Sri A.K. Bhattacharyya, President
The present case has been filed by the complainant praying for the orders to the effect that the OP- 1 is to be directed to pay Rs. 4,00,420/- along with 12% interest thereon from the date of claim till payment or exemption from the loan amount, other cost Rs. 10,000/- and litigation cost Rs.10,000/- etc.
The complainant’s case, in a nutshell, is that the complainant, being a businessman has been carrying its business for selling all kinds of cement products and hardware materials and involves in production of all kinds of cement based products, hardware materials. The relation between Shanti Cement Factory and Babloo Sahoo is the Proprietor of Shanti Cement Factory. The complainant’s business has been hypothecated to OP no. 1 who is the Punjab National Bank, Teparpara branch and the aforesaid business had been insured by OP no. 1 to the OP no. 2 and OP no, 3 for the sake of securing loan amount which was taken by complainant from OP no. 1. As per complainant, the OP no. 1 had the responsibilities to renew the insurance policy within due period as the OP no. 1 is the Joint Policy holder with the complainant. The complainant purchased a policy from OP no. 2 and OP no. 3 vide policy no. 150303/46/07/7500000084 and the period of the said policy was 05-06-2007 to midnight of 04-06-2008. The complainant paid the premium in respect of this policy through the OP no. 1, the complainant is the consumer of OP no. 2 and 3 who are also liable to pay compensation, if any losses, damages occurred in the said business due to natural calamity etc. Alarge number of properties of the complainant’s business were badly damaged due to heavy rain on 17-06-2008, 18-06-2008 and 19-06-2008 for which the whole area of the complainant’s market as well as the entire area of Patashpur P.S and Bhagwanpur P.S were affected by devastating flood. The total amount relating to damaged goods of complainant’s business due to flood was Rs. 4,0,420/-. According to the complainant the OP no. 1 did not renew the policy within due period and due to the negligence or lack of proper service of OP no. 1, the complainant could not avail of the insurance benefit of total damaged amount from OP no. 2 and OP no. 3. As per complainant, here lies the deficiency in service on the part of the OP no. 1. As OP no. 2 and 3 wrongly mentioned the name of the complainant in the insurance policy which is Babu Sahoo ‘in lieu of Babloo Sahoo’, so, OP no. 2 and 3 are also liable for deficiency of their services. The complainant has been ruined financially due to natural calamity (flood) and for this reason he is not able to give loan amount to OP no. 1 and due to the negligence of OP no. 1, the complainant is not getting the benefit of insurance policy. The complainant informed the entire incident to the Gram Pradhan, Patashpur Gram Panchayat, Patashpur II, Purba Medinipur on 19-06-2008, the OC of Patashpur PS, Purba Medinipur on 20-06-2008, the OP no. 1 on 20-06-2008, the BDO, Patashpur II Block on 21-06-2008, the Circle Head of PNB at Medinipur but did not get any relief. The OP no. 2 & 3, after having the said information orally, did not take any step or steps or did not agree to compensate the complainant for Rs.4,00,420/-. As per the complainant the cause of action arose on 17-06-2008 and 18-06-2008 when the flood was occurred and the matter was informed to OP no. 1 on 20-06-208 and 25-06-2010 and the matter was also informed to the Circle Head of OP no. 1 on 08-12-2009.
The OP no. 1 appeared in this case to contest the same by filing amended WVas also WNA wherein all material allegations of the complainant have been denied.it has been stated therein that the relation between the complainant and OP no. 1 is Debtor and Creditor. The insurance premium was to be paid by the complainant, but the complainant did not pay heed to the effect. According to the OP no. 1, in the agreement dt. 10-09-2003made between the complainant and OP no. 1 it is clearly mentioned that the complainant is responsible for payment of insurance money or non-payment of insurance money. The complainant did not deposit any extra amount or did not submit any receipt of payment of insurance premium to the OP no.1 in time. As per OP no. 1 that the loan amount which was taken by the complainant was not insured but only the goods were insured by OP no. 2 & 3, which were hypothecated to OP no.1. The loan account of the complainant became NPA on 28-05-2010. In accordance with the agreement the complainant should inform or to take step at least 7 days before lapse of insurance policy. OP no. 1 denies that after the lapse of insurance, the business of complainant had been affected by devastating flood which he alleged. According to OP no. 1 as written in WV, to escape from loan liability the complainant has drawn this case for harassment to OP no. 1. According to OP as stated in WNA that the loan taken by the complainant is a Term Loan and the monthly installment of Rs. 10,000/-and the LIC premium of Rs.4,000/- approx. The account of the complainant was bad-ab-initio. From September 2007 to February 2008 the borrower/complainant did not make any payment and according to RBI guidelines the account became NPA as within 90 days no payment was made. Then after February 2008 few payments were made by the complainant and before lapse of time of insurance policy the borrower or the complainant made a payment of Rs. 3,000/- only on 24-5-2008 and Rs. 500/- on 11-6-2008 and at that time the outstanding balance was lying with the bank (OP no. 1) was Rs. 3,66,053/-.
