| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA CC No.13 of 10-1-2019 Decided on : 13-07-2023 M/s Shree Ganpati Tea Co., Mandir Wall Gall, Near Post Office, Rampura Phul, Tehsil Phul, Distt. Bathinda through its Prop. Pooja Rani wife of Sh.Davinder Pal son of Sh.Manohar Lai, resident of Rampura Phul, Distt. Bathinda. - ........Complainant
Versus State Bank of India, Rampura Phul, distt. Bathinda, through its Branch Manager. SBI General Insurance ,Company Limited, Branch Office at SCF-135, First Floor, Guru Kanshi Marg, Opp. Three Cinemas, Bathinda, through its Branch Manager.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM:- Sh.Lalit Mohan Dogra, President Sh. Shivdev Singh, Member Present:- For the complainant : Sh. Ritesh Singla, Advocate. For opposite parties : Sh. Naveen Goyal for OP No.1. Sh. Vinod Garg, for OP No.2 ORDER Lalit Mohan Dogra, President The complainant M/s Shree Ganpati Tea Co., (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against State Bank of India and others (here-in-after referred to as opposite parties). Briefly, the facts of the complaint as pleaded by the complainant are that the complainant is a Proprietorship firm of Pooja Rani wife of Sh.Davinder Pal and the entire business is being conducted under the control and supervision of Pooja Rani and the said business is the only source of livelihood for the family of Pooja Rani. The complainant deals in the business of Tea leaves. The complainant is enjoying CC Limit Account No.55069851148 in the name of the firm with State Bank of Patiala, Rampura Phul (now merged with .the opposite party No.1) for a sum of Rs.5,00,000/- for the last many years and she has been enjoying the said CC Limit as per the requirement of the complainant and in order to avoid any type of loss on account of damage etc., the complainant used to purchase the insurance policy/business package of the opposite party no.2 by depositing the requisite premium and said policy was being renewed by the complainant through the opposite party No.1 for which the amount was being automatically deducted by the opposite party no.2 from the account of complainant with the opposite party no.1 and the opposite party no.1 automatically used to deduct the said amount of insurance premium to be deposited with the opposite party no.2. It is alleged that the last policy/business package availed by the complainant was valid w.e.f. 23.8.2017 to 21.8.2017 vide Policy No. 01202410-04 dated 19.8.2017 for a sum assured of Rs.8,00,000/- and 22.8.2018, the complainant alongwith Sh.Kulvir Parkash son of Sh.Moti Ram, resident of Rampura Phul visited the office of the opposite party no.1 and requested for the auto renewal of the aforesaid policy/package and the concerned Branch Manager of the opposite party no.1 assured the complainant that the policy/package of the complainant and the other firms who are availing CC Limits with the opposite party no.1, shall be auto renewed and the policy/package of the complainant shall also be got renewed for one year w.e.f. 23.8.2018 by deducting the amount of premium from the account of the complainant and the complainant bonafidely believed the opposite party no.1 and after about one week thereafter, the complainant again Visited the office of the opposite party no.1 and asked to provide the copy of the policy/package but the opposite party no.1 assured the complainant that the copy of the policy/package shall be sent to the complainant at the shop of the complainant by post and again the complainant bonafidely believed the assurance of the opposite party no.1 but the complainant never received the copy of the said policy and the opposite party no.1 also kept on putting the matter off under one or the other false pretext. It is further alleged that on 22/23.9.2018 there were heavy rains and the water accumulated in the premises of the complainant and the complainant suffered huge loss of approx. Rs.3,00,000/- due to the damage to the tea leaves lying stocked in the premises of the complainant because of the accumulation of the water in the premises of the complainant. On 24.9.2018, the complainant gave intimation to the opposite party no.1 about the said loss suffered by the complainant through a written letter as well as orally and the opposite party no.1 was requested to further lodge the insurance claim with the opposite party no.2 and also to appoint the Surveyor and loss assessor but the Branch Manager of the opposite party no.1 kept on putting the matter off under one or the other false pretext and lateron started demanding illegal gratification for the same i.e. 10% of the total amount of the amount of insurance claim in an illegal manner. The complainant alleged that the complainant also requested the concerned Branch Manager of the opposite party no.1 to provide the details of the insurance policy/ package so that the complainant may be able to lodge the claim with the opposite party no.2 directly but the opposite party no.1 failed to provide any copy of the insurance policy/business package to the complainant rather started proclaiming that the claim has already been forwarded/ lodged with the opposite party no.2 and when the complainant approached the opposite party no.2, the opposite party no.2 also failed to furnish any details to the complainant and also to appoint any surveyor or loss assessor and on this, the complainant wrote a letter dated 10.10.2018 to State Bank of India, The Mall, Patiala alongwith copy of the same to the opposite party no.1 but the opposite party no.1 gave a false and vague eply to the said letter vide letter dated 10.12.2018 and after going through the copies of the documents attached with the said reply, it revealed to the complainant that the insurance policy of the complainant was never got renewed by the opposite party no.1 rather the opposite party no.1 made false assurance to the complainant that the policy has been got renewed. After receiving the copy of the reply dated 10.12.2018, the complainant again approached the opposite party no .1 and enquired about the same but the concerned Branch Manager failed to give any satisfactory reply to the