Date of Filing:  25.04.2013.                                                                        Date of Final Order: 31.03.2014

Sri Uttam Kumar Das, S/o. Ramjiban Das of Vill. & P.O.- Bhutkura, Dist. Cooch Behar, (2) Monteswar Barman, (3) Monoranjan Barman & (4) Md. Asraf Miah, have filed the instant complaint as complainants, jointly U/S 12(1)(c) of the C.P Act, 1986, having the same interest against the four Opposite Parties i.e. (1) The Branch Manager, Uttar Banga Khestriya Gramin Bank, (2) The Chairman, Uttar Banga Khestriya Gramin Bank, (3) “Gramin Gudam, Bhakteswar Barman Self Help Group,” Represented by its Secretary, Sri Narayan Barman, (4) The Assistant Agricultural Marketing Officer,(Administrative), & (5) National Insurance Company Ltd.(Added Party), Represented by Mr. M.R. Sikdar, Administrative Officer. The case of the Complainants, as can be gathered from the petition of complaint, in brief is that the complainants being the small farmers intending to preserve, stored their farm product “TOBACCOS” in the Rural Godown i.e. with the Opposite Party No.3, by paying certain charges (Rent) and to sell it for profit. The Complainants are carrying on their said business only for their lively-hood. The Complainants after production of Tobacco stored the following quantities as described in the table to the said Gramin Gudam of the Opposite Party No.3 and the Opposite Party No.3 issued “Receipt” which depicts that the stored products were duly insured with The National Insurance Company Ltd. On the basis of the said stored items the four Complainants obtained 60% Pledged Loan from the Opposite Party No.1 Bank. Particulars of the farmers, date of storing, product, quantity & value of goods are as follows:

The Total Quantity of Tobacco is 76.39 quintal, Valued at Rs. 3, 49, 574/-Only.                 

At the time of taking loan @ of Rs.50, 000/-each from the Opposite Party No.1 Bank, the Complainants deposited the original Gudam Receipts to the Bank. The main contention of the Complainants is that on 20.06.2010 the Complainants went to the Opposite Party No.1 and 3 for returning back their stored item by paying the loan amount of Rs.50, 000/- each along with interest; but neither the Opposite Party No.1 i.e. the Bank neither received the loan amount re-paid nor the Opposite Party No.3 returned back the stored “Tobaccos” to the Complainants. Thereafter, Complainants tried several times for getting back the same but with to good. At that juncture of their agonies, they came to know that the said “Gudam” has been burnt, due to devastating fire on 09.05.2010, for which the entire stored materials had been destroyed. After that, the Complainants by sending a letter on 01.02.11 to the Opposite Party No.1 prayed for obtaining the amount in lieu of the stored Tobaccos by paying the loan amounts; but all were in vain. The Complainants alleged that in this situation the Opposite Party No.1 did not take proper steps to get the Insurance Claim, rather it created pressure upon the Complainants for repayment of the said loan by issuing Demand Notice.

Ultimately, the Complainants by not getting the Insurance Claim/the goods or it’s valued amount, in connection with the stored Tobaccos, have filed the instant complaint before this Forum praying for a direction upon the Opposite Parties for realization of the said amount and other relief(s), as incorporated in the prayer portion of the complaint.

            This complaint has been filed on 25-04-2013 along with four I. P.Os., each of Rs.100/- i.e. Total Rs.400/-and the case being No. DF 31/2013 was registered.

            Notice, after hearing the Ld. Advocate for the Complainant on admission point, Notice was issued upon all the 4 Opposite Parties on 29-04-2013. It appears that after receiving the Notice from this Forum the Opposite Party Nos.1 to 3 entered their appearance through   their respective Ld Advocates and filed their W/Vs, Evidence on affidavit etc.  The Opposite Party No.4, represented by Mr. Gopal Chandra Dey, the Assistant Agricultural Marketing Officer appeared in person. On 12-09-2013 the Ld. Advocate of the Complainants has filed a petition for adding the Insurance Company in this case as a necessary party; but in taking steps many dates elapsed and lastly prayer was allowed. Notice was issued upon the National Insurance Company Ltd., (added Opposite Party Vide-No.5). 4/5 dates elapsed for appearance and filing W/V and Evidence on affidavit by the Opposite Party No.5. On 24-01-2014 argument was heard in full and on submission of both the parties opportunity has been given them to file relied on decisions/rulings, documents before the passing of the Final Order, as none of the parties in contest, has filed the required documents to mark and adduce the same in evidence with their Evidence on affidavit.

The Opposite Party Nos.1 & 2 entered their appearances through their Ld. Agent and contended that the case is not maintainable before this Forum, in fact as well as in law, he also denied almost all the allegations leveled by the Complainants against the Opposite Parties. This answering Opposite Parties also averred that the Complainant willfully filed the present case with intension to avoid the matter of re-payment of loan and claimed that these Opposite Parties have caused no deficiency in service in any way and prayed for dismissal of the case.