The OP no. 2 & 3 appeared in the case by filing WV and WNA where it has been stated that the instant case is not maintainable within the purview/provisions of the C. P. Act, 1986 and the complainant cannot get any benefit of his own wrongful act and omissions. According to the OP no. 2 & 3 the complainant availed of an insurance policy in the joint name of the complainant and OP no. 1 i.e. Punjab national Bank, Terapara branch having period from 05-06-2007 to 04-06-2008,subjected to the strict terms and conditions of policy certificate. As per OP no. 2 & 3 the complainant did not renew the insurance policy of OP no. 2 & 3. So, there is no relation going on in between complaint and the OP no. 2 & 3 in respect of consumer and service provider.
None of the parties adduced any evidence but they have relied upon the averments made in their respective pleadings which were supported by affidavit and the documents submitted by them before this forum. But both the parties have submitted their respective WNA.
We have gone through the pleadings of the parties, the documents submitted by them as also WNA.
Points for consideration
- Whether the complainant is consumer or not?
- Is there any deficiency in service on the part of the OPs?
- Whether the complainant is entitled to get any relief or compensation?
With an eye to the above three points for consideration the discussions are mentioned below.
Decisions with reasons
Point nos. 1,2 & 3:
Having regard to the facts and circumstances of the case and on perusal of the documents submitted by both parties and considering argument made by the complainant and OPs, it appears that the complainant has availed of a Term Loan from the OP no. 1 to run his business which is operating by the complainant. According to the complainant, he carried the said business to earn his livelihood but its not being run for self-employment because no hints about the self-employment regarding the aforesaid business have been mentioned in the complainant. That apart there cannot be any hesitation to say that such a cement factory cannot berun by self-employment and for carrying such a business of cement factory other employees must be required. So, we can say that the business run by the complainant having loan from OP no. 1 is of commercial purpose. That being the position, he is not a ‘consumer’ under the provisions of C.P. Act, 1986.
As the complainant has received Term Loan on interest basis from OP no. 1 which is to be paid to the OP no. 1 with interest within a certain time, then complainant has become consumer to the OP no. 1 but when the insurance policy offered by OP no.2 &3 to the complainant had not been renewed by the complainant in specific time mentioned in the policy certificate and the said policy had been lapsed, then the complainant has not been a consumer to the OP no. 2 & 3 who are the insurance policy provider. The relation between the insurance policy company and the insurance policy holder exists as a service provider and a consumer till the validity of respective insurance policy, but after expiry of the valid period and default in renewal of policy the relationship between the both sides regarding the insurance policy became null and void and valueless. Here in the instant case, same has been taken place in between complainant and OP no.2&3. It is true that OP no. 1 and the complainant are the joint policy holders of the said insurance policy and as the business run exclusively by the complainant and the OP no.1 is the provider of loan amount by which the said business had been running by the complainant, then renewal date/period of the said insurance policy should have been noticed by complainant and OP no. 1. In argument the ld. advocate of OP no. 1 referred the para no. 10 of the agreement written in between the complainant and OP no. 1 and submitted that the entire responsibility is only upon the shoulder of the complainant for not renewing the said insurance policy, but it is clearly stated in para no.10 of the said agreement that ‘….. it shall be lawful (but not obligatory) for the bank itself to effect such insurance or to renew or to pay such premia and to keep the hypothecated goods insured and to debit the expenses incurred by the bank to borrower’s account….’ From this clause it is clear that the responsibility regarding renewal of policy goes to both the complainant as also the bank who is OP no. 1 in this case and it is also true that it is not obligatory i.e. not bounden. There is no dispute that the complainant was/is everytime very much irregular in depositing of payment of loan to the OP no.1. So, we feel that the OP no.1 cannot be held as sole responsible in the matter of not renewing the said policy. Since, both the complainant and the OP no.1 were responsible for the matter of renewal of policy so, considering the circumstances, it would not be wise to hold any deficiency in service on the part of the OP no.1. As the insurance policy became expired and had not been renewed by OP no. 1 or complainant, so OP no. 2 & 3 have taken an authentic decision in presenting themselves silent in this matter and hence, we find no deficiency on the part of the OP nos. 2 & 3.
The complainant had received a loan amount from OP no. 1 having promised to pay the loan amount with interest within a certain period, but he failed in doing his job and became defaulter in paying loan amount and for any definite reason his due outstanding to the bank (OP no.1) for loan has become a huge amount.
Having considered the discussions as made above and having regard to the facts and circumstances of the case and on careful perusal of the documents filed by both the parties, we find that the complainant was running a business for which he took a loan for commercial purpose and he is not a ‘consumer’ under the provisions of the C.P. Act, 1986 and this matter has already been discussed above. So, this case is not maintainable in law under the provisions of the C.P. Act for the aforesaid reasons. Hence, the complainant is not entitled to get any compensation or any relief as sought for. That being so, the instant case is liable to be dismissed.
Both those three points are, thus, disposed of accordingly.
Accordingly, it is,
ORDERED
that the instant case no.11/2011 be and the same is dismissed on contest against OPs. Parties do bear their own respective cost.
Rituraj Dey A.K. Bhattacharyya
Member President
