DATE OF DISPOSAL: 02.12.2024
PER: SRI SATISH KUMAR PANIGRAHI, PRESIDENT
The fact of the case in brief is that the complainant has filed this Consumer complaint Under Section 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the Opposite Parties (in short O.Ps.) for redressal of his grievance before this Commission.
2. The complainant has passed Diploma in Electrical Engineering and started one rice mill in the name and style of M/s Radha Krishna Rice Mill at Khamar (Patrapur) in his own village for the purpose livelihood by self employment which was his only source of income. The aforesaid rice mill started functioning from the month of October 1992 and was running smoothly. The rice mill was insured with SBI General Insurance Company ltd. In policy No.0000000010629198 under SME PACKAGE INSURANCE policy the customer ID was allotted to the complainant bearing No. 0000000015595135. The period of insurance was from 16.11.2018 to 15.11.2019(midnight) as per said policy and the policy was in respect of machineries and building damage. The complainant had deposited Rs.8,879.00 only towards final premium. Against the aforesaid policy the sum insured is as in hereunder:
(i)Fire and Allied perils insurance
Building including plinth Rs.1,90,000.00
And foundation contents. Rs.2,40,000.00
Rs.4,30,000.00
There was deposits of Rs.5,085.00 only against stock damage in policy No. 0000000011048910 and the policy was valid from 15.12.2018 to 14.12.2019 (midnight) on the total sum insured was Rs.3,00,000/- only. While the matter stood thus there was fire due to short circuit on 05.01.2019 resulting damage of stock, machinery and building. The loss arising out of the said occurrence is as in hereunder:
- Damaged stocks. Rs.10,42,230/-
- Damages of machinery Rs. 5,00,512/-
The officer-in-charge of Fire Station, Dharakote, Ganjam who attended the incident submitted the report for loss/damages of Rs.15,00,000/- on 05.01.2019. Being informed, the insurance surveyor and loss assessor sent a letter on 09.02.2019 asking to submits the required documents to settle the claim. The complainant submitted petition dated 02.10.2019 to the O.P.No.2 to settle the insurance claim and sent one reminder on 29.02.2020 to settle the fir claim giving the details therein. The complainant regularly approached the O.P.No.1 to settle the claim but all his efforts are in vain and the claim has not been settled as yet. The cause of action arises on 05.01.2019 and surveyor and loss assessor sent the letter on 09.02.2019, the complainant submitted its petition on 29.02.2020. Hence the complaint is within time and within the territorial jurisdiction of this Honble Commission. Due to non settlement of the insurance claim in time, the complainant has suffered harassment and mental agony for which he is entitled for exemplary compensation. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to pay Rs.15,00,000/- only towards stock, machinery and building damage as per the conditions of policy with interest, compensation of Rs.50,000/- and litigation costs of Rs.15,000/- in the best interest of justice.
3. The Commission admitted the case and issued notice to the Opposite Parties.
4. The O.P.No.3 neither appeared nor filed any written version. Hence he is declared exparte on dated ………..
4. The O.P.No.1 & 2 filed written version through their advocate. It is stated that the averments made in the complaint are not all true and those are not specifically admitted herein are deemed to have been denied and the complainant is put to strict proof of the same. The present claim is not maintainable on the ground of jurisdiction. The complainant is the proprietor of M/s Radhakrishna Rice Mill constructed in the year 1993 (25 years old building) and the claim made by the complainant in the complaint is that on 05.01.2019 early morning the fire took place due to electric short circuit in the Rice Mill room-cum-Godown containing roof of CGI sheet over wooden beams. Soon after the intimation of the above accident, the O.Ps have deputed one IRDA licensed surveyor for verification and loss assessment of loss. The surveyor visited the spot, conducted investigation, assessed the loss and submitted the report on 22.02.2019, and soon after receipt of the surveyors report the O.Ps issued e-mail letter on 04.03.2019, 13.03.2019 and 27.03.2019 as well as telephonic reminders for submission of documents for the purpose of the claim approval and for non submission of documents. Inspite of e-mails, telephonic reminders, the O.P. have issued a final reminder letter on 27.08.2019 asking for the documents, and finally for non submission of the documents from the side of the complainant, the O.Ps constrained to repudiate the claim as No claim. Hence the present claim made under the consumer protection Act is not maintainable as there is no slighted deficiency of service on the part of the O.Ps and hence the present claim made by the complainant is not maintainable and the same is liable to be dismissed. For the purpose of the present litigation, a cause of action was attempted to invent by filling the present complaint, which did not possess any merit. Hence the O.P.No.1 & 2 prayed to dismiss the case.
