Haryana

StateCommission

A/669/2016

ORIENTAL BANK OF COMMERCE - Complainant(s)

Versus

S.S.PACKERS - Opp.Party(s)

D.K.SOOD

29 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,PANCHKULA

                                                 

First Appeal No.669 of 2016

Date of Institution:06.07.2016 and 20.07.2016

                                                          Date of Decision: 29.05.2017

 

1.      Chief Manager, Oriental Bank of Commerce, Harsha Bhawan, E Block, Cannaught Place, New Delhi.

2.      Deputy General Manager, Oriental Bank of Commerce, Regional Office, Rohtak, 97, Sonepat Road,Rohtak-124001.

3.      Chief Manager, Oriental Bank of Commerce, Branch Gohana, District Sonepat.

     …..Appellants

                                                Versus

 

1. M/s S.S.Packers, opposite  New Sabji Mandi Gohana, Tehsil Gohana, District Sonepat, through its Proprietor Sh.Sultan Singh.
2. Chairman-Cum-Managing Director, Oriental Insurance Company Limited, A-25/27, Asif Ali road, New Delhi-110002.

3.      Chief Regional Manager, Oriental Insurance Company Limited, LIC Building, 2^nd Floor, Jagadhari Road, Ambala Cantt-133001.

3. Branch Manager. Oriental Insurance Company Limited, Branch Office, 1^st Floor, Rohtak Road, Gohana, District Sonepat, Haryana.

         …..Respondents

 

CORAM:   Mr. R.K.Bishnoi, Judicial Member.
                   Mrs. Urvashi Agnihotri, Member.

 

Present:-    Mr.D.K.Sood, Advocate for the Appellants.

                   Mr.I.S.Sehrawat, Advocate for the respondent No.1.

                   Mr. D.C.Kumar, Advocate for respondent Nos.2 to 4.

 

                                      O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER:

 

As per complainant for carrying business it was availing services of Oriental Bank of Commerce, Gohana. Oriental Bank of Commerce was having tie up with oriental Insurance Company Limited and for the year 2014-2015 also O.P.No.6  i.e.  Chief Manager, Oriental Bank of Commerce, Branch Gohana, Distt. Sonepat deducted the premium from it’s account for obtaining insurance policy. On 23.10.2014 fire erupted in it’s premises due to which loss to the tune of Rs.30,05,000/- was caused. As it was insured by Oriental insurance company, so the opposite parties (O.Ps.) were liable to reimburse the loss. So it is entitled for compensation from them as detailed below:-

“-To refund/reimburse the claim of stock amounting Rs.7,50,000/- to my client in view of the insured with respondent Nos.1 to 3 insurance company as per the policy referred to the above with interest at the rate of 18 per cent per annum till its realization.

To pay a compensation of Rs.50,000/- for rendering deficient services for not releasing the claimed amount so far and causing humiliation, torture, mental, monetary, agony, suffering pains etc.

                   Cost of the proceedings.”

2.       O.P.Nos.1 to 3 filed joint reply controverting his averments and alleged that insurance policy was valid upto 09.10.2014 and thereafter it was not got renewed by complainant or O.P.Nos.4 to 6 because no premium was paid. There was no tie up in between them and O.P. Nos.4 to 6. If any premium was deducted from the account of complainant that was not deposited with them. So they were not liable to pay any compensation.  Objections about maintainability of complaint, locus standi, estoppel, etc. were also raised and requested to dismiss complaint.

3.      O.P. Nos.4 to 6 filed joint reply wherein it was alleged that complainant executed hypothecation agreement in between them and relevant clause of the same was as under:-

“That the hypothecated assets including all goods/stock, raw materials, semi-finished and finished goods etc, plant and machinery shall be insured comprehensively including fire, burglary, war, riots, civil risks, natural calamities etc. particularly those risk which cannot be envisaged normally but is or is likely to be in the knowledge of the borrower and the policies shall be taken out in the name of the bank or in the joint names of the bank and the Borrower, by the borrower with the bank clause with all rights and benefits of the policy and that all policies along with premium receipts on such insurance shall be delivered to the Bank, in case the borrower fails to insure or to deliver the policies and premium receipts as aforesaid, the bank shall be at liberty and have the option, but not bound to effect such insurance including renewals from time to time of the same, at the risk, responsibility and the cost of the Borrower in its absolute and unfettered discretion as the sole judge, provided, that in the event of rejection of any claim against such insurance wholly or partly for the omission/deficiency of any type whatsoever, to insure any risk the Bank shall not be held responsible as insurance, including its renewals from time to time hypothecated stocks/goods, raw materials, semi finished and finished goods etc. is the responsibility of the Borrower and the entire liability of the Borrower to the Bank shall continue notwithstanding such rejection of the claim as aforesaid and or any such omission to insure or deficiency of insurance and the bank shall not be held liable and responsible for such act of omission to insure or deficiency of insurance as aforesaid. The Borrower shall keep the Bank fully indemnified in this respect. All such expenses, costs and incidental incurred by the Bank shall be debited to the Borrower’s account and shall be subject to interest as applicable. Further that all the sums received under any such insurance as aforesaid shall be received by the Bank and applied in or towards the liquidation of the balance due to Bank for the time being due and in the event of there being a surplus the Bank shall be entitled to appropriate such claim under the policy with in the prescribed time or for any reason whatsoever. The Bank shall not incur any liability to the Borrower for not bringing any suit for recovery of insurance money or allowing such suit to be time barred. In case of any dispute arising with the insurance company, the bank shall have the absolute right to adjust, settle, compromise the same without reference to or consent of the Borrower and same shall be valid and binding on the Borrower, but shall not impair the right of the Bank to otherwise recover its sum due/ debt/outstanding amount from the Borrower. It is further  agreed and declared that if the insurance policy is taken by the Borrower in his own name and assigned by him in favour of Bank, the Bank shall in addition to the rights and remedies provided in the Bank’s favour as mentioned above, be entitled to realize the police money from the insurance company.”