The Opposite Party Nos.1 & 2 by filing Evidence on affidavit stated that the Bank sanctioned 60% loan at the @ Rs.50, 000/- to each of the Complainants, on the basis of the quantity of their stored Tobaccos. The Complainants miserably failed to re-pay the loan, even after receiving the request letters from the Bank which is bounded duty of a Loanees. In the concluding part of his evidence he prayed for dismissal of the case with exemplary cost as the Complainants have not come before this Forum in clean hand.

            The Opposite Party No.3 in his turn by entering his appearance also filed a W/V along with affidavit and has contended that the Gramin Gudam, under the scheme of Rural Godown, approved by U.B.K.G.B., was running by “Bhakteshwar Barman Self Help Group” according to the directives of the Opposite Party No.1 and headed by the Opposite Party No.2, so the Bank is the sole authority of the Gramin Gudam and the duty of the Opposite Party No. 3 is to observe, watch the Godown and the income of the Opposite Party No.3  which was generated from the Godown Rent.

This answering Opposite Party No.3 also admits the fact of storing Tobaccos by the Complainants in his Godown & also averred that in connection with that stored items one Standard Fire and Special Perils Policy was initiated, wherein the Opposite Party No.1 and 2 are the first insured and the second insured’s name is “Bhakteswar Barman Self Help Group” for which the Bank is only the sole authority to meet up the demand of the Complainants. After the incident of fire this Opposite Party took all necessary steps for which it has no deficiency in service, as alleged by the Complainants. This Opposite Party also prayed for relieving him from this complaint as it is nothing but an association in the name of Bhakteswar Barman Self Help Group, formed by 13 Poor Farmers running this Gramin Gudam, in a rented house taking approval from the “Uttar Banga Khestriya Gramin Bank” where the farmers stored their seasonal crops and received Pledge Loan to stop their distress-sale.

In it’s turn the National Insurance Company i.e. Opposite Party No.5 by filing a W/V denied almost all the allegations against this answering Opposite Party and stated that the complainants are not the “Consumer” of this Opposite Party for which this case is not maintainable against this Company. The main contention of this Opposite Party is that the incident of fire in the Gramin Gudam is true; but not the entire stocked tobaccos destroyed by fire, but no incident of Burglary took place. After receiving the intimation of fire, this answering Opposite Party appointed a Surveyor on 12.05.2010 who assessed the loss, valued of Rs.1,28,785/-(Round), after deduction of Policy excess of Rs.10,000/-. This Opposite Party intimated the Insured about the amount of settlement; but the Insured remained silent for which this Opposite Party was bound to close the claim file after prior intimation to the insured, as such this Opposite Party has no deficiency in service and prayed for relief(s) from the instant case.

This Opposite Party No.5 has also filed Evidence on affidavit and no new matter so far has been adduced. The Ld. Advocate for the Insurance Company has categorically stated that it is the Insurance Company and bound to pay claims of the Insured and/or their legal heirs or nominee(s) and to none else; until and unless this competent Ld Forum so directs. Further, the Ld. Advocate for the O.P.No.5 has submitted that the Policy File has been closed, as the claim relates to the Insured Party(s) remained silent in spite of finalization of the allowable claim on receipt of information of the fire in the Godown and in spite of intimation to the concerned parties remained silent it had no alternative but to close the file as per norms and in no way it is related to the present complainants. For argument’s sake, it is not denied that directly the O.P.No.1 & 2 and 3 i.e. Bank and the Godown are beneficiaries of the Policy as the Parties concerned insured; but it cannot be and should not be denied that the Two Insured Parties in this case might have got their Insurance against security against FIRE/Burglary or the like against the Godown, invariably against it’s stock to meet claims against loss/damage etc and finally the farmers who have stored their goods with the Godown and obtained the Pledged Loans are the beneficiaries. They are to be compensated by the concerned OPs and not by the O.P.No.5. The Insured Parties, if claim again, the Insurance Company would decide the matter, as to such claim and in that case also this Hon’ble Forum is to direct the O.P.No.5 to open the File and take necessary action.

In the instant case the on behalf of the Proforma Opposite Party No.4 Represented by one Sri Gopal Chandra Dey, Assistant Agricultural Marketing Officer, Administrative, Dinhata, Cooch Behar appeared and also has filed the W/V, along with one document and after that he has restrained from his appearance. By filing W/V, he stated only one point that the document marked Annexure “B” in the complaint petition is authentic as per their Office Register. No evidence on affidavit has been filed by this Opposite Party. Hence, the Final Order is being decided in his absence.