5. The O.P.No.3 filed written version. It is stated that complaint is not maintainable under law. The allegations made in the complaint petition are untrue and the complainant is put to strict proof of such of the same. The complainant has filed the complaint against SBI General insurance relating to an insurance claim. The O.P.No.3 i.e. State Bank of India Aska Branch is not a necessary party to the dispute. The O.P. Insurance Company, i.e. SBI General insurance Company Limited and O.P. Bank, i.e. State Bank of India, are two separate legal entities having separate corporate deification numbers (CIN) and doing separate businesses. This O.P. has nothing to say on the claim made by the complainant against the O.P.No.1 & 2. No claim or relief has been sought for against this answering O.P. This O.P. has been arrayed as a party with oblique motives. The complainant had availed cash credit loan from SBI Aska Branch for the Rice Mill business, run under the name and style of M/s Radha Krushna Rice Mill, vide loan Account No. 34700657377 on 13.02.2015. Due to non-payment of the loan dues by the complainant, the loan account became irregular and declared as Non-performing Account (NPA) on 28.06.2018. The loan account was transferred to Stressed Assets Recovery Branch, Bhubaneswar (SARB in short) for recovery of the loan account, SARB is authorized to recover the dues by initiating action under SARFAESI Act. The SARB, Bhubaneswar initiate d action under the SARFAESI Act, 2002 against the complainant for recovery of the Bank dues amounting to Rs.51,84,253.50 plus accrued interest. The complainant did not take any steps for repayment of the outstanding dues to the Bank. Complainant with false representation made SBI Aska branch as a party to this complaint case and obtained a stay order on 23.12.2022 with regard to SARFAESI actions initiated by the SARB. This Commission has got no jurisdiction to interfere with the recovery process of SARB Bhubaneswar. The complainant should have approached the appropriate Forum (i.e. DRT, Cuttack) under section 17 of the SARFAESI Act, against any action of the O.P. Bank under the SARFAESI Act. The stay order granted by this Honble Commission on 23.12.2022 against the secured creditor is bad under law. Hence the O.P.No.3 prayed to dismiss the complaint in the ends of justice.
6. On the date of hearing, the Ld. Counsels for both the parties were present and submitted their argument. The Commission heard at length on the point of issues from the parties and minutely verified the complaint, written versions, evidence on affidavits, written arguments and documents available in the case record.