Complainant did not suffer loss to the tune of Rs.30,05,000/-.  As per their knowledge this unit was insured upto 08.10.2014, thereafter it was duty of complainant to get insurance policy renewed by paying premium. Complainant never requested them to deposit premium and debit from his account. They were not sister concern of Oriental Insurance Company. Other averments were also denied and requested to dismiss the complaint.

4.      After hearing both the parties, learned District Consumer Disputes Redressal Forum,  Sonepat (In short “District Forum”) allowed the complaint vide impugned order dated  06.06.2016  and directed as under:-

So, in our view, the complainant is entitled to get the amount of Rs.3,30,000/- from the respondents NO.4 to 6. Thus, we hereby direct the respondents No.4 to 6 to make the payment of Rs.3,30,000/- (Rs.Three lacs thirty thousand) to the complainant within a period of 60 days from the date of passing of this order, failing which, the above said amount shall fetch interest @ 09% per  annum from the date of passing of this order till its realization.”

5.      Feeling aggrieved therefrom O.P.Nos.4 to 6 have preferred this appeal.

6.      Arguments heard. File perused.

7.      Learned counsel for appellants/O.P.Nos.4 to 6 vehemently argued that  as per terms and conditions of agreement Ex.R-4/A executed in between them and complainant, it was duty of complainant to get insurance policy renewed.  If bank has not got the policy renewed it is not liable to pay any compensation as opined by Hon’ble Supreme Court in Central Bank of India Vs. Jagbir Singh  2015 (2) Apex Court judgments (SC) 322 and HDFC Bank Ltd. Vs. Kumari Reshma and others 2015 (1) Apex Court Judgments (SC) 72.

8.      There is no doubt as far as opinion of Hon’ble Supreme Court in aforesaid case laws is concerned, but, situation in the present case is altogether different. From the perusal of copy of statement of account Ex.C-16, it is clear that O.P.Nos.4 to 6/appellants debited insurance premium from the account of complainant. As per entry dated 22.10.2014 Rs.3856/- were to be deposited with insurance company as premium for insurance, but, this premium was not deposited with insurance company. In this way there was lapse on the part of O.P.Nos.4 to 6. Had they not debited premium from his account then it could have been alleged by them that complainant was responsible for getting the insurance policy renewed, but, when the premium was deducted, onus shifted upon the bank to get the policy renewed.  In this way there is lapse on the part of the bank and O.P. Nos.4 to 6 are liable to pay the compensation as directed by learned
District Forum. These views are also fortified by the opinion of Tamil Nadu State Commission, Chennai in Manager, Tamilnadu Mercantile Bank Ltd. Vs.A.X. Beski & anr. III 2003) CPJ 145, so arguments are of no avail.

9.      Findings of learned District Forum are well reasoned based on law and facts and cannot  be disturbed. Resultantly appeal fails and the same is hereby dismissed.

10.    The statutory amount of Rs.25,000/- deposited at the time of filing of the present appeal be refunded to the appellants against proper receipt and due verification.

11.    The opposite parties-appellants are directed to fix the responsibility to the concerned official, who was responsible for delay and loss suffered by department be recovered from the concerned employee as per opinion of Hon’ble Supreme Court expressed in  Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 and Lucknow Development Authority V. M.K.Gupta, AIR 1994 SC 787. Hon’ble Supreme Court has observed  in Lucknow Development Authority V. M.K.Gupta (Supra) as under:-

“When the Court directs payment of damages or compensation against the State the ultimate sufferer is the common man.  It is the tax payer’s money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law.  It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund ‘immediately’ but to recover the same from those who are found responsible for such unpardonable behavior by dividing it proportionately where there are more than one functionaries.”

May 29th, 2017		Mrs.Urvashi Agnihotri, Member, Addl.Bench		R.K.Bishnoi, Judicial Member Addl.Bench

S.K.