By :  SMT. BANDANA ROY, PRESIDENT

           The case of the petitioner brief is that she is owner of a small shop named and styled as “Dipali Enterprise” which she runs under valid license for earning her living hood. She took a loan from the OP no1 on 26.06.13 under the scheme DDP –GEN-IND 2YR to 3 YR vide A/C No. 50159872775 which has been renewed and renumbered as A/C No. 50159662994 for product GSS TL Oth. GSS IND and SER, at a higher interest rate. After taking the loan the complainant never failed to repay the instalments of repayment. The OP No.2 is an Insurance Company providing shop-keeper Package Policy upon saleable items and earthquake cover and is a joint venture with the OP No.1.  It is the case of the complainant that without informing the complainant the OP No.1 initiated an insurance policy under the OP no.2 for a sum of Rs. 2,40,000/- only with an yearly premium which was being regularly deducted and realized by the OP nol.1 from the A/C of the complainant. Unfortunately in the night of 17.10.16 shop of the complainant was stolen and goods worth of Rs. 2, 50,000/- approximately was stolen. The complainant lodged an FIR at Tamluk PS vide case No. 755/16 dated 18.10.16 U/sec. 380 IPC. Complainant also intimated the OP no.1 instantly about the theft and claimed the amount of theft but surprisingly the OPs informed her that due to mistake the policy of the complainant was not renewed for the year 2015-2016. So, the complainant is not entitled to get the claimed amount from the OPs. It is the further case of the complainant that she had always sufficient balance in her A/C from where the premium of the Insurance was realized automatically.

          Thereafter the complainant sent demand notice claiming the amount from the OPs but still then they did not bother to take any effective steps.

Hence, this case for gross deficiency of service on the part of the OPs praying for the insured amount of Rs. 2,40,000/- and other reliefs.

The OP no.1 has contested the claim application by filing written version and denied all the material allegations of the complaint petition and contended that the claim application is not maintainable and it is liable to be dismissed summarily. The specific case of this OP is that the complainant was responsible to pay the premium of the policy; she was negligent in doing so. This OP stated that during the previous years, always the complainant used to pay the premiums on getting prior information from the Insurance Co. On 04.06.2016 as usual the Insurance Co. gave intimation to the complainant for paying the premium, but the complainant did not turn up to continue the policy.

Under the above circumstances, the OP no.1 has prayed for dismissal of the complaint petition.

The Op no. 2 has also contested the case by filing written version. This OP also denied all the material allegations of the complaint and contended inter alia that the alleged shop of the complainant is not covered by any insurance  policy, issued by this OP Co. on the date of incident as alleged by the complainant. So, this OP prays for dismissal of the complaint as there was no deficiency of service on their part to indemnify the loss of the complainant.

The points for consideration in the case is whether the case is maintainable and whether the complainant is entitled to get the reliefs as prayed for.

                                                                                  DECISION WITH REASONS.

Both the issues are taken up together for discussion for the sake of convenience.

         Admittedly the complainant took a loan from the OP no1 Bank but the OP no.1 denied that it was a term loan. OP No.1 also alleged that the complainant has to prove that there was an incident of theft in her shop as because it is a criminal case and is sub-judice matter yet to be proved. It is also stated that in column no. 8 of the agreement of loan it is clearly mentioned that complainant should have taken the effort to pay the insurance premiums in due time. But the complainant did not pay the same.

Admittedly the complainant took a loan from the OP No.1 on 26.06.13 under the scheme “DDP–GEN-IND-2 yr to < 3 Yr INR” Vide A/C No. 50159872775 with effective date 26.06.13, date of maturity 26.06.16. But in course of repayment the OP No.1, by using undue influence without informing the complainant properly initiated the insurance policy under the OP No.2, a joint venture between the OP No.1 and OP no.2 vide Policy No.2939/53361544/01/000 for a sum of Rs.2,40,000/-, renewal premium of Rs. 1378/-only and the said premium of insurance was regularly deducted by the OP No.1  from her bank account.  On the contrary it is asserted by the OP No. 1 that it was the liability of the complainant to pay the annual premiums and in this regard bank had nothing to do. It is further asserted by the OP no1 that every year the OP no.2 Insurance Co. issued prior intimation of due of premiums and the complainant used to pay the premiums thereafter, but during the year of alleged burglary in the shop of the complainant, she did not pay the premium of insurance in spite of being noticed earlier by the OP no 2. So, the case of the complainant is liable to be dismissed as she failed to continue the insurance.

