Orissa

Kendujhar

26/1998

Shakeel Ahmed Khan - Complainant(s)

Versus

The Branch Manager, State Bank of India - Opp.Party(s)

Sri P.K. Patra

25 Feb 1999

ORDER

BEFORE THE PRESIDENT: DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KENDUJHAR

CONSUMER DISPUTES CASE NO.26/1998

Shakeel Ahmed Khan,

S/o - Late Tayub Khan,

Proprietor of LUCKY TIME CENTER,

Main Road, Barbil, 

P.O/P.S- Barbil,

Dist- Keonjhar……………………………………………Complainant

                                 Versus

The Branch Manager,

State Bank of India,

Barbil Branch,

P.O/P.S - Barbil,

Dist- Keonjhar  ……………………………………………O.P.

 

For the complainant: - Sri P.K. Patra, Advocate

For the O.P.               : - Sri C. Hota, Advocate

                                         Sri M.R.  Padhi, Advocate

                                         Sri B.K. Pati, Advocate

                                         Sri B.K. Behera, Advocate

                                         Sri S.C. Sahoo, Advocate

 

Present- Sri Binayak Acharya, President

                 Dr. K.K. Dwibedi, Member

                 Miss. P. Parija, Member

 

Date of Hearing: - 03.11.98                                                                                      Date of Order: - 18.02.99                     

SRI BINAYAK ACHARYA , PRESIDENT: - The brief fact of this case is that the complainant incurred cash credit loan of Rs.25,000/- in order to earn his livelihood and for his self employment starting a business of selling and repairing watches opening of shop at Barbil in the name and style of LUCKY TIME CENTER a small venture. This shop was insured for Rs.50,000/- with the Oriental Insurance Company, Barbil and the O.P had been depositing the premiums of insurance from the account of the complainant as per the then prevailing practice without waiting for the consent of the petitioner. On 29/30.07.97 the shop of the petitioner was plundered by some unknown culprits for which the P.S. Case No. 116/30.07.97 was registered under sec. 457/380 I.P.C. when the petitioner tried to get the accidental loss from the Insurance Company, he came to know that the O.P. had discontinued to pay the premiums which was to be paid till the date of maturity. Therefore, the petitioner filed this case on 19.03.98 when due to the fault of the O.P. and deficiency of service he lost the opportunity to avail the benefit of the insurance.

     The case was admitted because the petitioner/ loanee is a consumer in true sense of the term and filed this case within the period of limitation before this forum having territorial and pecuniary jurisdiction.

   The O.P. filed his show cause on 08.07.98 with a defense plea that the petitioner had waived the Insurance with request to discontinue the payment of premiums to which the petitioner bluntly denied.

   On perusal of the show cause, we found that, though the O.P. has not specifically denied but otherwise admitted the allegations of the petitioner to be true. The statements made in the versions are paradoxical. He admitted the cash credit loan and insurance with the Oriental Insurance Company. He also admitted the alleged theft from the shop. The irregularity in payment of premiums by the O.P. is otherwise admitted. The case of the petitioner cannot be disbelieved since facts admitted need not be proved. The petitioners case is also well proved and cannot be disbelieved in view of the P.S. Case No. 116 dt.30.07.97 registered in Barbil P.S. On the other hand, the only paramount defense taken by the O.P. is that the petitioner had given a Waiver Letter dt.05.04.97 requesting the O.P. to waive the requirement of the insurance which was submitted in the court on 03.11.98. The execution of such waiver letter and signature by the petitioner underneath were straight way denied. On the other hand, the counsel for the O.P. declared positively and insisted upon that the above said waiver letter had been definitely executed by the petitioner with his initial underneath. When the execution and initial are dis-admitted the burden of proof lies on the counsel for the O.P. to prove his case since whoever desired any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts must prove that those facts actually exist. He neither get the initial examined by any expert nor adduced any evidence to prove the execution of that waiver letter examining any attesting witness before whom that document was prepared or examining the scribe. Burden of proof is on the O.P. but not on the complainant. Onus probandi is that if no evidence is given by party on whom the burden of proof lies then it must be held against him. Onus arises when no evidence or when any question of fact is to be proved. Furthermore party on whom onus lies must produce sufficient evidence. Only then other party has onus of rebuttal. Party asserting must prove existence of facts on which he wants judgment.  The party who alleges execution of a document must examine persons with knowledge who has signed as witness or was present at the time of execution. It is also to note here that in view of the show cause filed by the O.P. and as per the provisions of Sec. 58 of the Indian Evidence Act, no fact need be proved in any proceeding which the parties there to or their agents agree to admit at the hearing or which before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings. The last but not the least, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. Every allegation must be taken to be proved unless denied. As per the considered opinion of their leadership in National Commission that ipsofecto small venture is not for commercial purpose rather run to earn livelihood. Hence we are convinced that the petitioner has suffered due to deficiency of service on the part of the O.P. and for his fault and imperfection, inconsequence of which the petitioner has been deprived of availing his valuable right of insurance having no fault of himself.

