Tripura

StateCommission

A/20/2015

The United Bank of India - Complainant(s)

Versus

Sri Shyamal Ghosh - Opp.Party(s)

Mr. A.Ray Barman, Smt. L.Sarkar

17 Nov 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

 

APPEAL CASE No.A/20/2015.

 

United Bank of India,

Represented by the Senior Manager

Tripura Regional Office,

Durga Bari Road, Agartala,

Dist.-West Tripura.

                  ….    ….    ….    ….    Appellant.

 

                   Vs

 

1. Sri Shyamal Ghosh,

S/O, Lt. Monoranjan Ghosh,

Kamalpur Town, P.S. Kamalpur,

Dist. Dhalai, Tripura.

 

2. The Manager,

For Bajaj Allianz General Insurance Co. Ltd.,

2B, 2^nd Floor, N.H. Centre Point,

Opp. Borra Service Station, G.S. Road,

Ulubari, Guwahati-781007.

               ….    ….    ….    ….    Respondents.

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

 

              MR.NARAYAN CH. SHARMA,

          MEMBER

            STATE COMMISSION.

               

 

For the Appellant              :      Mr. A. Roy Barman, Adv. & Smt. L. Sarkar, Adv.

          For the respondents                   :      Mr. P. Sahu, Adv. & Mr. K. De, Adv.

                                           

Date of Hearing                :     06.10.2015.

Date of delivery of Judgment:   17.11.2015

J U D G M E N T

 

S.Baidya,J,

            This appeal filed on 25.08.2015 by the appellant-United Bank of India represented by the Senior Manager, Tripura Regional Office under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment and order dated 23.04.2015 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), Dhalai district at Kamalpur, Tripura in case No.C.C-1/CC/KMP/2014 by which the complaint petition filed under Section 12 of the Consumer Protection Act, 1986 has been allowed awarding a compensation of Rs.50,000/- to the complainant which shall be payable by the insurance company (present respondent No.2) and the Bank (respondent No-1) jointly with a further direction to pay a litigation cost of Rs.5,000/- to the complainant payable by both the O.Ps(respondents) jointly.    

2. The case of the appellant as narrated in the memo of appeal, in brief, is that the complainant Shyamal Ghosh (respondent No.1) lodged the complaint before the District Forum impleading the United Bank of India, Kamalpur Branch as O.P. No.1 and Bajaj Allianz General Insurance Company Ltd. as O.P. No.2 claiming compensation for non-payment of benefit against his insurance policy dated 25.05.2012. It is alleged that the complainant is a businessman dealing with hardware and cement at Kamalpur Town and for the purpose of his business he availed Cash Credit Loan against his business from United Bank of India, Kamalpur Branch and the shop of the complainant was insured with the O.P. No.2 vide policy No.OG-13-2405-4001-00000641 and policy No.OG-13-2405-4010-00000317 dated 25.05.2012 for insurance of any loss or damage caused due to fire and burglary and the complainant paid Rs.1,124/- as premium against the said two policies.                                                  
3. It is also alleged that in the night of 01.05.2013 the shop of the complainant was damaged by storm and on the next date the complainant informed the insurance company and the bank regarding the damage of his shop and then the insurance company engaged a licensed surveyor Sri Pranay Goswami to assess the loss and thereafter, the insurance company vide letter dated 03.10.2013 informed the complainant that the policy does not cover the item cement and the policy was against fire and burglary incident and as such, the claim of the complainant was rejected.
4. It is also alleged that being aggrieved the complainant lodged the complaint petition claiming Rs.6,10,000/- as compensation before the Ld. District Forum. It is also alleged that both the O.Ps contested the complaint petition by filing separate written objection. It is also alleged by the O.P. No.1 stating, inter alia, that the complainant had no cause of action against the O.P. No.1 and the policy obtained by the complainant was against any incident caused by fire and burglary and any damage caused by storm was not covered by the said policy. It is also alleged that the policy was against the hardware items only, but the claim of the complainant was lodged due to damage of cement by the storm and as such, the claim of the complainant was rejected. It is also alleged that the dispute was between the complainant and the insurance company and as such, the complainant cannot be treated as a consumer of the appellant-bank.
5. It is also alleged that the Ld. District Forum considering the cases of the parties and evidences passed the impugned judgment on 23.04.2015 and being aggrieved thereby, the appellant-bank has preferred the instant appeal on the grounds that the Ld. Forum did not apply its mind properly and in most whimsical and arbitrary manner held the appellant-bank jointly responsible for deficiency in service, that the Ld. Forum failed to appreciate the fact that the insurance policy was a contract between the complainant and Bajaj Allianz General Insurance Co.Ltd., but the Ld. Forum without any basis held the appellant-bank responsible for deficiency in service, that the Ld. Forum failed to appreciate the fact that the contract executed between the complainant and the insurance company through the agent of the insurance company, but the Ld. Forum in most arbitrary manner directed the appellant-bank to pay compensation upto the extent of 50% which is apparently illegal and liable to be set aside and quashed, that the Ld. Forum failed to give any reason as to why and how United Bank of India was found deficient in providing service, that the complainant failed to state anything how the appellant-bank was deficient in service when the complainant himself obtained the insurance policy by filling up the proposal form and in the entire process of obtaining the insurance policy the appellant-bank was not in any way involved, but the Ld. Forum has made out a third case after the framing an issue whether the complainant was subjected to undue influence by the United Bank of India and thereafter, passed the impugned judgment which cannot be sustained in the eye of law and is liable to be set aside and hence, the instant appeal has been preferred.

