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

Sri Nripendra Nath Barman S/O Bhabendra Nath Barman of Vill. Baladanga P.O. Barodanga, Dist. Cooch Behar has filed the instant complaint with other three complainants having the same interest U/S 2 (1) (b) (iv) of the C.P Act 1986 against the four opposite Parties.

The case of the Complainant as can be gathered from the complaint petition in brief is that the complainant being the small farmers intend to preserve, stored their farm product in Rural Godown i.e. Opposite Party No.3 by paying certain charge  and to sell it for profit. The Complainants are carrying on the said business only for their lively hood. The Complainants after production of jute stored the following quantities as described in the table to the Gramin Gudam of the Opposite Party No.3 and the Opposite Party No.3 issued a receipt which depicts that the stored products are duly insured with the National Insurance Company Ltd. On the basis of the said stored items the Complainants obtained 60% pledge loan from the Opposite Party No.1 Bank. Particulars of the farmers, date of storing, product, quantity & value of goods are as follows:

At the time of taking loan of Rs.50,000/- each from the Opposite Party No.1 Bank the Complainants deposited the original gudam receipt to the Bank. The main contention of the Complainant is that on 20.06.2010 the Complainants went to the Opposite Party No.1 and 3 for returned back their stored item by paying the loan amount of Rs.50,000/- each along with interest but neither the Opposite Party No.1 Bank received the loan amount nor the Opposite Party No.3 returned back the stored jute to the Complainants and thereafter Complainants tried several times for getting back the same but with no good. At the event of their agonies subsequently they came to know that said gudam has been burnt by devastating fire on 09.05.2010 for which entire stored materials destroyed. After that the Complainant by sending a letter on 01.02.11 to the Opposite Party No.1 prayed for obtaining the amount in lieu of the stored jute by paying the loan amount but all are in vain. The Complainant alleged that in this situation the Opposite Party No.1 did not take any proper step to get the Insurance claim rather it creating pressure for repayment of the said loan upon the Complainants.

Ultimately, the Complainants by not getting either their stored jute or the price of those stored jutes, have filed the instant complaint before this Forum and prayed for a direction upon the Opposite Parties for realization of the said amounts and other relief(s), as incorporated in the prayer portion of the complaint.

            This complaint has filed on 25-04-2013 with four I.P.Os. of Rs.100/-each total amounting to Rs.400/- and the case was registered being No. DF 30/2013and was admitted.

Notices were issued upon the Opposite Parties fixing 31-05-2013 for S/R and appearance. After receiving the Notice of this Forum the Opposite Party Nos.1 to 3 entered their appearance through their Ld. Advocates, on 31-05-2013 and took time to file their W/V. whereas, the O.P.No.4 i.e. the Assistant Agricultural Marketing Officer (Administration), Proforma Opposite Party entered appearance in person by Mr. Gopal Chandra Dey, Assistant. Agricultural Marketing Officer (Administrative), Dinhata on the said date and on 17-06-2013 filed his W/V. The O.P.No.1 to 3 prayed for further time on that date and again on 04-07-2013 also prayed for time to file W/V.  On 19-07-2013 the O.P.1 & 2 had filed their W/V.  On that date the O.P. No.3 was absent without any step and none also responded on repeated calls, hence the case against him was taken in ex-parte hearing, fixing 05-08-2013 for evidence of the parties. On that date the O.P.No.1 & 2 filed evidence on affidavit and prayed for time to file written argument. The complainant filed a petition for time to file his evidence on affidavit. The O.P.No.3 filed a prayer to vacate the order of ex-parte hearing against him and filed his W/V & Evidence on affidavit. He also filed petition for time to file written argument. On 20-08-2013 the O.P.No.3 filed his written argument along with some documents. Argument was however heard as put forwarded by the parties; but 12-09-2013 was fixed for further argument by O.P.No.1 & 2 0n the point whether the JCI i.e. O.P.No.4 was meant for ascertaining the price rate of jute only and/or also for procuring the same mandatorily and/or obligatorily or otherwise and it has any other duty to perform as a matter of Policy of the Government. At this stage the O.P.No.1 &2 filed their written argument.