      Therefore it is ordered that the O.P. is liable to compensate the loss of the petitioner and is directed to compensate the insurance amount, along with payment of Rs.5,000/- towards loss of business and 2000/- towards mental agony with cost of Rs.200/- for the litigation within 30 days of pronouncement of judgment.

       Pronounced in the Open Court today i.e. on 18^th February, 1999 under my hand and seal of the Forum.     

               I do not agree

As the complainant does not come

 within purview of consumer

           Miss P. Parija                                                                                                  Sri Binayak Acharya

OFFICE OF THE PRESIDENT: DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KENDUJHAR

CONSUMER DISPUTES CASE NO.26/1998

Shakeel Ahmed Khan,

S/o - Late Tayub Khan,

Proprietor of LUCKY TIME CENTER,

Main Road, Barbil, 

P.O/P.S- Barbil, Dist- Keonjhar……………………………………………Complainant

                Versus

The Branch Manager,

State Bank of India, Barbil Branch,

P.O/P.S - Barbil, Dist- Keonjhar  ……………………………………………O.P.

 

For the complainant: - Sri P.K. Patra, Advocate

For the O.P.               : - Sri C. Hota, Advocate

                                         Sri M.R.  Padhi, Advocate

                                         Sri B.K. Pati, Advocate

                                         Sri B.K. Behera, Advocate

                                         Sri S.C. Sahoo, Advocate

 

Present- Sri Binayak Acharya, President

                 Dr. K.K. Dwibedi, Member

                 Miss. P. Parija, Member

 

Date of Hearing: - 03.11.1998                                                                             Date of Order: - 25.02.1999

SRI BINAYAK ACHARYA , PRESIDENT: - The brief fact of this case is that the complainant incurred cash credit loan of Rs.25,000/- in order to earn his livelihood and for his self employment starting a business of selling and repairing watches opening of shop at Barbil in the name and style of LUCKY TIME CENTER a small venture. This shop was insured for Rs.50,000/- with the Oriental Insurance Company, Barbil and the O.P had been depositing the premiums of insurance from the account of the complainant as per the then prevailing practice without waiting for the consent of the petitioner. On 29/30.07.97 the shop of the petitioner was plundered by some unknown culprits for which the P.S. Case No. 116/30.07.97 was registered under sec. 457/380 I.P.C. when the petitioner tried to get the accidental loss from the Insurance Company, he came to know that the O.P. had discontinued to pay the premiums which was to be paid till the date of maturity. Therefore, the petitioner filed this case on 19.03.98 when due to the fault of the O.P. and deficiency of service he lost the opportunity to avail the benefit of the insurance.

     The case was admitted because the petitioner/ loanee is a consumer in true sense of the term and filed this case within the period of limitation before this forum having territorial and pecuniary jurisdiction.

   The O.P. filed his show cause on 08.07.98 with a defense plea that the petitioner had waived the Insurance with request to discontinue the payment of premiums to which the petitioner bluntly denied.

   On perusal of the show cause, we found that, though the O.P. has not specifically denied but otherwise admitted the allegations of the petitioner to be true. The statement made in the versions are paradoxical. He admitted the cash credit loan and insurance with the Oriental Insurance Company. He also admitted the alleged theft from the shop. The irregularity in payment of premiums by the O.P. is otherwise admitted. The case of the petitioner cannot be disbelieved in view of the P.S. Case No. 116 dt.30.07.97 registered in Barbil P.S. On the other hand, the only paramount defense taken by the O.P. is that the petitioner had given a Waiver Letter dt.05.04.97 requesting the O.P. to waive the requirement of the insurance which was submitted in this court on 03.11.98. The execution of such waiver letter and signature by the petitioner underneath were straight way denied. On the other hand, the counsel for the O.P. declared positively and insisted upon that the above said waiver letter had been definitely executed by the petitioner with his initial underneath, when the execution and initial are dis-admitted the burden of proof lies on the counsel for the O.P. to prove his case since whoever desired any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts must prove that those facts actually exist. He neither get the initial examined by any expert nor adduced any evidence to prove the execution of that waiver letter examining any attesting witness before whom that document was prepared or examining the scribe. Burden of proof is on the O.P. but not on the complainant. Onus probandi is that if no evidence is given by party on whom the burden of proof lies then it must be held against him. Onus arises when no evidence or when any question of fact is to be proved. Furthermore party on whom onus lies must produce sufficient evidence. Only then other party has onus of rebuttal. Party asserting must prove existence of facts on which he wants judgment.  The party who alleges execution of a document must examine persons with knowledge who has signed as witness or was present at the time of execution. It is also to note here that in view of the show cause filed by the O.P. and as per the provisions of Sec. 58 of the Indian Evidence Act, no fact need be proved in any proceeding which the parties there to or their agents agree to admit at the hearing or which before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings. The last but not the least, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. Every allegation must be taken to be proved unless denied. As per the considered opinion of their leadership in National Commission that Ipsofecto small venture is not for commercial purpose rather run to earn livelihood.