         

Points for consideration

6.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in passing the impugned judgment allowing the complaint and (2) whether the judgment under challenge in this appeal should be set aside as prayed for.

     

                         Decision with Reasons

7.  Both the points are taken up together for the sake of convenience and brevity.
8. The learned counsel Mr. A.Roy Barman appearing for the appellant-United Bank of India, Kamalpur Branch (O.P. No.1 of the complainant case) submitted that admittedly, the appellant-O.P. No.1 granted a cash credit loan to the extent of Rs.7,50,000/- to the complainant-appellant in connection with his business. He also submitted that the bank being the loan granting authority would be interested to secure the business of the complainant under insurance coverage. He also submitted that the complainant filed the proposal form after duly filling up with the respondent No.2, Bajaj Allianz General Insurance Co. Ltd. for issuance of the fire and burglary insurance policies in favour of him for which he paid an amount of Rs.1124/- as premium for both the policies. He also submitted that the appellant-O.P. No.1 simply as an agent helped the complainant for securing both the policies from the respondent No.2. He also submitted that barring this, the appellant has had no role concerning the said two policies in favour of the complainant. He also submitted that there is also nothing on record to establish that the appellant-bank realized any service charge from the complainant for helping him to purchase the said fire and burglary insurance policies. He also submitted that in spite of that, the Ld. District Forum found the O.P. no.1-bank, the appellant herein, deficient in providing service to the complainant. He also submitted that this finding of the Ld. District Forum having no basis has got no legs to stand upon and as such the said finding of the Ld. District Forum making the bank liable for deficiency in service cannot be sustained in the eye of law and therefore, the impugned judgment is liable to be quashed on this ground so far it fastened the appellant-bank with liability of alleged deficiency in service.
9. Mr. Roy Barman also submitted that it is settled principle of law that a judicial or a quasi-judicial body cannot make out a third case in course of disposal of any proceeding, barring the cases made out by the parties to the case. He also submitted that the complainant in the complaint filed under Section 12 of the Consumer Protection Act, 1986 has made out no case of undue influence exerted upon him by either of the respondents in securing the above mentioned insurance policies. He also submitted that going beyond the cases of the parties, the Ld. District Forum has framed an issue of undue influence and also given a finding, accordingly, making the bank liable for deficiency in providing service to the complainant. He also submitted that the framing of an issue of undue influence and the finding of the Ld. District Forum in this regard being uncalled for and untenable in law has rendered the impugned judgment unsustainable in the eye of law so far it affects the appellant-O.P.No.1.
10. The learned counsel for the appellant also submitted referring to the proposal form for insurance policy that the complainant himself submitted the proposal form only covering plant and machinery, stock of iron grills and furniture, fixture, fittings, utensils and appliances used in business. He also submitted that the complainant by the said proposal form did not intend to cover any other item under the insurance coverage. He also submitted that the complainant has made out a case that in the midnight of 01.05.2013 complainant’s shop dealing with the business items was destroyed by storm. He also submitted that the fire and burglary insurances do not cover any damage by storm. He also submitted that the complainant claimed compensation on the ground that many bags of cement dealt with by the complainant in his shop were damaged by the said storm. He also submitted that complainant in the proposal form nowhere mentioned that he submitted the proposal form intending to cover the cement business also under the insurance policies. He also submitted that the stock of iron grills etc. are not destroyed by storm and the complainant also produced no document as to what sorts of furniture, fixture, fittings used in business of the complainant were damaged or destroyed, if at all, by the said storm.