complainant and refused to provide any insurance claim to the complainant. On this backdrop of facts, the complainant has prayed for directions to opposite parties to pay the insurance claim of Rs.3 lakhs with interest @12% per annum w.e.f. 1.10.2018 till payment and to pay Rs.1 lakh as compensation and Rs.11,000/- as cost. Upon notice, opposite party No.1 appeared through counsel and contested the complaint by filing written reply raising legal objections that the complainant has got no cause of action or locus-standi to file the present complaint against the opposite party No.1. The complaint is not maintainable. As per the Letter of Arrangement executed by the complainant it is clearly mentioned and agreed that "All the assets charged to the bank should always be fully insured by the Borrower, against fire, lightning, riots, strikes, floods, cyclones, earthquakes, civil commotion and other natural calamities with a company approved by .the bank in the names of yourselves and bank and costs for full market value of bank's interest, whichever is higher. The policies / cover notes should be lodged with the bank. The policies should be kept alive (current) during the currency of the advance. In the event of non compliance, the bank reserves the right (but not be bound to exercise) to take the insurance cover as required by the bank by debit from your account machinery purchased out of the term loan, if any, to be insured for the full market value or original cost of the machinery, whichever is higher. Likewise policies all the renewal should also be done by the materials. As such there was no responsibility on the part of the bank to get the insurace policy on behalf of the borrower/applicant and in case the insurance is not done by the complainant, then the bank is not liable to compensate the complainant or to make the losses of the applicant good. As such the opposite party has no particulars of insurance rather it might, would be with the complainant, because it was the responsibility of complainant, not of the bank. It has been pleaded that there is no deficiency of service on the part of the opposite party No.1 and as such the complainant. is not entitled for any damages or claims or compensation etc. from the opposite party No.1. The complainant by his own act and conduct is estopped from filing this complaint. The complainant has concealed the true and material facts from this Hon'ble Court and she has not come with clean hands to seek the relief, and as such the complainant is not entitled for any relief. The complaint totally false one and has been filed by misusing the provisions of Consumer's Protection Act 1986 (as amended from time to time). The present complaint is of commercial nature and relates to the commercial matter and as such this Hon'ble Forum has got no jurisdiction to entertain and decide the present complaint. The dispute is between the complainant and the opposite party No.1 and as such the complaint as pertaining to the opposite party No.1 is liable to be dismissed. It has been pleaded that the proceeding under section 12 of the Consumer's Protection Act are of summary nature, but the matter in dispute is of civil nature and it requires examination and cross examination of the witnesses at length and also requires material evidence to be prpduced by the parties so the same cannot be decided in the summary proceedings under section 12 of C.P Act. On merits, opposite party No.1 has controverted all other averments and prayed for dismissal of complaint. Opposite party No.2 appeared through counsel and contested the complaint by filing written written reply raising legal objections that the intricate questions of law and facts are involved in the present complaint which requires voluminous documents and evidence for determination which is not possible in the summary procedure under the Act and appropriate remedy, if any, lies only in the Civil Court. The complainant has concealed material facts from this Forum as well as from the replying opposite party, therefore the complainant is not entitled to any relief. The complainant has concealed the fact that the complainant had purchased Business Package Policy No.01202410-04 dated 19.8.2017 with validity from 23.8.2017 to 22.8.2018, which expired on 23.8.2018 but the complainant has not got the same renewed and was lying lapsed and the date of alleged loss & claim of the complainant is not covered under the policy as the alleged loss occured on 24.9.2018 i.e. after expiry of policy. The complaint is not maintainable and the complainant has no cause of action and locus standi to file the present complaint. The complainant is not the consumer of the replying opposite party and the complaint is liable to be dismissed on this ground alone. On merits, it is pleaded that it is denied that the complainant along with Kulvir Prakash approached O.P. No.1 for auto renewal of the policy on 22.08.2018. it is also wrong to state that the concerned Branch Manager of O.P. No.1 assured the complainant that the policy shall be auto renewed for one year w.e.f. 23.08.2018 by deduction of the premium from the account of the complainant. The allegations are false and baseless. Even otherwise said allegations have nothing to do with the rights of the opposite party No.2 and are not binding upon replying opposite party as the replying opposite party can renew a policy only against request and on payment of premium in advance, whereas no such premium has been received. Hence, the date of alleged loss i.e. 22/23.09.2018 is not covered under the period of insurance policy. In support of his complaint, the complainant has tendered into evidence affidavit of Pooja Rani dated 10.1.2019 (Ex.C-1) and documents (Ex.C-2 to Ex.C-9). In order to rebut the evidence of complainant, the opposite party No.1 has tendered into evidence affidavit of Ashok Bansal, Chief Manager dated 6.3.2019 (Ex. OP-1/2) and document (Ex. OP-1/1). In order to rebut the evidence of complainant, the opposite party No.2 has tendered into evidence affidavit of Jitendra Dhabhai, Manager legal dated 12.3.2019 (Ex. OP-2/1) and document (Ex. OP-2/2). We have heard