    Hence we are convinced that the petitioner has suffered due to deficiency of service on the part of the O.P. and for his fault and imperfection, inconsequence of which the petitioner has been deprived of availing his valuable right of insurance having no fault of himself.

      Therefore it is ordered that the O.P. is liable to compensate the loss of the petitioner and is directed to compensate the insurance amount, along with payment of Rs.5,000/- towards loss of business and 2000/- towards mental agony with cost of Rs.200/- for the litigation within 30 days of pronouncement of judgment.

       Pronounced in the Open Court to-day i.e. on 25^th February, 1999 under my hand and seal of the Forum.  

                    I  agree

           Dr. K.K. Dwibedi                                                                                                  Sri Binayak Acharya

                   Member                                                                                                              President

                                                                                                    Dictated and corrected by me

                                                                                                           Sri Binayak Acharya

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, ODISHA, CUTTACK

C.D. REVISION NO. 11 OF 1999

(From an order dated 25.02.1999 passed by the District Consumer Disputes Redressal Forum Kendujhar in C.D. Case No. 26 of 1998)

The Branch Manager,

State Bank of India, Barbil Branch,

P.O/P.S - Barbil, Dist- Keonjhar                                                                                    ………………Petitioner

                      Vrs.

Shakeel Ahmed Khan,

S/o - Late Tayub Khan,

Proprietor of LUCKY TIME CENTER,

Main Road, Barbil, Dist- Keonjhar                                                                              ………………Opp. Party

For the Petitioner                                                                : Mr. S.P. Das, Advocate

For the Opp. Party                                                               : None

PRESENT:

                 The Honorable Shri Justice R.N. Biswal, President,

                                                      Smt. S. Mohanty, Member

                                                                          And

                                                        Shri G.P. Sahoo, Member

Dated 31^st October, 2014

O R D E R

Smt. S. Mohanty, Member

     Complainant is owner of a shop, named Lucky Time Centre, located at Main Road, Barbil. He deals in sale and repairing of watches. He had incurred Cash Credit Loan, bearing Account No. 4/66, since 1991 from O.P. Bank for the aforesaid business. The said shop was covered under insurance to the tune of Rs.50,000/-. The insurance premium was debited from complainant’s account by O.P. Bank. Unfortunately on 29&30/07/1997 midnight some unknown culprits committed theft of valuable watches worth Rs.1,00,000/- from his shop. The said matter was reported to Police at Barbil and P.S. Case No. 116 dated 30/07/1997 was registered U/S. 457 & 380 of I.P.C. It was alleged that of the insurance premium was not paid by O.P. Bank for which complainant was debarred from insurance benefit. Complainant served legal notice to O.P. to pay a sum of Rs.1,00,000/- to him within 15 days of receipt of notice. But O.P. did not respond. Complainant sustained heavy loss in business. He therefore, filed a Consumer Complaint before the Forum below and claimed Rs.10,000/- towards loss of business and Rs.10,000/- towards mental agony and compensation.

      On notice being served upon O.P. it appeared through its counsel and filed written version. O.P. contended that the complainant was not maintainable and was barred by limitation. Complainants Cash Credit Account was operated by the complainant himself in a regular manner and insurance premium was paid to the insurance company. There was no such agreement that Bank would pay the premium with the consent of loanee. Further complainant did not submit the stock statement and the Insurance Waiver Letter dated 05/04/1997, for which insurance was not paid. Hence, there is no deficiency in service on the part of O.P. Bank and hence it prayed for dismissal of complaint.

     After hearing the parties and going through the documents, learned District Forum by majority decision directed O.P. to compensate the insurance amount along with payment of Rs.5000/- towards loss of business and Rs.2000/- towards mental agony with cost of Rs.200/- for litigation expense within 30 days of pronouncement of judgment. The dissenting member found that the complainant does not come within the purview of Consumer Act, without giving any reason for such opinion.