11. The learned counsel Mr. Roy Barman also submitted that the bank was a mere agent and only helped the complainant to obtain the insurance policies and as such the bank cannot be fastened with any liability on the plea of alleged deficiency in service. He also submitted that the Ld. District Forum by the impugned judgment awarded a compensation of Rs.50,000/- and litigation cost of Rs.5000/- directing the appellant-bank and the respondent No.2 to pay the same jointly to the complainant. He also submitted that having no liability of the appellant-O.P. No.1, such direction of the Ld. District Forum given in the impugned judgment against the O.P. No.1, is not sustainable in law and it is liable to be set aside and the appeal is also liable to be allowed.
12. Mr. P. Sahu appearing for the respondent No.1-complainant submitted that the complainant produced a duplicate copy of licence No. 711/03 issued on 06.05.2005 showing that the complainant was authorised to carry on business of hardware with cement. He also submitted that the bank granted cash credit loan to the complainant considering hardware with cement business of the complainant. He also submitted that by the said storm many bags of cement of the complainant kept in the business premises were destroyed. He also submitted that the complainant’s business of hardware with cement following the said licence was secured under the coverage of fire and burglary insurances. He also submitted that the point No.9 of the proposal form makes it clear that the business of the complainant was covered if the damage was caused by storm also. He also submitted that in view of the above proposal made by the complainant and the acceptance thereof by the insurance company, the submission of the learned counsel for the appellant that the damage caused by storm does not cover by fire and burglary insurances is not correct.
13. Mr. Sahu also submitted that the complainant at the relevant time was dealing with cement also, but in the insurance policies of fire and burglary, the cement business was not given any insurance coverage. He also submitted that the purpose of submitting proposal for obtaining fire and burglary insurances was to secure all the business items of the complainant, but the O.P. No.2-Bajaj Allianz General Insurance Co. Ltd., the respondent No.2 herein, did not grant any insurance coverage concerning the cement business under the fire and burglary insurances. He also submitted that the appellant-bank acted as a corporate agent of the said insurance company, but the bank failed to give all the business items under the insurance coverage and here lies the deficiency in service on the part of the bank and the insurance company. He also submitted that the Ld. District forum rightly held that both the O.P.No.1, the appellant and respondent No.2 herein, are liable for deficiency in service.
14. Mr.Sahu also submitted that the insurance company engaged a licensed surveyor for assessing the damage caused to the complainant’s business by the said storm. He also submitted that in spite of seeing the damage of bags of cement and the building of the complainant, he failed to assess the quantum of damages. He also submitted that the insurance company, the respondent No.2 herein, was deficient in providing service by way of making payment of insurance benefit to the complainant and as such the Ld. District Forum rightly held that both the O.Ps were deficient in service. He also submitted that the Ld. District Forum considering all aspects of the case rightly awarded a compensation of Rs.50,000/- and litigation cost of Rs.5000/- to be paid by both the O.Ps jointly to the complainant, which being proper, legal and justified should be affirmed and the appeal should be dismissed.
15. The Ld. counsel Mr.K.de appearing for the respondent No.2, Bajaj Allianz General Insurance Co. Ltd. submitted that the insurance policies are the outcome of contract made between the insured and the insurer through the submission of a proposal form and the acceptance thereof. He also submitted that in such insurance of contract, barring the terms and conditions contained herein, there is no scope to add or omit any other condition. He also submitted that what was the intention of the proposer, the complainant herein, to cover the specific business items, that has been mentioned in the proposal form submitted after signing the same. He also submitted that the respondent No.2 insurance company considering the proposal form accepted it and granted fire and burglary insurances in favour of the complainant giving insurance coverage in respect of the business items mentioned in the proposal form. He also submitted that the complainant in the proposal form nowhere mentioned that his alleged business of cement would be given any insurance coverage and as such the damage of bags of cement caused by the said storm not being covered under the fire and burglary insurances does not come for consideration for granting any compensation to the complainant. The learned counsel