learned counsel for the complainant and gone through the record. Counsel for complainant has argued that the complainant is maintaining CC limit with opposite party No.1 for Rs.5 lakhs and he used to purchase the policy of insurance/business package of opposite party No.2 by depositing requisite premium and was thereafter being renewed by opposite party No.1 after automatically deducting amount from the account of the complainant. Last policy, copy of which is Ex.C2 was valid up to 22.8.2018 for sum assured of Rs.8 lakhs. It is further argued that on 23.8.2018, the complainant had approached opposite party No.1 for renewal of policy, but its manager promised that the policy has been renewed after deducting the amount from his account. On 22/23/11.2018, due to heavy rain, Tea-leave Stock worth Rs.3 lakhs were damaged. The complainant had given written and oral intimation to opposite party No.1, but later on, he came to know that the policy was not renewed by opposite party No.1 after 22.8.2018, which amounts to deficiency in services and as such, both opposite parties are liable to pay compensation of Rs.3 lakhs to the complainant alongwith interest. Learned counsel for opposite party No.1 has argued that as per letter of arrangement executed by the complainant. As per the Letter of Arrangement executed by the complainant it is clearly mentioned and agreed that "All the assets charged to the bank should always be fully insured by the Borrower, against fire, lightning, riots, strikes, floods, cyclones, earthquakes, civil commotion and other natural calamities with a company approved by .the bank in the names of yourselves, at your the bank and costs for full market value of bank's interest, whichever is higher. The policies / cover notes should be lodged with the bank. The policies should be kept alive (current) during the currency of the advance. In the event of non compliance, the bank reserves the right (but not be bound to exercise) to take the insurance cover as required by the bank by debit from your account machinery purchased out of the term loan, if any, to be insured for the full market value or original cost of the machinery, whichever is higher. Likewise policies renewal should also be done by the materials. Copy of letter of arrangement, which is signed by the complainant is Ex.OP1/1. As such, it is responsibility of borrower to get the insurance policy and as such, there is no deficiency in services on the part of bank and learned counsel for opposite party No.1 has prayed for dismissal of complaint. On the other hand, learned counsel for opposite party No.2 has argued that since the policy of insurance expired on 23.8.2018 and loss occurred on 24.9.2018 and as such, on the date of loss since there was no valid policy of insurance, as such, opposite party No.2 is not liable to pay any amount to the complainant. Counsel for opposite party No.2 has also relied upon judgment of Hon'ble Supreme Court in case Life Insurance Corporation of India Vs. Raja Vasireddy Komalavalli Kamba and Others, 1984 AIR (SC) 1014 and order of Hon'ble National Commission in case M/s Sri Manjunatha Spinning Mills Ltd. Vs. Oriental Insurance Co. Ltd. And Ors., 2020(4) CPR 10. We have given careful consideration to these submissions and gone through the case law cited by learned counsel for opposite party No.2. It is admitted fact that the complainant was having CC limit with opposite party No.1 and had obtained the policy of insurance which was renewed for the last time up to 22.8.2018 as per Ex.C2. It is further admitted fact that the policy of insurance was not renewed after 22.8.2018. To prove his case, the complainant has placed on record duly sworn affidavit, copy of policy of insurance, (Ex.C2) valid up to 22.8.2018, copy of letter, (Ex.C3) and other documents. On the other hand learned counsel for opposite party No.1 has mainly relied upon letter of arrangement dated 19.4.2018. As per Clause 6, which is reads as under:- “All the assets charged to the bank should always be fully insured by the Borrower, against fire, lightning, riots, strikes, floods, cyclones, earthquakes, civil commotion and other natural calamities with a company approved by .the bank in the names of yourselves, at your the bank and costs for full market value of bank's interest, whichever is higher. The policies / cover notes should be lodged with the bank. The policies should be kept alive (current) during the currency of the advance. In the event of non compliance, the bank reserves the right (but not be bound to exercise) to take the insurance cover as required by the bank by debit to your account.” We have gone through the record and rival contention of both the parties and this Commission is of the view that since the policy of insurance was not renewed after 22.8.2018 and as such, there was no liability of opposite party No.2 to pay any compensation to the complainant for the loss claim to be suffered by the complainant on 23.9.2018 when the policy of insurance had already elapsed. As far as, liability of opposite party No.1 is concerned. We have gone through the letter of arrangement and as per Clause No.6, bank was not bound to get the policy renewed, rather as per this Clause, it was duty of the complainant to get the policy of insurance renewed by depositing the requisite premium with opposite party No.2. The contention of counsel for complainant that earlier opposite party No.1 was deducting premium from the account of the complainant is also not acceptable. In the absence of any evidence in the shape of statement of account to prove this fact that on earlier occassions, the premium was auto deducted from the account of the complainant, the said plea is not acceptable. As such, from the above discussion and after going through the record and evidence and judgments referred by counsel for opposite party No.2, we do not find any merits in the present complaint. Accordingly, present complaint is ordered to be dismissed. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced : 13-07-2023 (Lalit Mohan Dogra) President (Shivdev Singh) Member
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