     Being aggrieved by the aforesaid order O.P. filed an appeal before this commission. As per the order dated 09.04.1999 the said appeal was converted into revision petition on the ground that there appears to be a gross irregularity and an attempt to short - circuit the statutory provisions was made. When the case was heard by president and one member, and when the member disagrees with the view of the president, the case should have been referred to the other Member of the Forum for hearing and the majority view would have been the final order of the forum. The Commission therefore treated the appeal as a revision petition under Section 17 of the C.P. Act, 1986.

      Heard learned counsel for the revision petitioner. The opposite party has been set exparte.

     The petitioner specially pleaded that he had produced Insurance Waiver Letter executed by O.P. O.P. had undertaken the responsibility for any loss if any arising out of the non insurance of the hypothecated assets. The revision petitioner prayed for setting aside the impugned judgment and order.

     The opposite party vehemently opposed the contentions made by the petitioner. It was argued that petitioner was well aware about expiry of insurance and ought to have paid the premium before the expiry of earlier policy. Due to deficiency in service towards the payment of insurance premium, this O.P. suffered loss and was debarred from availing the benefit under the said insurance.

    Perused the record, documents filed by the parties, impugned judgment and order as well as the LCR.

    On perusal of the LCR it is seen that the order passed by the learned District Forum was initially signed by the president only on 18/02/1999. The said order was disagreed by one of the member.  Later it was signed by the President and second member on 25/02/1999. Challenging the said order O.P. had filed an appeal. But the said appeal was wrongly converted to Revision Petition by this Commission. It is pertinent to note that the impugned order is signed by the president and one member of the District Forum. As it is decided by the majority, we consider it to be an appeal. Let the matter be registered as an appeal.

    After thorough perusal of record it is found that O.P. had entered in to an agreement with Appellant- Bank on 04/05/1990 for hypothecation and guarantee for carrying on business of sale and repair of watches in sole proprietorship under the name and style of M/s Lucky Time Centre. As per the sanction of working capital letter dated 04/05/1990, the stocks hypothecated to the Bank should be insured against risks of fire, theft, and burglary, house breaking etc. for the full value with an approved company in the joint name of the Bank and the firm and the relative policies should be held at the Bank. The cost of the insurance should be borne by the firm. The insurance policies will be renewed by the Bank by debit to the firms account if not renewed by the firm in due time, under intimation to the Bank. Further it is seen that on 05/04/1997 O.P. had applied for insurance waiver. As per the said letter, insurance of the hypothecated shop was waived.   Thereafter, unfortunately, on 30/07/1997 theft was committed by some unknown culprits in respondents shop. Hence, he claimed for the loss sustained. His claim was not entertained by the appellant on the plea that he had applied for waiver of insurance. But appellant has denied the same. On verification of the said letter it is found that the waiver letter is signed by respondent. Moreover, the signature tally with the signature of respondent as found in the Demand Promissory Note, D.D. Note Delivery Letter, Confirmation of Balance, Revival letter etc. This shows that the said waiver letter was made without the knowledge of respondent. Appellant plea that the payment of insurance premium was not made on the basis of waiver letter is therefore tenable. Respondent had registered one P.S. Case Vide No. 116/30/07/1997 at Barbil which shows that the theft case is true and his claim for loss is correct. It was the duty of the appellant to continue the payment of premium as per the terms and conditions mentioned in the sanction letter, but non continuance of payment of the said premium is due to the letter of waiver of Insurance addressed to the appellant. In such circumstances, the appellant cannot be held liable for payment of any damage sustained by the respondent due to theft of articles from his shop.

     It appears from the order of the learned District Forum that unnecessary emphasis has been given on the proof of letter of waiver. Consumer Forum is not a Civil Court. The Forum is to see that principle of natural justice is being followed while disposing of the dispute. Intricacies of burden of proof etc. should not be gone through rigorously for proof of a document. The forum is to see that reasonable opportunity of being heard is given to both parties. Strict proof of documents is not necessary here. The Consumer Protection Act has been made to give speedy remedy to the litigant public. If the Forum goes to the intricacies of proof of document, details of proof etc. then the essence of speedy trial will be lost.

     In view of the above facts and circumstances, we are of the opinion that appellant is not liable to compensate respondent. In this case the parties have filed their respective documents from the same one has to come to conclusion, as to whether relief can be given to the consumer or not.

     In the result, we allow the appeal. The order 25/02/1999 passed by the learned District, Forum, Keonjhar is hearby set aside.

     The LCR be sent forthwith.  

 

                                                                                                                                                (Justice R.N. Biswal)

                                                                                                                                                          President

                                                                                                                                                       (S. Mohanty)

                                                                                                                                                           Member

                                                                                                                                                        (G.P. Sahoo)

                                                                                                                                                           Member