Mr.De also submitted that in refusing to grant any compensation for the loss of alleged bags of cement by the said storm, the respondent No.2 committed no error. He also submitted that having no insurance coverage, the insurance company cannot be held liable to make any compensation for the alleged loss of cement. He also submitted that it is not the case of the complainant that plant and machineries were destroyed. The iron grills kept in the shop of the complainant are not destroyed by any storm. He also submitted that furniture, fixture and fittings used in the business of the complainant had the insurance coverage, but the complainant produced no iota of evidence to assess the such loss or damage, if at all. He also submitted referring to a decision of the Hon’ble Apex Court reported in (1996) 4 SCC 704 between Bharati Knitting Company Vs DHL as mentioned in the impugned judgment by the Ld. District Forum that the Consumer Forum cannot give damage by going beyond the contract. It can, however, award the compensation for deficiency in service.
16. The learned counsel for the respondent No.2 also submitted that having no insurance coverage the respondent No.2 rightly repudiated the claim, but the Ld. District Forum erroneously fastened the insurance company with liability on the plea of deficiency in service. He also submitted that such finding of the Ld. District Forum is unsustainable and as such it cannot be sustained in the eye of law and accordingly, the impugned judgment should be set aside.                
17. From the impugned judgment it transpires that the Ld. District Forum held both the opposite parties i.e. the appellant and the respondent No.2 herein, deficient in service and awarded compensation of Rs.50,000/- to the complainant which shall be payable by the insurance company and bank jointly. It further appears that the Ld. District Forum also awarded litigation cost of Rs.5,000/- to the complainant payable by both the opposite parties jointly. It also transpires that the Ld. District Forum did not use the word ‘severally’ in the operative portion of the impugned judgment. Although, no ratio for making payment has been made in the impugned judgment, but by implication it indicates that the payment of compensation and litigation cost are to be paid by the bank and the insurance company @50%. It also indicates that as per impugned judgment, the insurance company i.e. respondent No.2 herein, shall pay Rs.25,000/- as compensation and Rs.2,500/- as litigation cost to the complainant which tantamounts to 50% of the awarded sum.
18. The instant appeal has been preferred by the bank i.e. United Bank of India, Kamalpur Branch, the appellant herein, against the impugned judgment. No appeal against impugned judgment has been preferred either by the complainant i.e. respondent No.1 herein or by the O.P.2 insurance company i.e. Bajaj Allianz General Insurance Company Ltd, the respondent No.2 herein. It goes without saying that neither the complainant nor the insurance company has been aggrieved by and dissatisfied with the impugned judgment. It also goes to establish that the insurance company who has been held by the Ld. District Forum, deficient in service by the impugned judgment, has accepted by it as the said insurance company did not prefer any appeal challenging the legality, propriety and justifiability of the impugned judgment, but the United Bank of India, Kamalpur Branch being aggrieved by the impugned judgment has preferred this appeal assailing this finding of the Ld. District Forum.
19. Going through the impugned judgment we find that the Ld. District Forum has given a finding in respect of undue influence holding that the bank standing in a dominant position exerted undue influence upon the complainant, while the proposal form for securing fire and burglary insurances was submitted before the insurance company, the respondent No.2 herein. On perusal of the pleading of the complainant made out in the complaint, we find that the complainant nowhere used any word ‘undue influence’. The complainant in para-11 of the complaint only stated that the service provided by the O.P.-Nos.1 & 2 was insufficient and being a subscriber/customer the complainant has been deceived by them totally under the obligation of performing their duties for which the                  O.P.-Nos. 1 & 2 were negligent and liable vicariously as the O.P.-Nos. 1 & 2 were related to each other as Principal & Agent relationship. Barring the word ‘deceived’ as mentioned in para-11 of the complaint, the complainant nowhere stated in the complaint as to how and in what manner he has been deceived by the bank and the insurance company. The plea of undue influence and plea of deception are not synonymous. Each of these has got their separate entity and role in the field of law.