On analyzing the evidences and documents adduced by both the parties, it is revealed that, the complainant has claimed the insurance for damages of stock, machinery and building due to cause of Fire on 05.01.2019. On the date of event, the insurances were in force and the total insured amount is Rs.7,30,000/- but the complainant claimed is more than the total insured amount. The OIC, Fire Station, Dharakote has issued a report for Loss/Damages of the properties tentatively of Rs.15,00,000/- which was submitted to the Op.Party Nos. 1 & 2. The complainant has failed to comply the relevant documents for compliance of the settlement of the fire insurance claim with the opposite party nos. 1 & 2 in accordance to Annexure 8 and claimed to settle it under Indemnity basis. Accordingly, the Opposite Party no.1 & 2 repudiated the claim denying settling the claim under Indemnity basis as no liability triggering under the policies against subject claims and treated it as No Claim. However, the opposite party nos. 1 & 2 have conducted a survey through IRDA Licensed surveyor for verification and loss assessment of the said event. Accordingly, the concerned surveyor submitted a Survey & Assessment Report of the Policy No.:0000000010629198 on 22.02.2019 / Ref.No.: SKD/SBIGICL/F/18-19/379 wherein the surveyor reported that, the loss has arisen proximately caused by the insured peril and none of the exclusions under the policy has caused the loss. The net liability for Rs.2,95,008/- is payable as per terms and conditions of the policy. The insured and risk premises was established in the year 1993 and renovated in the year 2015 and the policy was taken for the year 2018-2019. The Complainant could not prove that he is eligible under the Annexure 8 i.e., settlement of insurance claim on Indemnity Basis also. The complainant also failed to prove the report of the Fire Station vide Annexure -5 as Final. Hence, the OP Nos. 1 & 2 have discredit the complaint of the complainant as there is no deficiency of service on the part of the opposite parties.
Further, the complainant impleaded the op no.3 in the case later not to e-auction the immovable properties of the complainant while matter is sub-judice in the Consumer Commission. Moreover, it is manifest from the case record that, the complainant has no grievance against the Opposite Party no.3 except stop of the e-auction. It is revealed from the submission of the opposite party no.3 that, the complainant availed Cash Credit Loan in favour of the M/s Radha Krushna Rice Mill vide Loan A/c No.:34700657377 which was declared as Non-Performing Assets on 28.06.2018 for non-payment of the loan dues. Accordingly, the opposite party no.3 initiated proceedings under the SARFAESI Act, 2002. The Opposite Party no.3 relied upon the recent Order of the Honble High Court of Orissa that, Consumer Commission has no jurisdiction to entertain matters coming under purview of SARFAESI Act. Accordingly, the OP no.3 prayed to vacate the stay proceedings order dated:23.12.2022 in the case. On perusal of the case record, it is revealed that, the complainant has approached the Commission not in clean hand and suppressed the material fact in the complaint against the opposite party no.3. On considering the above discussions and catena of decisions of Honble Apex Court of India and High Court of Orissa, the Commission has no jurisdiction to deal with the cases under SARFAESI Act, 2002. There is contributory negligence on the part of the complainant. The complainant measurably failed to establish any deficiency in services on the part of the Opposite Parties. Hence the Commission dismissed the complaint of complainant. This Commission by relying upon a citation passed by National Commission, New Delhi in H.C. Sazena versus New India Assurance co. through its Manager & Anr. 2012 (1) CPR 31 such as: - Report of surveyor is an important document and can not be brushed aside without any compelling evidence to the contrary. And in view of C.A. No: 1299/2019 judgment passed by Honble Supreme Court of India on 30.01.2019.
As far as compensation is concerned in this case, the complainant has claimed a sum of Rs.50,000/- to the O.P. as compensation. However he has not corroborated his claim by filing any cogent documentary evidence.
In the above room, the Commission allowed the complaint against the opposite party nos. 1 & 2 taken into consideration of report submitted by the surveyor admitted the cause of loss and liabilities. Though the O.P.No.3 initiated proceedings under SARFAESI Act, the Commission has no jurisdiction the complaint is not maintainable against O.P.No.3. Hence the Commission dismissed the complaint against O.P.No.3. The opposite party nos. 1 & 2 are directed to pay the net liability amount of Rs.2,95,008/- together with interest at the rate of 6% per annum to the complainant from the date of order along with litigation cost of Rs.5000/- within 45 days from the date of receipt of the Order in default whereof interest @9% per annum shall be payable till full realization from the O.Ps in accordance to the Consumer Protection Act, 2019.
In view of the judgment, all the pending interim petitions and orders are disposed of accordingly henceforth.
The case is disposed of accordingly.
The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.
A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019.
The file is to be consigned to the record room along with a copy of this Judgment.
Pronounced on 02.12.2024.
