Sri. Jacob Stephen (President):

                   Complainant has filed this complaint against the opposite parties for getting a relief from the Forum.

                   2. The complainant’s case is that he is the Proprietor of M/s. Kaygees Rubber Traders, Konni dealing in the business of purchase and sales of rubber sheets and scraps and he started the said business in the year 2006.  The complainant is provided with cash credit facility by the said 1^st and 2^nd opposite parties from 2006 onwards.  The said facility was given by the opposite parties on the basis of the hypothecation of the stock in trade and immovable properties owned by the complainant and his sureties.  Accordingly, the 1^st and 2^nd opposite parties granted an amount of Rs.15 lakhs on 27.04.2006.  Thereafter, it was enhanced to Rs. 35 lakhs on 30.06.2008, Rs.49 lakhs on 31.03.2010 and Rs.70 lakhs on 30.03.2013 on executing proper documents in favour of the 1^st and 2^nd opposite parties as required and desired by the bank.  As per the loan agreement, the borrower shall insure and keep insured all hypothecated assets in the joint name of the borrower and the bank against risk of fire, theft etc. as may be specified by the bank from time to time for the full market value with an insurance company approved by the bank which is the addl. 3^rd opposite party and the insurance policies, cover notes, premium receipts etc. shall be delivered to the bank and if the borrower fails to takes the policy, the bank may at its sole discretion, but without being obliged to do so, take of the insurance and debit charges, costs and connected expenses from the borrowers account and the borrower shall be bound to make payment of such amount forthwith.  Even though it was mentioned in the agreement as above, the 1^st opposite party used to take out the insurance policies voluntarily, even without the knowledge of the complainant and kept the policy documents in the bank even without issuing a copy of the same to the complainant.  This was the practice adopted by the 1^st opposite party from the very inception of the loan.  As such the 1^st opposite party has taken out, insurance policies from 2006 onwards and the 1^st opposite party used to take the policies much earlier to the expiry date of the policy.  While so, on 08.09.2012 at about 11 p.m two smoke houses filled with rubber sheets and scrap  which are hypothecated to the bank caught fire.  Adoor Fire Force and Konni Police rushed to the spot.  But in spite of their best efforts, 9179.900 kgs. rubber sheet costs Rs.16,06,482.50/- was destroyed in the fire.  On the next day itself, the complainant went to the bank and informed about the mishap.  But to the utter shock of the complainant, the 1^st opposite party revealed that they missed to renew the last policy which expired on 11.08.2012.  The complainant was under the belief that the 1^st opposite party would have renewed the policy as usual.  The non-renewal of the complainant’s policy is a clear deficiency in service on the part of the 1^st and 2^nd opposite parties, which caused financial loss and mental agony to the complainant.  So the complainant sent a registered notice on 12.09.2012 to the 1^st opposite party for getting compensation which was received by them on 13.09.2012.  But they have not settled the matter.  Hence this complaint for the realization of the amount of Rs.16,06,482.50  as the cost of rubber sheets lost in the fire with 12% interest and Rs.2,50,000/- as the cost of the smoke house destroyed in the fire with 12% interest along with compensation of Rs.1 lakh for mental agony with cost of this proceedings from the 1^st and 2^nd opposite party.

                   3. 1^st and 2^nd opposite parties filed a common version and Addl. 3^rd opposite party filed a separate version.

                   4. The main contentions of the 1^st and 2^nd opposite parties is as follows: 1^st and 2^nd opposite parties admitted the cash credit facilities provided to the complainant and its enhancement of Rs.70 lakhs as on 30.03.2012.  According to the opposite parties, as per the terms and conditions of the loan agreement the complainant has to ensure the stocks hypothecated to the bank and the building, if any on the mortgaged property insured against fire, riot and strike risk with an approved insurance company in the joint name of the bank and the complainant and the policies should be handed over to the bank and the premium as and when become due should be paid from the account of the complainant.  The complainant had hypothecated the stocks of rubber kept in Shop No.KP/II/10724 at Konni, Shop No.KP/IV/11A at Kalanjoor and Shop No.VIII/311 and 322 at Malayalapuzha.  The complainant is in the habit of watching all the processes of the bank.  So also he is very keen in insuring the hypothecated assets in due time.  There is not even a single occasion that he failed to alert the answering opposite parties for the renewal of the insurance premium.  Therefore, the opposite parties had no occasion to renew the insurance policies of the complainant on their own volition.  At the same time, the opposite parties usually contact the customers who failed to insure/renew the policy and after obtaining their consent, the bank will renew the policy.  In case, the party does not co-operated with the bank, the bank shall issue registered notice demanding the renewal of the policy and intimate their intention to renew the policy at the option of the bank and their intention to deduct the insurance premium amount from their account.  In this case, the complainant is well aware of the fact that the insurance policies were expired on 11.08.2012.  But he had not cared to renew the policy.  It is admitted that the premium amounts required were debited from the complainant’s account as per the instructions of the complainant.  The bank has not taken security of the processing unit as it is highly inflammable and no bank will take security of such units as the insurance premium required will be highly excessive and the customer shall not pay the amount.  The averments that the smoke house and rubber sheet therein were completely gutted in fire is absolutely wrong.  The averment that the closing stock of rubber sheet was 14400.100 kg., and scrap was 1421.8 kg. is absolutely false as an amount of Rs.59,55,750/- is seen credited to the account of the complainant on 10.09.2012, which is the sale consideration of the rubber sheets and scrap of the complainant.  If such a sale was over, the quantum of stocks stated is absolutely false.  The allegation that the complainant met the bank on 09.09.2012 and told about the incident and opposite parties told the fact of non-renewal of the policy is false as he is well aware that the smoke house is not insured by the bank as it is not taken as security by the bank.  It is not obligatory on the part of the bank to renew the policy as it is the duty of the customer.  Further, if at all there is insurance, the smoke house is excluded from the policy.  Thus there is no negligence from the part of the opposite parties.  No harm is caused to the complainant by the non-renewal of the policy by the opposite parties.  The losses if any sustained to the complainant has to be borne by him.  The smoke house is an uninsured asset and hence the complaint is not entitled to get any insurance amount due to the fire occurred in the smoke house.  The answering opposite parties received a registered letter from the complainant on 12.09.2012 and a reply was also sent to the complainant.  The complainant approached this opposite parties seeking the chances of exploring a claim of insurance, but opposite parties convinced their inability to join with him in the matter of a fake claim.  Opposite parties are not liable to the complainant and complainant has no cause of action against the opposite parties.  The amount of claim has no legal basis.  Since opposite party has not committed any deficiency in service, complainant is not entitled to get any of the reliefs as prayed for in the complaint.  With the above contentions, opposite parties 1 and 2 prays for the dismissal of the complaint with their cost.