By filing evidence on affidavit this answering Opposite Party No.5 stated that there is no incident of burglary of Tobacco/Jute. The Insured Parties had willfully and negligently violated the terms and conditions of the Policy. Moreover, the value of stored goods in the Gramin Gudam was more than the Sum assured at the material time of loss for which the Insured are not entitled to get more amount than the sum assured. The surveyor assessed the loss based on the Stock register which reveals that at the time of loss there were only 76.39 Quintals. The Complainants have not suffered any loss for any activities for this Opposite Party and for this reasons the complainants are not entitled to get any relief from this Opposite Party.

The Opposite Party No.3 has filed a brief note in respect of the original documents and his case claim in that the entire liability is on the bank and not on him. The said written note appears as below and we have treated it as his written argument in addition to the argument brought forward by his Ld. Advocate and synchronized herein below :-

DF Case No. 30/2013,  31/2013,  32/2013.

            (1). Bhakteswar Barman Self Help Group is an Account holder and also a borrower of Uttarbanga Kshetriya Gramin Bank, Bhetaguri Branch from 31-08-1998. Annexure – A – 14, 15, 16.; (2). Under Rural Godown Scheme. Uttarbanga Kshetriya Gramin Bank approved Rural Godown (Gramin Gudam) run by the said Bhakteswar Barman SHG vide Memo No. BTG/23/226 dated 03-12-2002 and other papers. Annexure – A – 17 – 1. Annexure – B –1 to 9 Memorandum  B – 10 Approval B – 11 Approval; (3) Gramin Gudam was properly insured under GIC vide National Insurance Policy No. 153901/46/09/7500000277, Burglary Policy, Sum Insured Rs.5,00,000/-, and Policy No. 153901/11/09/3100000358, Fire Policy, Sum Insured Rs.5,00,000/-, Policy period 06-08-2009 to 05-08-2010. Insured’s Name U.B.K.G. Bank and Bhakteswar Barman SHG. Annexure – B – 12 Burglary Policy, B – 13 Fire Policy; (4) Fourteen farmers stored jute and tobacco and received pledge finance from bank. One farmer stored produce but would not receive bank loan. Annexure – B – 14;  (5) Date of Burglary and Fire: 09-05-2010.Annexure – B – 15 to B – 19 Photo, B – 20, 21, 22 Paper cutting, B – 15 to 18 Witness. (6) Bank and Group intimated NIC, FIR to Police regarding fire on 10-05-2010. Annexure – B – 23, 24 to NIC,  B – 25, 26 FIR to Police; (7) On the date of intimation NIC issued Fire Claim Form and denied to issue Burglary Claim Form; (8) Group and Bank (BM) wrote letter to the NIC (BM), Cooch Behar to issue Burglary Claim Form on 18-05-2010. Annexure – B – 66; (9) Group several times verbally requested NIC (BM) but he did not hear of it. (10) Group and Bank prayed to the D.M., Cooch Behar against NIC vide Memo No. BBSHG/hr/GG/DM/24 dated 20-07-2010, regarding Burglary Claim Form. Annexure – B – 72; (11) Group and Bank filed request to issue the Burglary Claim Form vide Memo No. NIC/12/2011, dated 06-06-2011.Annexure – B – 67; (12)  NIC (BM) issued letter to the Group denying to issue the Burglary Claim Form on 15-06-2011.Annexure – B – 71; (13) Group filed petition with grievances to the NIC on 30-06-2011 describing Burglary elements which were existed during occurrence and during the visit of the surveyor. Annexure – B – 68 – 69; (14) After a period of one year two months, the Branch Manager NIC, Cooch Behar issued two  Burglary  Claim  Forms separately on 07-07-2011 and on 11-07-2011. Annexure – B – 66 to 80; (15) Bank and Group submitted the Burglary Claim Form duly filled in on 19-07-2011, whereas Bank and Group submitted Fire Claim Form to the NIC on 22-09-2010. Annexure – B – 81 to 88 Burglary claim, B – 49 to 52 Fire claim.