It may be mentioned here that the loan agreement has not been filed in the case by either of the parties.  So it cannot be said what was in the clause of the agreement.

The complainant has stated that since initiation of the loan agreement  the complainant did not fail to pay any single instalment of repayment of the bank loan till date. The Complainant says that the OP No.2 is a Insurance Co a joint venture of the OP no.1 who provided shop keepers package policy without explaining the complainant properly for a sum of Rs. 2,40,000/-only with yearly premium. The premiums were regularly realized by the OP no 1 for the year 2013, 2014 and 2015 in favour of the OP no. 2 from the account of the complainant, but it was not deposited due to fault of the OP No.1 for the year 2016 when the alleged incident of theft took place in the shop of the complainant on 17.10.2016 and materials worth Rs. 2,50,000/- had been stolen from the shop of the complainant. The complainant lodged FIR in Tamluk PS . Copy of FIR has been filed. The complainant stated that she immediately informed the O Pno.1 but due to negligence and mistake the OP no. 1 did not renew the insurance policy for the year 2015 – 2016.

Ld advocate for the OP no.1 submitted in their written version that the complainant had knowledge about the insurance premium and she did not pay the premium negligently.

Ld. advocate appearing for the complainant submitted that it was the responsibility of the OP no.1 bank to keep the insurance policy renewed from time to time as per agreement of the sanction of loan and failing to keep the shop insured by the bank after advancement of the loan is deficiency of service and the aggrieved party  is  entitled to get the compensation.

Ld lawyer for the OP no.1 submitted that it is true that bank provides the cash credit loan as per banking norms but the complainant had to renew the insurance policy. It is also argued that the bank cannot take role of insurance Co. which the complainant is claiming.

Ld. Advocate appearing for the OP no. 2 Insurance co. submitted that there is no case against them in the complaint petition and the question of making payment    of reimbursement towards loss of the complainant does not arise at all.

It is fact that the complainant has been engaged in transaction with the OP no. 1 bank and so there is relationship of customer and service provider between the bank and the complainant. The bank cannot treat the complainant otherwise than a customer.

As the loan agreement has not been produced we cannot presume what was there. There is, however, no written evidence confirming the fact of such giving consent to the OP no.1 by the complainant for obtaining the insurance policy from the OP no.2. As the complainant gave advocate’s notice to the OP no.1 that OP no.1 had an agreement of insurance with the OP no.2 without the knowledge  of complainant it can be presumed that said insurance policy has been kept in the custody of the bank  and complainant had no access to the documents of insurance policy. It may be guessed that OP no1 was fully aware about the validity period of insurance policy and it was more reasonable for them to come for renewal of the insurance policy. Though the complainant  should have been vigilant  about the insurance the issued related to her stocks of goods against any untoward incident but it cannot be disbelieved that the complainant had  no knowledge  of the insurance as because the complainant is as lady and also a layman.  In the present case  had the OP no.1 acted with promptitude and insured the stock of the complainant in time, the benefit of insurance would have been available to the complainant. In the present case it is seen that the OP no. 1 did not take proper care to kept the insurance policy renewed in time. The complaint petition is therefore, maintainable.

In summing up the above discussion we are of the considered view  that the complainant has reason to claim compensation from the bank for deficiency of their service but the complainant  was also responsible for timely renewal  of the insurance policy which was not carried out.

The complaint, therefore can be allowed in part.

Hence, it is

                                                                                                   ORDERED

THAT the CC No 92 of 2017 be and the same is allowed in part on contest against the OP no.1 and dismissed against the OP No.2 on contest

The complainant is not entitled to get any relief relating to her claim of insurance.

The OP no.1 is directed to pay Rs. 40,000/-to the complainant as compensation and loss suffered by her and mental agony and a sum of Rs. 8000/- as litigation cost within one month from the date of this order failing which the OP no1 will have to pay punitive charge of Rs. 100/- per day which would be payable to the Consumer Welfare Fund.

Let copy of judgment be supplied to all the parties free of cost.