Surprisingly, at this juncture the complainant filed a petition for adding the Insurance Company as a necessary party in this case as their goods were insured with the said company which however was allowed fixing 24-09-2013 for steps; but they failed to take step and time was allowed fixing 30-09-2013 for steps which was acted upon.   National Insurance Company Ltd., Biswa Singha Road, P.O. & Dist.- Cooch Behar-736101, was added as Opposite Party No.5. Notice was issued fixing 10-10-2013 for S/R, appearance & it entered appearance, represented by Mr. G. Pradhan, the Administrative Officer, NIC Ltd. through his appointed Ld. Advocate Mr. Prasenjit Datta who prayed for time to file W/V; but again he took time to file W/V, when 19-11-2013 was fixed for the same. For the O.P.No.5 the W/V was filed and 12-12-2013 was fixed for filling evidence on affidavit and it was accordingly filed.  Thereafter, again 02-01-2014 was fixed for argument/written argument. The Ops No.4 & 5 remained absent without step and non-appeared on repeated calls. Accordingly 24-01-2014 was fixed for argument. The Opposite Party No.5 filed his written argument with some documents for Case Nos. DF 30/2013, 31/2013 & 32/2013 and after hearing argument in full 10-02-2014 was fixed for delivery of judgement but the order was not ready for not being typed and then 25-02-2014 was fixed for delivery of Final Order and to file rulings/documents further if any in the mean time. On the said date also the Final Order could not be ready for not being typed and 07-03-2014 was fixed for delivery of Final Order but on that date the President was on leave and hence 25-03-2014 was fixed for delivery of Final Order but in advertently it could not be delivered and today is fixed for delivery of Final Order.

Besides, for the Insurance Company, 4-5 dates elapsed for appearances, filing W/Vs and Evidence on affidavit and on 24-01-2014 argument was heard in full and on submission of both the parties; opportunity has been given to them to file rulings, documents as they have contended to file before passing Final Order.

On perusal of the written versions, evidence on affidavit, arguments put forward by the parties in contest it appears that this case involves not only the materials on record but also some matters as to the Govt. Policy reflected in Circulars, Notifications etc. time to time for its implementation.

The Opposite Party Nos.1 & 2 entered their appearance through an Agent and contending that the case is not maintainable before this Forum, in fact as well as in law, also they have denied all most all the allegations, save and except which are on record, leveled by the Complainants against the Opposite Parties. This answering Opposite Parties also averred that the Complainants willfully filed the present case with intension to avoid the re-payment of loan and this Opposite Parties have no deficiency in service in any way and has prayed for dismissal of the case.

The Opposite Party Nos.1 & 2, by filing Evidence on affidavit stated that the Bank sanctioned 60% Pledge Loan at the@ Rs.50, 000/- to each of the Complainants, on the basis of the quantity of their stored jute in the godown of Opposite Party No.3. The Complainants miserably failed to re-pay the loan even after receiving the request letter from Bank which is their bounded duty to re-pay, as loanees. In the concluding part of their evidence they 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 files a W/V along with affidavit and also 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 not only the sole authority of the Gramin Gudam;  but also is liable for the compensation to the complainants as it had issued pledge loans to them based on their stocks and the duty of the Opposite Party No.3 is only to observe, watch the Godown and as the income of the Opposite Party No.3 was generated from the Godown Rent as beneficiary and nothing else.

This answering Opposite Party No.3 admits the fact of storing jute by the Complainants in his godown and also averred that in connection with that stored items one Standard Fire and Special Perils Policy was done in the joint names of the Opposite Party No.1 & 3, where in the Opposite Party No.1 & 3 are the first insured and the second insured and thus the Bank is only the prime 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 case as it is nothing but an Association in the name of “Bhakteswar Barman Self Help Group” formed by 13 poor farmers and who are running this Gramin Gudam in a rented house taking approval from the Uttarbanga Kshetriya Gramin Bank where the farmers stored their seasonal crops and received pledge loans to stop their redress sale.