            The following papers and documents were enclosed with or submitted for claim settlement :

1. Estimate of loss prepared by the Group and the Bank involving Pradhans of Bhetaguri I and Bhetaguri-II G.P. and others as follows : Annexure – B – 27 : Letter of Bank (BM), 20-06-2010; B – 28 : Estimate of Loss, 16-09-2010; B – 29 : Market Price Report, 21-06-2010; B – 30, 31: Salvage Sale, 25-06-2010, Rs. 1,72,746/-; B – 32, 33: Letter to the Pradhans, 23-06-2010; B – 36 to 46: Tender Papers, 18-06-2010 to 21-06-2010.
2. Fire Brigade Report :Annexure – B – 47 : Submitted to the NIC, 01-11-2010; B – 48 : Fire Brigade Report, 29-10-2010.
3. Police Report :Annexure – B – 89: Submitted to the NICI, 19-03-2012;  B – 90 to 96: Certified copy, 15-03-2012.
4. All other necessary papers;

By this time farmers submitted their demands to the Group and the Group submitted letter to the Bank (BM) regarding farmers problem and demands on 04-02-2011. Annexure – B – 56 to 65 : Farmers petition, 22-06-2010 to the Group; B – 55 : Group’s petition to the Bank, 04-02-2011 By this time farmers submitted their demands to the Bank (BM) on 01-02-2011. Annexure – B – 53; NIC denied burglary claim on 02-05-2012. NIC stated reasons as under: “(I) The Police Authority has registered your case under section 379 IPC (theft only) i.e. there is no visible sign of felonious entry or exit from the premises by violence and forcible means. The Burglary Policy covers loss or damage to property by theft following burglary as housebreaking”. Annexure – B – 97.

            So, Group and Bank filed petition under RTI Act, 2005 seeking informations regarding investigation report on burglary claim and survey report on fire claim to the NIC on 16-05-2012. Annexure – B – 98 : RTI petition. NIC issued survey report on fire claim and investigation report on fire claim on 28-05-2012. No investigation report on burglary claim was issued on 28-05-2012.Annexure – B – 103 : Forwarding letter, 28-05-2012; B – 106 to 109 :Survey Report on fire claim, 06-09-2012; B – 104, 105 : Investigation Report on burglary claim, 27-02-2012.  So, Group and Bank filed petition again to the NIC on 16-07-2012 under RTI Act, 2005 seeking informations regarding Investigation Report and Survey Report on burglary claim and Technical Report on claim settlement. Annexure – B – 114 : RTI petition.

NIC issued Investigation Report and others received by the Group on 30-08-2012. Annexure – B – 115 : Forwarding letter, 02-08-2012;  B – 116, 117 : Fire Claim Form, 16-09-2010; B – 118 to 124 : Police Report, 15-03-2010;  B – 124(a) : Fire Report, 29-10-2010; B – 125, 126 : Stock Register, 2009, 2010; B – 126(a), 127 : Technical Report, 10-05-2012; B – 128, 129 : Investigation Report to Burglary, 27-02-2012; B – 130 to 133 : Burglary Policy explanation.

By this time on 09-07-2012 Group and Bank requested NIC to reconsider the Burglary claim as the surveyor came to the spot and also admitted the real fact, highlighted the housebreaking or burglary situation. Annexure – B – 111 : Letter to NIC, 09-07-2012. NIC denied to reconsider the request raising the same points as stated in his letter on 02-05-2012, (Annexure – B – 97) on 12-07-2012. Annexure – B – 113 : NIC letter to Group, 12-07-2012; Group submitted Fire Claim Form to the NIC on 22-09-2010. Annexure – B – 49 to 52, 22-09-2010. NIC settled fire claim for Rs.1,28, 786.00 on 15-05-2012 and sent some papers for acceptance. Annexure – B – 99 to 102 : NIC to Group, 15-05-2012.

Group and Bank rejected the settlement and requested to reconsider the amount on 09-07-2012.  Annexure – B – 110 : Group to NIC, 09-07-2012. NIC rejected the prayer for reconsideration on 12-07-2012. Annexure – B – 112 : NIC to Group, 12-07-2012.

Group decided to file a case against the Insurance Company (NIC) to the Consumer Forum and prayed to Branch Manager for Bank’s advice, consent, and approval as the Bank in the soul authority in this regard. Annexure – B – 134, 26-10-2012. Bank denied to approve, gave no consent and advice and returned all papers to the Group on 29-11-2012, Branch Manager treated Bank as Limited Financer. Annexure – B – 135, 29-11-2012. Group sought No Objection for filing case against NICI to the Bank (Branch Manager) on 01-01-2013. Annexure – B – 136, 01-01-2013. Bank did not issue ‘No Objection Certificate’ and commented “The matter is under exclusively your (Group’s) prerogative” on 04-01-2013. Annexure – B – 137, 04-01-2013. Branch Manager (Bank) called Group for giving the Group No Objection and returned papers were sought for by the BM on 11-01-2013. Annexure – No need. Group resubmitted all papers to the BM (Bank) on 14-01-2013. Annexure – B – 138, 14-01-2013. Bank issued No Objection Certificate to file the case against the NIC on 26-02-2013. Annexure – B – 139, 26-02-2013. Group prepared the petition of the case and sent the same to the Branch Manager (Bank) for his signature as he was the first insured and soul authority of the godown and goods but he received only the forwarding letter. All other papers with the main petition were returned to the Group mentioning “received without any enclosure The matter will be taken into the care of our higher authority before taking any decision” on 18-04-2013. Annexure – B – 140, 16-04-2013. Branch Manager (Bank) denied to sign on the case petition and enclosed a letter from Bank’s lawyer who opined that the case against NIC must not be instituted as the date of occurrence (09-05-2010) was over the two years. Annexure – B – 144 : Bank’s Letter, 23-05-2013; B – 145 : Lawyer Letter, 23-05-2013.  Group rejected Bank’s saying and lawyer’s opinion and mentioned “the cause of action of the incident was arisen on 02-05-2012 and 15-05-2012 and is continued time to time” vide letter of the Group Memo No. BBSHG/BM/GD/07/2013 dated 28-06-2013. Cause of action may be fixed on 30-03-2013 as the NIC wrote a letter to the Group on 30-03-2013. Annexure – B – 146 : Group’s letter to Bank, 28-06-2013. B – 143 : NIC letter to the Group, 30-03-2013; B – 147 : Copy of Consumer Protection Act, Limitation period. Bank (BM) advised to submit all the documents for putting signature vide letter dated 21-08-2013. Annexure – B – 148, 21-08-2013.

