DOF.25.4.08 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Prethakumari: Member Smt.M.D.Jessy: Member Dated this, the 18th day of May 2010 C.C.No.85/2008 N.K.Suhas Nahoodikandiyil House, Vadakkepoyiloor, Thalassery Taluk. (Rep. by Adv.M.Jayakrishnan) Complainant 1. Manger, North Malabar GraminBank, Kallikkandy. 2. The Branch Manger, United Indian Insurance Company, Thalassery branch. (Rep. by Adv.V.V.Gopinathan) Opposite party O R D E R Sri.K.Gopalan, President This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite party to pay Rs.1, 25,000/- as compensation. The case of the complainant in brief is as follows: Complainant availed a loan of Rs.50, 000/- from 1st opposite party on 27.5.2006. At that time of availing the loan the 1st opposite party agreed to pay the monthly premium of Insurance policy which covers the entire accidental risks to the compliant for the above said business. On 18.12.06 at the midnight the complainant’s shop was set fire and all the articles of the complainant on the shop was lost. The complainant sustained a loss of Rs.1, 00,000/- in this accidental fire. Complaint was lodged before the SHO Kolavallur, and the Kolavallur police have registered a crime as 101/2006. Complainant submitted required documents before the 2nd opposite party insurance company but they did not consider it and settle the claim. Hence legal notice was sent to opposite parties on 19.11.2007 claiming Rs.1, 00,000/-, opposite parties did not sent any reply. The opposite parties cheated the complainant. 1st opposite party who has agreed to pay the insurance premium has also cheated the complainant. Hence this complaint. Pursuant to the notice opposite parties 1 and 2 entered appearance and filed version separately. But 1st opposite party subsequently remains absent as consequence of which the 1st opposite party was declared as exparte. 1st opposite party filed version in the form of a report which is briefly stated as follows: The complainant availed loan from the Bank but there was no agreement to pay monthly premium of insurance policy. The shop was insured earlier since the party had availed loan before also. The bank did not get any intimation for renewal of policy on expiry of the existing policy. The premium amount is determined by the insurance company and varies from time to time. There are several loan accounts and the amount of premium is to be intimated. They had enquired the matter and contacted the agent and the details were collected and debited the premium to all the accounts on 7.12.06 and DD for Rs.29138/- was issued. Since the agent did not come to collect the DD it was sent by post. Mr.Suhas had not submitted his claim for insurance to the Bank. He had submitted the claim and other documents to the insurance company. The survey was conducted by them. After that the insurance company informed him that the policy was not renewed. The Bank had no intimation when the matter of non receipt of DD was informed. They had taken necessary steps and issued duplicate DD for the amount. They had not received any intimation for non payment of the insurance claim. The contentions of 2nd opposite party in brief are as follows: The opposite party denies the insurance coverage of the alleged incident. Neither the complaint nor the first opposite party furnished the insurance particulars pertains to the shop at the relevant time of the incident either to this opposite party or before the Forum. This opposite party has not received any insurance premium either from the complainant or from the 1st opposite party to cover the risk against the shop of the complainant at the relevant time of the alleged incident. It is the bounden duty of the1st opposite party to remit the requisite premium to the insurance company to cover the risk against their customers/borrowers on the basis of the contract/standing instructions between the customer and the Banker. On the reason of non-remittance of the premium for insurance policy by the banker as per terms and conditions of the contract/standing instructions between the customer and the banker, the 1st opposite party, North Malabar Gramin Bank, Kallikkandy branch alone is responsible for the lapses on the part of the1st opposite party. This opposite party conducted a thorough check when 1st opposite party enquired through Telephone to this opposite party about the receipt of DD dated 7.12.06 for Rs.29138/- paid towards insurance premium. But it is fond that 2n opposite party received no such DD. Thus 2nd opposite party is not liable to cover the risk without receiving the insurance premium. On investigation it is revealed that fabricated entry has been made in the postal outward register of the1st opposite party to make others believe that the 1st opposite party had sent the demand draft on 17.12.06 to the 2nd opposite party with an intention to get the 1st opposite party bank absolved form the liability. If it is fond that the complainant is entitled for compensation, then the first opposite party alone is liable for the same. Hence to dismiss the case against 2nd opposite party. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complainant is entitled to get the relief as prayed for? 3. Relief and cost. The evidence consists of oral evidence of complainant as PW1 and Exts.A1 to 6 and X1(a) to (f) on the side of complainant. 1st opposite party declared as exparte and no evidence adduced by 2nd opposite party. Issue Nos. 1 to 3 Admittedly complainant availed loan from the bank 1st opposite party. Complainant’s case is that he had availed Rs.50, 000/- from 1st opposite party and at the time of availing the same the 1t opposite party has agreed to pay the monthly premium of Insurance policy which coves the entire accidental risks to the business of complainant. But the Bank did not pay the premium in time. Hence the Insurance Company denied the insurance amount to complainant. 1st opposite party on the other hand admitted that complainant had availed loan but there is no agreement to pay premium for the policy. 2nd opposite party contended that they have not received the premium and it is the bounden duty of 1st opposite party to remit the requisite premium to the insurance company to cover the risks against their customers on the basis of standing instructions between the banker and the customer. Complainant adduced evidence by filing proof affidavit in lieu of chief. He has stated that on 27.5.06 he has availed Rs.50, 000/- from 1st opposite party and 1st opposite party agreed to pay monthly premium to insurance company and thus started to pay the amount. 