This Opposite Party also filed Evidence on Affidavit wherein no new points came out for discussion and consideration.

In the instant case on behalf of the Proforma Opposite Party No.4 one Sri Gopal Chandra Dey, the Assistant Agricultural Marketing Officer, Dinhata, Cooch Behar, appeared and also filed W/V along with one document and after that he has not appeared. 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.

 In its turn the National Insurance Company i.e. Opposite Party No.5, by filing a W/V denied almost all the allegation against this answering Opposite Party and stated that the complainants are not the “Consumers” 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 jute was destroyed by fire, besides, 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 at 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 has prayed for dismissing the case against it i.e. the O.P.No.5.

By filing evidence on affidavit this answering Opposite Party No.5 stated that there is no incident of Burglary of Tobacco/jute but  the Insured Parties willfully and negligently violated the terms and condition 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 961.915 mound of jute. The Complainants have not suffered any loss for any activities of this Opposite Party. For these 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 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 information 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 reconsidering 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 sole 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 reasonably 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 also the materials on its entirety the following moot points/Issues necessarily come up for consideration.

POINTS/ISSUES FOR CONSIDERATION

1. Whether the Complainants are the Consumer? If so who’s Consumer?

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

3. Whether the Complainants are liable in any way for repayment of loan with interest if it has not paid up in the meantime?

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

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

6. Whether the Complainants are entitled to get relief/reliefs as prayed for? If so to what extent if not why not?

Decision With Reasons

We have perused the materials made available on record including W/V of the Opposite Parties also evidence on affidavit of both the parties. We have also heard the argument advanced by both the counsels of the parties also considered the Written Argument filed by the Opposite Party No.1 & 2. With due regard to the argument put forward by 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 jumble by voluminous papers.

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 of 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.

Undisputedly, the Complainants stored their seasonal crop 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. The point of the dispute is that stored jute 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 & 5 even they did not show minimum interest to meet up the claim of the Complainants.

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 Consumer? If so who’s Consumer?

            From the discussion herein before 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 No.1 & 2 (Bank) 3 godown and 5 Insurance Company and also the proforma Opposite Party i.e. Opposite Party No. 4 we have reason to believe that the Complainant had tie up with the godown first by keeping their Jute in the godown to get pledge loan from the bank and as such the complainants are directly Consumer of Opposite Party Nos.1 & 3 respectively and the beneficiaries of the Opposite Party No.5 and not a direct Consumer of Opposite Party No.5.

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?

For the complainants it has been contended that the Opposite Party No.4 is The Assistant Agricultural Marketing Officer, (Administrative), Dinhata who is not only to ascertain the price of Agricultural Products but he is also engaged in procurement of raw jute when the market price is equal to or below the Minimum Support Price (MSP) alike the Jute Corporation of India. Where there are departmental purchase centre of the Jute Corporation of India Ltd. in Cooch Behar region and where the corporation purchases from jute growers at the DPCs at MSP which is the policy of the Govt. Surprisingly, The Jute Corporation of India not made a necessary party in the instant case either by the Complainants or by the Opposite Parties. We do not find any mandatory provision to hold the Opposite Party No.4 liable in this case for want of evidence, though for the Complainants it has been claimed that they approach the Opposite Party No.4 for the said purpose for sale of their goods alleging that the Opposite Party No.4 has not responded to as this matter rather had denied their responsibility/liability to purchase these jute as a mandate. We agree that the JCI is engaged in procurement of raw jute but not The Assistant Agricultural Marketing Officer, (Administrative), Dinhata. Hence, the Opposite Party No.4 has apparently no liability of purchase those jute goods. They are only concerned with the rate of the jute of that relevant period for which they have no deficiency in service. Thus this point is decided against the Complainant and The Assistant Agricultural Marketing Officer, (Administrative), Dinhata, is immune from this case.