Group reluctantly resubmitted all documents and told the B M (Bank) to “proceed as you deem fit” dated 03-10-2013. Annexure – B – 149, 03-10-2013; Bank (BM) signed the petition without date and without the name of his agent and returned all (130 pages) on 22-10-2013. Annexure – B – 150, 22-10-2013; Group stated that they suffered much and so they returned all papers to the BM (Bank) on 23-11-2013 but the BM received the forwarding letter only. Annexure – B – 151, 23-11-2013; BM (Bank) advised the Group to follow Bank’s Letter vide No. Br/34/582/Misc, dated 22-10-2013 by sending letter dated 03-12-2013. Annexure – B – 152, 03-12-2013.

IMPRESSION :

1. Burglary Claim Form story speaks harassment to the Group by the NIC.
2. Burglary Claim Form with other papers has not been sent to the Consumer Forum.
3. Investigation on Burglary was not done in time. Investigation report dated 27-02-2012 speaks itself. Surveyor commented/opined, (vide page 2, point 5). “Now, after over the years of occurrence and with in capacity of Insurance enquiry, it is not possible task to apprehend about forcible entry in the insured’s stock (depend upon report Police) thereby burglary occurred in the same stock at the same spot during the event of fire (09-05-2010)”. Annexure – B – 28, 29.
4. Burglary was fact. Investigation Report (dt.27-02-2012) proved it (vide Investigation Report dated 27-02-2012 page 1 and point 1 indicated “1 reportedly known that fire was originated from outside of drainage hole of floor plinth”. So, “sign of felonious entry or exit from the premises by violence and forcible means” was found. The drainage hole was unsealed while of the holes were sealed as stated by the surveyor in his Survey Report dated 06-09-2010. Annexure – B – 106, 128, 29.
5. Burglary was fact. Police Report proved it. Police Report indicated, “before reaching of Police a large number of quantity of raw jute and tobacco leaf were stolen away by some unknown miscreants and rest articles gutted .......”. “After completion of investigation a portion of raw jute a tobacco leaf have been stolen away by some unknown miscreants”. Annexure – B – 96.
6. Assignment/estimate of loss prepared by the surveyor was defective, Survey Report and Police Report proved it.
7. Rate of produce was not correct, as assessed by the Surveyor. He did not follow Govt. market report.
8. Bank harassed Group much for filing case to the Consumer Forum.
9. Group did all in time.
10. Fire Claim Form and Burglary Claim Form explained all and enclosed papers explained all but the NIC did not care of them.
11. Bank is the soul authority of the Group and the Godam.
12. Rent on produce was only income of the Group.
13. Group had no deficiency.
14. There was housebreaking and so, the produces were stolen away.
15. So, the Group in not in a position to compensate the Farmers.

From the above contention we may reasonable presume that the O.P.No.3 has left no stone unturned.

The above documents have been marked exhibit “A-1 to 41” and “B-1 to 152”. 

From the contention of the both parties, materials on record and on its entirety the following moot points come up for consideration.

Points for Consideration

1. Whether the Complainants are the “Consumers”? If so, who’s Consumer?

2. Whether there is any deficiency in service on the part of the Opposite     Parties?  If so,  on who’s part and to what extent?

3. Whether the Complainants are liable in any way for re-payment of loan with interest to Bank, if it has not been paid up in the meantime.