1st opposite party in his version filed in the form of a report explained that we had enquired the matter and debited the preimu8m to all the accounts on7.12.06 as shown in the list enclosed and DD No.771352/52 for Rs.20138/- was issued. Since the agent did not come to collect the DD we had sent by post”. This statement makes it clear that the contention of 1st opposite party that there was no agreement to pay the monthly premium of Insurance policy is absolutely false. If it is true there is no need to send the DD. 1st opposite party if claims that the DD has sent that is a plain admission that there was an agreement to pay the monthly premium. The statement of opposite party is a declaration that there is a liability borne out of the agreement to pay such amount of DD to 2nd opposite party or other wise there is no need to send such an amount to 2nd opposite party. List of details of insurance premium for renewal of policies produced by the 1st opposite party together with the version shows its 23rd entry that the name of Suhas.M.K (24/06 Rs.409) which is a clear evidence that 1st opposite party is bound to pay the amount to 2nd opposite party. Moreover the 1st opposite party bank has also stated that “When the matter of non receipt of the DD was informed we had taken necessary steps for ensuring non payment from our Tellicherry Branch and after verifying the position issued duplicate DD for the amount”. This statement clearly brings out the contractual liability of the 1st opposite party bank for the payment premium for which no other evidence is required. 2nd opposite party has also stated in his version that 1st opposite party enquired through telephone about the receipt of DD No.7713352 dt. 7.12.06 for Rs.29138/-. Now the only question arose is whether 2nd opposite party has received the amount or not? If received when? 2nd opposite party specifically pleaded that they have not received any insurance premium either form the complainant or from the first opposite party to cover the risk against the shop of the complainant at the relevant time of the alleged incident. 1st opposite party has not adduced evidence to show that they have remitted the amount. At least the postal acknowledgement should have been produced by1st opposite party in order to prove that the duplicate DD for the amount was sent to 2nd opposite arty. 1st opposite party purposefully remained absent without conducting the case. They are not at all interested to conduct the case since they have no material to prove that the amount has been remitted to 2nd opposite party. As far as a bank is concerned every financial transaction is a part of document readily available for reference. But in the instant case they are not able to produce the relevant document in connection with the payment of premium only because they failed to remit the amount. Ext.A4 is the legal notice sent by the complainant informing the denial of the insurance amount by the Insurance company the second opposite arty and calling upon to pay the compensation. Ext.A5 (b) is the postal receipt that proves the notice was sent to 1st opposite party. But 1st opposite party sent no reply. Non sending of reply to legal notice in the light of the above said non payment of amount is undoubtedly a deficiency in service on the part of 1st opposite party. Ext.A3 is the letter issued by1st opposite party to the sub Inspector of Police, Kolavallur police station proves that the complainant N .K.Suhas availed a loan of Rs.50, 000/- from the bank on 27.5.06 under No.RCC.24/06 for his stationery shop. Since it is an admitted fact the availing of loan is also stands proved. Ext.A1 first Information Report Kolavallur police station and Ext.A2 report of the Fire force proves that at the midnight of 18.12.06 the complainant’s shop w as set fire. Ext.A1 to A3 proves the incident beyond doubt. The available evidence shows that 1st opposite party did not pay the insurance premium. Premium if not paid 2nd opposite party cannot be held liable. Hence 1st opposite party is responsible for the denial of the insurance claims due to the deficiency of service on his part. Hence we hold that 1st opposite party is liable to meet the loss sustained by the complainant. Ext.A2 shows the details regarding the loss as follows: AS-¦Â hne-IÄ (1) DÄs¸« hkvXp-¡Ä 1 e£T (2) ASp¯v Xo ]nSn-t¨-¡m-\n-S-bp-m-bn-cp-¶h 8 e£T (3) sI«n-S-§-fpsS \mi-\-jvST 5000 cq] (4) AIs¯ km[-\-§-fpsS \mi-\-jvS-§Ä 15000 cq] Ext.A2 is the only document that helps to assess he direct loss sustained by the incident. Of course, there may be some indirect loss and mental agony. But complainant has not produced any other evidence other than Ext.A2 in order to assess the actual loss. Anyhow Ext. (c) reveals that the insured articles cost about Rs.76, 200/-. Thus we are of opinion that there is a loss of an amount of Rs.30, 000/- out of the fire accident. Complainant is also entitled for an amount of Rs.15, 000/- as compensation for mental agony together with Rs.1000/- as cost of this proceedings. Hence the issues 1 to 3 are found in favour of complainant and order passed accordingly fixing entire liability on the shoulders of 1st opposite party. In the result, the complaint is allowed directing 1st opposite party to pay an amount of Rs.45,000/- (Rupees Forty five thousand only)as compensation and a sum of Rs.1000/-(Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order. Complainant is also entitled for 10% interest on the amount of compensation from the date of filing of this complaint ie.25.4.08 till the date of payment of the amount at the instance of failure on the part of 1st opposite party in payment of the amount within the period directed. Complainant is at liberty to execute the order as per the provisions of consumer protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of FIR in crime No.101/06 of Kolavallur police A2.Copy of fire report of Kerala fire force A3.copy of letter issued by OP to SI of police A4.Copy of lawyer notice sent to OPs A5 & 6.Postal receipt and AD Exhibits for the opposite parties: Nil Exhibits for the court X1.Records submitted by NMG Bank, Head office, application form, terms and conditions, copy of ledger extract, insurance policy etc. Witness examined for the complainant PW1.Comp-lainant Witness examined for the opposite parties: Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur | 