The crystal clear point is in this case is that the farmers have placed their jute with the Opposite Party No.3 to get the pledge loan from the Opposite Party No.1 & 2 but not to sell to the Opposite Party No.4. But it should be to the reasonable extent i.e. we are to consider the matter of compensation in the perspective that at the time of storing the jute in the godown what was the weight by weighing might have decreased due to lapse of time since the date of storing till date and further it will further decrees in respect of weight and quality at the time of selling the same is a matter of common prudence. In the instant case the stored jute along with other crops even if destroyed by fire the remains have been retained and sold in auction as for record filed by the Opposite Party No.3 i.e. the godown. 

So, it can reasonably be said that there are deficiency in service on the part of the Opposite Parties No.1 & 3 directly and on the Opposite Parties No.5 indirectly and to the extent as discussed herein above.

Point No.3. Whether the Complainants are liable in any way for repayment of loan with interest if it has not paid up in the meantime?

It is crystal clear that the four complainants in the instant case have taken pledge loan @ Rs.50,000/- each on different dates and the Bank i.e. Opposite Party No.1 has already issued Demand Notice on 31-01-2013 to the respective Complainants for different amounts for the period of their taking pledge loan to the period up to 31-12-2012 so far which appears almost nearer to the amount of value of jute as per Godown Receipts and much, much above that loan amount. It shall reasonably be much above the amounts appears in the said godown receipts till date, with compound interest @ 13.5% on the loan amounts, if it is to be paid but there is no alternative but to pay the loan amount with interest and ancillary charges, of course the bank may condone the interest and ancillary charges if deems fit and proper in such a case of fire but the Forum cannot direct them to adopt any such step. Accordingly the Complainants are liable to re-pay the loan with interest time to time till the matter is cleared up.

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

Next, from record it appears that the Opposite Party Nos.1 & 3 are the proposer cum assured person of the Insurance Policy and as such they have no direct nexus with the Complainants in the matter of Insurance Company but when they have suffered their loss due to fire and the Opposite Party Nos.1 & 3 are the legal claimants also the direct beneficiary of the assured policy and only they are entitled to get the benefit in terms of the provisions of the said policy. The Opposite Party No.4 has no deficiency in service so far.

Point No.5. Whether the Opposite Party No.5 is liable to pay the claim amount, or otherwise in connection of the Policy and if so to what extent & to whom?

            In the instant case there appears no claim case by 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. Insurance Company as those goods were Insured by the Opposite Party No.5. Accordingly, the Opposite Party No.5 is liable to pay the claim amount, or otherwise against the policy and to the maximum extent of the policy amount i.e. Rs.5,00,000/- in respect of fire claim. The claim in respect of burglary appears to have not been proved as per Police Report and/or fact and circumstances of the case, so also on the basis of materials on record. Hence we have no opportunity to consider the aspect of Burglary though the Opposite Party No.3 has tried to dispute the Police Report and the Report of Surveyor in respect of claim of burglary.

            Thus this point is also decided partly in favour of the Opposite Party No.1 & 3 in respect of fire claim but against the above two Opposite Parties in respect of claim of burglary. The Opposite Party No.5 requires to open the closed insurance file to settle up the matters of claims as has been contended by the Ld. Advocate for the O.P.No.5.

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 conclusion in our considered view the Complainants i.e. the farmers who have filed the instant case for relief is entitled to get reliefs minimum in the behest of value of the jute goods of the relevant period at least the price assessed at the time of lodging the goods stored in the Godown minus the value of the jute of which the weight decrees due to lapse of time, or as per minimum rate/price of per quintal as per report of the O.P.No.4 i.e. The Assistant Agricultural Marketing Officer, (Administration), Dinhata, so that the farmers can survive and can cultivate the product jute and not beyond. Besides, the compensation due to deficiency in service on the part of Opposite Party Nos.1 & 3 directly/indirectly to the Complainants together with the litigation cost for filing the instant case. Reasonably, the complainants are entitled to get compensation by way of interest in respect of loan bank allows. It is admitted fact that due to such accidental fire all the parties have been affected.  