4. Whether the opposite Party No.4 is legally liable for deficiency in service on it’s part?

5. Whether the Opposite Party No.5 is liable to pay the claim amount in connection with the Policy and if so to whom?

6. Whether the Complainants are entitled to get relief(s) as prayed for?  If so, to what to extent?  If not, why not?

Decision With Reasons

We have perused the materials made available on record, including W/V of the Opposite Parties, Evidence on affidavit of the respective parties concerned. We have also heard the argument advanced by the Ld. Counsels of the parties also considered the Written Arguments filed by the Opposite Party No.1, 2 & 5.besides, the 4 paged written statement filed with a bunch of supported papers under signature of Mr. Narayan Barman as Secretary “ Bhakteswar Barman Self Help Group,” Vill.- Baladanga, P.O. Borodanga, Dist.- Cooch Behar-736134.

With due regards to the argument put forward for the Complainants and the Opposite Parties, we find that in their evidence none of the parties has adduced evidence relying on the documents filed/shown before us for marking as Exhibit but jumbled by voluminous papers and that also just before formation final order under Lists by the concerned party/Ld. Advocates and marked Exhibits. In separate sheets, even after their arguments to justify their arguments, so far.

From the contents of the complaint, written versions, written arguments/argument put forwarded by the Ld. Advocates orally, decisions, together with the materials contained in the Exhibits marked we do decide the instant case as follows Point-wise.

Point No.1. Whether the Complainants are the Consumers? If so, who’s Consumer?          

            From the discussion hereinbefore and the materials on record including the petition of complaint and evidence adduced for the complainants; the W/V and evidence on affidavit on the part of the Opposite Parties 1 & 2 (Bank), 3. Godown and 5 i.e. the Insurance Company and also the Proforma Opposite Party i.e. Opposite Party No.4.  We have reason to believe that the Complainants had tie-up with the Godown first by keeping their Tobaccos in the Godown to get Pledge Loan from the bank and as such the complainants are directly Consumer of Opposite Party Nos.1, 2 & 3 respectively and the beneficiaries of the Opposite Party No.5 and not a direct Consumer of the Opposite Party No. 5.

Undisputedly, it is transparent that the Complainants stored their seasonal crops in the Gramin Gudam of the Opposite Party No.3 which was duly insured by the Opposite Party No.1 & 3 with the Opposite Party No.5 i.e. the Insurance Company. The point of the dispute is that Stored Tobaccos of the complainants burnt due to devastating fire; but the Complainants neither received any compensation nor any claim amount from the Opposite Party Nos.1, 2, 3, or 5, not even they showed minimum interest to meet up the claim of the Complainants.

            Hence, it can be reasonably & safely presumed that the Complainants are the consumers of the O.Ps No.1 & 2 in one part and of the O.P.No.3 on the other part because they stored their products in the said Godown against rent; but in no way they are the consumers of the O.P.No.5., as they had stored their goods in the Godown of O.P.No.3, and based on such stock, the O.P.No.1 sanctioned the Pledged Loan. The O.Ps No.1 & 3 came in picture as they were admitted as Insured, based on the Godown and reasonably with stock in it i.e. the Insurance Company also involved the complainants’ goods; but they were not made party to that insurance either as legal heir and/or beneficiary.   

Point No.2. Whether there is any deficiency in service on the part of the Opposite     Parties?  If so, on who’s part and to what extent?

It is crystal clear in this case that the farmers have placed their goods with the Opposite Party No.3 to get the pledge loan from the Opposite Party No.1 & 2; but not to the Opposite Party No.4 whose function is only to determine the price of the products of the farmers in general and it has been admitted by the determined price of Tobaccos. Here, in this case, alike the case of procurement of such products has not brought to light so far it appears from materials on record. Hence, the Opposite Party No.4 in our considered view has no liability, as there is no institution like JCI to procure jute from the farmers and store the same.

Next, from record it appears that the Opposite Party No.1, 2 & 3 are the proposer-cum assured persons of the Insurance Policy and as such they have no direct nexus with the Complainants in the matter of insurance but when they have suffered their loss due to fire and the Opposite Party No.1, 2 & 3 are the legal claimants and also the direct beneficiaries of the assured policy and accordingly they are entitled to get the benefit in terms of the provisions of the said Policy.

            In the instant case there appears no counter-claim/Case by the Opposite Party Nos.1, 2 & 3 against the Opposite Party No.5; but by various averments they have tried to shift their liability and responsibility upon the Opposite Party No.5 i.e. the Insurance Company as those goods were insured by the Opposite Party No. 5.