20. It transpires from the copy of the proposal form for insurance submitted by the complainant before the insurance company that plant & machinery, stock of iron grills & furniture, fixture, fittings, utensils and appliances used in business of the complainant were the insured items. It also transpires from the certified copy of the trade licence stood in the name of the complainant Shri Shyamal Ghosh that the complainant had business on hardware with cement at the relevant period, but the proposal form is totally silent regarding the cement as business item for insurance coverage. Admittedly, the business premises i.e. the building and cement had no insurance coverage at the relevant time i.e. on 01.05.2013 when the business items of the complainant were alleged to have been destroyed by storm. So, having no insurance coverage over cement and building, the complainant is not entitled to get any compensation from the insurance company for any damage caused to the cement and building.
21. It has been argued by the Ld. Counsel for the appellant that any damage caused by the storm is not covered by the insurance policies.  Going through the insurance policy we find that a fire insurance bearing No.0G-13-2405-4001-00000641 and burglary insurance bearing No.0G-13-2405-4010-00000317 were issued in favour of the complainant Shyamal Ghosh on 25.05.2012. It also transpires that the said insurance policies were issued on the basis of the proposal form submitted by the complainant. From the clause-9(a) of the proposal form, it appears that the business items as mentioned in the proposal form had basic insurance coverage if any damage was caused even by ‘storm’. There is nothing in the insurance policy that the insurance company did not accept the option exercised by the insured complainant. That being the position, the submission of the Ld. Counsel for the appellant that any damage caused to the business item of the complainant mentioned in the proposal form by storm was not covered by the insurance policies is found not acceptable. We are of the view that any damage caused to the business items of the complainant mentioned in the proposal form as well as in the insurance policies by storm was within the very insurance coverage at the relevant period commencing from 21.05.2012 to 20.05.2013.
22. There is no iota of evidence to establish if any damage was caused in respect of plant and machinery and also in respect of stock of iron grills. Usually it can be said that iron grills kept in the business premises of the complainant are not damaged by any storm. Surveyor Pranay Goswami who was engaged by the insurance company for assessing the damage, did not make any report if any damage was caused to the iron grills. From the survey report it also appears that the cement and building were damaged, but there is no whisper in the survey report as to whether any damage was caused to the furniture, fixture, fittings, utensils and appliances used in the business of the complainant. The non-making of any report regarding the causing of any damage to the stock of iron grills and furniture, fixture, fittings, utensils and appliances by the said storm is found a deficiency on the part of the surveyor engaged by the insurance company and as a result, the insurance company is vicariously responsible for the deficiency of its surveyor for non-making any report concerning damage to any of the insured items of the complainant.
23. Going through the impugned judgment we find that the Ld. District Forum treated the bank as the agent of the insurance company. The insurance policy speaks that the name of the agency is the United Bank of India. Admittedly, the bank granted a cash credit loan facility to the complainant up to the limit of Rs.7,50,000/-. Naturally, the bank would be interested to get the business items of the complainant insured as per his proposal form to secure the same under the insurance coverage.
24. The Ld. Counsel for the appellant submitted before us that the bank only helped the complainant to secure the fire and burglary insurances concerning the business items of the complainant as mentioned in the proposal form. He also submitted that what sorts of business items would be covered under the insurance coverage, that has been mentioned in the proposal form and in that circumstance, the bank could not be treated as an agent of the insurance company, but the agent of the complainant in submitting the proposal form before the insurance company. He also submitted that practically, there was no fault and/or any deficiency in service towards the complainant on the part of the bank, but the Ld. District Forum erroneously held the bank deficient in service towards the complainant.