            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 limited provisions within which ambit this Forum is to function. Their claims and relief hence lies elsewhere.

            In respect of the Insurance Policy the amount is Rs.5,00,000/- the Surveyor Report is speaks loss if Rs.1,28,786/- due to fire.

            From the petition of Complainants No.1 to 4 it appears that each of them has taken pledge loan of Rs. 50,000/- i.e. 60% of the stored goods i.e. the value of the jute goods but they are supposed to re-pay the loan along with interest concerned to their bank if not yet repaid by the Complainants farmer to the bank in the mean time.

It is pertinent point to mention that there is no denial from the part of Opposite Party Nos.1, 2, 3 & 5 that the Complainants stored their product (jute) in the godown of the Opposite Party No.3 with the financial assistant of Opposite Party Nos.1 & 2. It appears from the record that the stored Seasonal Crops (Jute & Tobacco) of the said Gramin Gudam were duly Insured with the National Insurance Company where in 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 filled up 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 got silent.

Therefore, in our considered view the Opposite Party No.4 should be dismissed from this case, as it has no direct involvement with any deficiency in service. Though there may be negligence and dilatory tactics on the part of Opposite Party No.2 (bank) in deciding the disputes at the initial steps by not challenging the surveyors report but excepting the same without any protest and with intent to shift the liability on the shoulder of Opposite Party No.5, Complainants and also protecting the Opposite Party No.1 being the superior authority of Opposite Party No.1. Therefore, we find that Final order should be passed considering all aspects in the light of the provisions of the Consumer Protection Act, 1986 and Rules there under besides C.P. Regulations, 2005, fact circumstances and materials on record for just and judicious decisions specially where the C.P. Act is meant for primarily protection of the Consumer.

ORDER

Therefore, it is ordered that the complaint case be and the same succeeds in part with litigation cost of Rs.2,000/- each, Rs.20,000/- each towards compensation for deficiency in service, Rs.5,000/- each 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 jute in the godown, based on godown Receipts on the capital amount of Rs.3,47,033/- proportionately and in parity with the godown receipts, treating the same as investment. The O.P.No.1 & 3 are directed to pay the ordered amounts to the individual complainants No.1 to 4 severally and/or jointly (to the Complainant No.1 Shri Nripendra Nath Barman for self) and for Complainant No.2 Shri Subal Barman, 3. Shri Dhiren Barman & 4. Smt. Jyatsna Barman within a period of 60 days from the date of this order, failure of which the OPs. Shall pay @ Rs.40/- 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 aforesaid four 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, but it shall be complied with within the stipulated period of 60 days.

The Opposite Party No.5 i.e. Insurance Company is directed to open the Insurance Policy Claim file in respect of the claim of the Opposite Party No.1 & 3 i.e. the bank and godown and adjust the account in accordance with Law and procedure.

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 Party Nos.1 & 3 as well as the four Complainants shall jointly and/or severally shall pay cost @ Rs.20/- each and Rs.20/- each respectively for each day’s delay, if caused, by either of the parties jointly and/or severally on expiry of the aforesaid 60 days by depositing the accrued amount if any  in the State Consumer Welfare Fund, West Bengal.

The Insurance Company i.e. the O.P No.5 also shall strictly complied with the order of settlement by negotiation with the concerned parties, failure of which it shall be liable for cost @ Rs.20/- for each day’s delay and any such amount accrued shall be deposited to the S.C.W.F. in the like manner.

Let plain copy of this Order be supplied free of cost to the Complainant No.1 and the Opposite Party Nos.1, 3 & 5/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                                                 Redressa l Forum, Cooch Behar

              Member                                                                                               Member

   District Consumer Disputes                                                         District Consumer Disputes

Redressal Forum, Cooch Behar                                                  Redressal Forum, Cooch Behar