            In conclusion in our considered view the Complainants i.e. the farmers who have filed the instant case for relief is entitled to get relief(s) minimum in the behest of value of the tobacco goods of the relevant period or as per minimum rate/price of per quintal as per the Godown Receipt/Rate, i.e. Rs.4,266/- per quintal ascertained by the concerned Agricultural Department, vide-Rs.85,850/-, Rs.85,540/-, Rs.86,984/- & Rs.91,200/- as per store receipt respectively and not beyond.  As there apparently appears negligence/deficiency in service on the part of the Insurance Company admitting the Surveyor’s Report depicting the loss of Rs.1,38,785/- (Round) Rs.10,000/- i.e. Net Rs.1,28,785/- against the value of the goods in this case of Rs.3,49,574/- as admitted by both the parties i.e. the bank & the Godown, respectively. Besides, there appears that Jute and other goods were also stored in that Godown cannot accept if we consider the DF Case No.30/20013 & 32/2013 under the same said policy, relating to consumer disputes involving much, much higher amount pending before this Forum at hand in respect of Jute, destroyed in that fire. So, though it can be disputed; but cannot be denied that the O.P.No.5 has no negligence and/deficiency in their service on the part i. e. of the O.P.No.1, 2, 3 & 5, jointly and/or severally and hence, except the O.P.No.4 rest O.Ps are liable for payments of reasonable compensation due to such deficiency in service on their part i.e. Opposite Party Nos. 1, 2, 3 & 5 directly/indirectly to the Complainants together with the litigation cost, besides their mental agony & unnecessary harassment  for compelling them to file the instant case.

Further, the averments containing allegation that the Godown has retained much more goods beyond the assured amount of the policy is different aspect and not to be decided by this Forum in the instant case as it has not came out as counter-claim in terms of Civil Procedure Code/C.P. Act which has provided limited provisions within which ambit this Forum is to function. Their claims and relief(s) hence, lies elsewhere.

            In respect of the Insurance Policy the amount is Rs.5,00,000/-. The Surveyor Report speaks of loss estimated at Rs. 1,28, 786/- arose due to the said fire incident. It cannot be reasonably accepted.

Point No.3. Whether the Complainants are liable in any way for re-payment of loan with interest   to Bank, if it has not been paid up in the meantime.

From the petition of Complaint of the Complainants vide No.1, 2, 3 & 4 it appears that each of them has taken Pledge Loan @  Rs.50,000/- i.e. 60% of the stock- goods, taken on different dates, then the value of the tobacco goods may be calculated proportionally as value and they are liable to re-pay the pledge loan amount with interest in terms of the Loan Agreement and they are entitled to get value of tobacco goods; but they have not re-paid said amount of loan and/or the interest to the Bank concerned, from the Demand Notice of bank it appears that the bank has claimed Re-Payment of the Pledge loan amount with Interest & ancillary charges) from Complainants 1,2,3 & 4. Obviously, the Complainants are liable for re-payment of loan with interest & ancillary charges to Bank i.e. O.P.No.1, if it has not been paid up in the meantime.

            It is pertinent point to mention that there is no denial from the part of Opposite Party Nos.1, 2 & 3 that the Complainants stored their product (Tobacco) in the godown of the Opposite Party No. 3 with the financial assistance of Opposite Party Nos.1 & 2. The Complainants stored their tobacco and took pledge loan from the Opposite Party No.1, bank at the rate of 60% of the stored tobacco. It appears from the record that the stored Seasonal Crops (Jute & Tobacco) in the said Gramin Gudam were duly Insured with the National Insurance Company wherein the U.B.K.G. Bank, Bhetaguri Branch i.e. Opposite Party No.1 is the 1^st Insured and the Opposite Party No.3 is the 2^nd Insured. After the incident of the fire the “Claim-Form” in connection with the Policy No. 153901/11/09/3100000358 has been duly filed up there was also another Policy No.153901/46/09/7500000277 against burglary of Rs.5,00,000/- and submitted by the Secretary of B.B.S.H.G. i.e. Opposite Party No.3 on 16-09-2010 and before that on 10-05-2010 the Opposite Party No.2 informed about the fire incident to the Insurance Company. Thus, it is crystal clear beyond any manner of doubt that the Opposite Party Nos.1, 2 also 3 have taken all necessary steps for getting the Insurance claim; but afterwards they appears to have remained silent, reason best known to the  party concern. On the other hand the complainants failed to produce and /or adduce by any documents/evidence that they have paid any amount against the said pledge loan. Hence we can without any hesitations in deciding this point against the complainants determining that they are liable in any way for re-payment of loan with interest to Bank, if it has not been paid up in the meantime, in terms of loan agreement.

Point No. 4. Whether the opposite Party No. 4 is legally liable for deficiency in service on it`s part?

From the discussion herein above there is no iota of evidence to hold the opposite party No.4 is liable for deficiency in service or for the like matters.

Point No. 5. Whether the Opposite Party No.5 is liable to pay the claim amount in connection with the Policy and if so to whom?