25. It transpires from the copy of the proposal form that it was submitted before the insurance company on 21.05.2012 and the fire and burglary insurance policies were issued on 25.05.2012. Incident of storm took place on 01.05.2013. The complainant is found not an illiterate person. He was doing the business after securing a cash credit loan of a huge amount from the bank. It means that even after getting the insurance policies, the complainant got more than eleven months’ time to go through the same. Had there been any deficiency on the part of the bank in not mentioning the business items of the complainant for insurance coverage in the proposal form, the complainant would raise protest with the insurance company alleging that fact, but he did not do so. It goes to show that the complainant was well aware at the time of filing the proposal form before the insurance company as to what sorts of business items he wanted to get under the insurance coverage. This circumstance makes it abundantly clear that the bank helped the complainant in submitting the proposal form as desired by the complainant. This, on the other hand, establishes that practically, there was no negligence and deficiency on the part of the bank towards the complainant in helping him in the matter of submission of proposal form for insurance. So, the finding of the Ld. District Forum holding the bank deficient in service towards the complainant is found not acceptable.
26. It has been mentioned that the complainant has made out no case of undue influence in the complaint. But the Ld. District Forum in the impugned judgment held the bank liable for deficiency in service towards the complainant on the ground that the bank standing in a dominant position exerted undue influence upon the complainant. Having no case made out in the complaint regarding the exercise of undue influence on the part of the bank, the finding of the Ld. District Forum concerning the said undue influence is found nothing, but making out a third case by the Ld. Forum while passing the judgment, which is not permissible under the law of land. So, the finding of the Ld. District Forum concerning alleged undue influence, not being tenable in the eye of law, is found unacceptable.
27. Admittedly, the insurance company i.e. respondent No.2 repudiated the entire claim of the complainant. It is palpable that the furniture, fixture, fittings, utensils and appliances used in the business of the complainant were under the insurance coverage, but in spite of reporting about the damage of the business items of the complainant caused by the storm on 01.05.2013, the O.P.-respondent No.2 i.e. the insurance company miserably failed to assess any damage caused to any of the business items under insurance coverage of the complainant. Here lies the deficiency in service towards the complainant on the part of the O.P.-respondent No.2. So, the findings of the Ld. District Forum holding the insurance company deficient in service towards the complainant being found cogent and justifiable is accepted. Accordingly, we are of the view that the finding of the Ld. District Forum awarding compensation on the ground of deficiency in service and litigation cost against the insurance company i.e. O.P.-respondent No.2 is also found acceptable.
28. In view of the above, we are of the opinion that the awarding of compensation of Rs.25,000/- on the ground of deficiency in service and the litigation cost of Rs.2,500/- against the O.P. respondent No.2 i.e. insurance company @ ratio of 50% as mentioned earlier is found justifiable and we find nothing to interfere with the impugned judgment concerning the awarding of compensation and the litigation cost against the insurance company, but the findings of the Ld. District Forum awarding the compensation and the litigation cost against the bank i.e. United Bank of India, Kamalpur Branch (O.P.No.1), the appellant herein not being acceptable, according to law, is liable to be set-aside and the appeal is liable to be allowed and the impugned judgment is also liable to be modified, accordingly.
29. In the result, the appeal preferred by the United Bank of India, Kamalpur Branch is allowed. The awarding of compensation and litigation cost given in the impugned judgment dated 23.04.2015 passed by the Ld. District Forum in case No.1/CC/KMP/2014 against the bank, appellant herein, is hereby set-aside. The awarding of compensation of Rs.25,000/- and the litigation cost of Rs.2,500/- as appearing on calculation against the O.P.-respondent No.2 i.e. insurance company passed by the Ld. District Forum in the impugned judgment stands affirmed. The impugned judgment is, thus, modified, accordingly. There is no order as to costs.

 

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura