, Ambala Cantt. as Annexure OP-2/A alongwith documents as Annexure OP-2/B and closed the evidence on behalf of the OP No.2.
6.           We have heard the learned counsel for parties and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that by not making payment of claim amount/compensation towards the mushroom crops which suffered damage, despite the fact that the complainant had taken insurance cover for the same, the OPs are deficient in providing service.
8.           On the other hand, learned counsel for OP No.1 while reiterating the contents of written reply aforesaid, submitted that the complainant has filed this frivolous complaint only with a view to escape from his liability accrued under SARFASI Act, as he had failed to deposit the amount due and outstanding against the loans obtained by him from OP No.1.  He further submitted that the complainant has intentionally and deliberately, to avoid the payment of loan amounts, has filed the present complaint.
9.           Learned counsel for OP No.2 submitted that since under the insurance policy no 261190/11/2019/264 reliance whereupon has been placed by the complainant, the mushroom crops of the complainant were never insured with OP No.2 but only the building and shed of the complainant was insured, as such, he is not entitled to get any claim amount, if any alleged damage has been caused to his mushroom crop/farming.
10.           The  moot question which falls for consideration in the present case is, whether the complainant is entitled for any compensation on account of alleged damage of his mushroom crop or not? In the first instance, it may be stated here that the complainant has not placed on record even an iota of evidence to prove that his mushroom crop was ever damaged, as claimed by him. Be that as it may, even if for the sake of arguments, though not proved, it is assumed that the crop of the complainant was damaged, even then he is not entitled to get any claim amount under the insurance policy in question, Annexure OP-2/B, simply because of the reason that perusal of contents of the said insurance policy reveals that mushroom crop of the complainant was never insured with OP No.2 but only the building and shed of the complainant was insured as it has been clearly written therein as “Nature of Stock-Building and SHED” and Cover Name-STFI Cover, Fire Basic Cover, Earth Quake Cover”.   No evidence has also been placed on record by the complainant to the effect that his mushroom crop/farming was also covered under any insurance policy.  It is therefore held that since the policy in question covered only the building and shed of the complainant and not the mushroom crop/farming, as such, he is not entitled to get any claim amount, for any alleged damage caused thereto (mushroom crop/farming), because the insurance policy between the insurer and the insured represents a contract between the parties and the insured cannot claim anything more than what is covered by the insurance policy. Our this view is supported by the ratio of law laid down by the Hon’ble Supreme Court of India in Oriental Insurance Co. Ltd Vs Sony Cherian (II 1999 CPJ 13 SC) wherein it was held that- ― “..The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein…”.
11.           In view of peculiar facts and circumstances of this case, it is held that because the complainant has failed to prove his case, therefore, no relief can be given to him. Resultantly, this complaint stands dismissed with no order as to cost. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

  Announced:- 01.06.2023.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President