In the like manner, we may come to a decision in respect of the pioneer opposite Party No. 3 together with the other OPs. In this case i.e. O.P. No.1 & 2 are the banks came in picture after the complainant applied for pledge loan against the stored tobaccos in the godwan of the O.P. No.3, thereafter it is the O.P. No.1 & 3, applied for their insurance policy with the insurance company i.e. The National Insurance company ( O.P. No.5,) from the discussion here in before at length we have no hesitation to hold that the O.P. No.5, is liable to Pay the claim amount/Insured amount together with interest at par with bank interest on loan of the relevant period.

The O.P. No. 5 is liable for such payment to the O.P. No.1 & 3 only in terms of the policy refer to herein above and not to any other party beyond it.

Point No. 6. Whether the Complainants are entitled to get relief(s) as prayed for?  If so, to what  extent? If not why not?

            In the conclusion, from the fact, circumstance, materials on record including the exhibits mark, the reported decisions of the Superior Forums/Hon’ble Courts, including the Hon’ble Apex Court relating to such cases, befitting to the issues of this case, together with consideration of submission by the Ld. Counsels, for their respective parties. we have no hesitations to decide that the complainants, being small farmers had stored their produced crops with the godown to save them from distress for distress sale and reasonably they cannot be thrown in the more distress condition. Be it the fact that the complainants are both morally and legally liable to re-pay the pledge loan with interest and ancillary charges as per bank rule and for which the bank has initiated Demand Notice upon the complainants; but so far not yet initiated any Proceedings under The SURFAESI Act, 2002/Public Demand Recovery Act. We may view as per the banking laws and rules therein. We find that, in respect of recovery of bad debt they are attending the Loke Adalats, for re-conciliation of the matters as pre-litigation. The bank may consider this aspect as it deems fit and proper to give the poor cultivators, being valuable customers of the bank as well as being the root of social structure. So, we find it reasonable to award the cost of litigation, award in respect of deficiency in service and causing harassment with mental pain of the complainants by the concern OPs, to the extent, based on the Rent Receipts issued by the O.P.No.3, to the complainants/calculating the amounts based on the report of the O.P. No.4, in respect of the price of tobaccos at the relevant period together with interest at the bank rate in respect of the Fixed Deposit, treating the matter as if the amount was fixed assets, stored on the valued amount. Reasonably, we find that the complainants should be directed to re-pay the loan with interest etc. and the O.Ps.1, 3, & 5, should be directed to compensate the amounts awardable by this Forum, subject to adjustment of accounts by negotiation jointly and /or severally, as from the available record the exact amount could not be ascertained, due to non-production of relevant documents by the respective parties before this Forum till date.

ORDER          

Therefore, it is ordered that the complaint case be and the same succeeds with litigation cost of Rs.2,000/- each, Rs.25,000/- each towards compensation for deficiency in service, Rs.5,000/- for harassment, mental pain and agony of the complainants since the date of fire incidence and respective capital amount with 12% w.e.f. date of storing the tobacco in the godown based on godown receipts on the capital amount Rs.3,25,879/- proportionately and in parity with the godown receipts, treating the same as investment. The O.P.No.1, 3, & 5 are directed to pay the ordered amounts to the individual complainants 1 to 4 severally or jointly to Complainant No.1 i.e. Uttam Kr. Das, within a period of 60 days from the date of order, failure of which the OPs. Shall pay @ Rs.60/- for each day’s delay i.e. w. e. f. the date of expiry of the aforesaid period of 60 days, by depositing the amount, if any accrued for such delay. The entire payments shall be made jointly and/or severally within the aforesaid period.

Simultaneously, the Complainants are directed to re- pay the pledge loan in terms of the Loan Agreement forthwith and up to date, on completion of the adjustment of the accounts by negotiation and finalization of the dues and in this regard the Complainants shall co-operate the Opposite Parties accordingly.

The Opposite Party No.5 is directed to settle up the policy claim matters with the Opposite Party Nos.1 & 3 within the period of aforesaid 60 days.

At the event of failure to comply with the order the Opposite Parties No.1, 3 & 5 as well as the Complainants shall jointly and/or severally shall pay cost @ Rs.30/- and Rs.40/- respectively for each day’s delay, if cost by either of the parties jointly and/or severally on expiry of the aforesaid 60 days by depositing the accrued amount if any by depositing in the State Consumer Welfare Fund, West Bengal.

Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates concerned by hand/by Registered Post with A/D forthwith, for information & necessary action.

Dictated  and corrected by me.

                President                                                                                   President

   District Consumer Disputes                                                         District Consumer Disputes

Redressal Forum, Cooch Behar                                                  Redressal Forum, Cooch Behar

              Member                                                                                             Member

   District Consumer Disputes                                                         District Consumer Disputes

Redressal Forum, Cooch Behar                                                  Redressal Forum, Cooch Behar