                   5. The main contention of the addl. 3^rd opposite party is as follows:  According to the addl. 3^rd opposite party, they are unnecessarily dragged into the proceedings as there is no allegations and no prayers against them.  Addl. 3^rd opposite party had issued shop keepers insurance policy for the period from 12.08.2011 to 11.08.2012 in favour of SBT insuring stock in trade etc. kept in shop No.KP 11/1072 (1729) of Konni Panchayat and  was no insurance coverage to the said properties on the date of fire occurred on 08.09.2012 and as there was no insurance policy, neither the complainant nor opposite parties 1 and 2 intimated the matter to addl. 3^rd opposite party.  There is no deficiency in service from the part of the answering opposite party as no service is provided to the complainant or opposite parties 1 and 2 by the answering opposite party.  With the above contentions, addl. 3^rd opposite party also prays for the dismissal of the complaint with their above cost.

                   6. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?

                   7. The evidence of this complaint consists of the oral depositions of PW1, PW2 and DW1 and Exts.A1 to A24 series and B1 to B3.  After closure of evidence counsel for the complainant filed argument note and both sides were heard.

                   8. The Point:- The complainant’s case is that he is the Proprietor of M/s. Kaygees Rubber Traders, Konni and he is a customer of the 1^st opposite party from 2006 onwards as the 1^st opposite party had provided credit facilities to the complainant.   The present credit facility is in the tune of Rs.70 lakhs as on 30.03.2012.  The said facility is provided as per the hypothecation agreement executed between the complainant and the 1^st opposite party.  The security given by the complainant for the above said credit facility is the landed property and the buildings their in owned and possessed by him and his sureties and the stock in trade.  It was stipulated in the loan agreement that the complainant has to insure and keep insured the hypothecated assets in the joint name of the complainant and the bank against risk of fire, theft etc. for the full market value with an insurance company approved by the bank and if the borrower fails to effect such insurance, the bank may at its sole discretion, but without being obliged to do so, take out the insurance and debit the expenses from the complainant’s account.  Though it was mentioned like this in the agreement, the 1^st opposite party used to take all the policies in the name of the complainant and kept the policy documents with them without issuing even a copy of the same to the complainant.  Since this was the practice followed by the 1^st opposite party from 2006 onwards, the complainant is in the belief that the 1^st opposite party had taken the insurance continuously and without any break.  While so on 08.09.2012, his smoke house situated in Survey No.305/1 in Block No.33 of Konni Village wherein rubber sheets and scrap stored caught fire and the rubber sheets weighing 9179.900 kgs. worth Rs.16,06,482.50 was totally destroyed in the fire in spite of the earnest efforts of the fire force and police.  The said landed property and the smoke house therein and the rubber sheets and scraps stored in the said smoke house are also hypothecated with the bank.  Since the above said hypothecated assets are insured, the complainant met the 1^st opposite party on 09.09.2012 and informed about the mishap and for starting the process for getting the insurance claim.  But to the utter shock, opposite party told him that they missed to renew the last policy which expired on 11.08.2012.  The complainant was under the belief that the 1^st opposite party would have renewed the policy of the hypothecated assets as usual.  The non-renewal of the policy by the 1^st opposite party is a clear deficiency in service, which caused financial loss and mental agony to the complainant and hence opposite parties 1 and 2 are liable to the complainant for the same.  Therefore, the complainant prays for allowing this complaint. 

                   9. In order to prove the case of the complainant, the complainant filed a proof affidavit in lieu of his chief examination along with a series of documents.  On the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced are marked as Exts.A1 toA24 series.  Ext.A1 series (A1 to A1(b) ) are the valuation reports in respect of the properties hypothecated by the complainant in connection with the loan transactions with the 1^st opposite party, which is prepared by the approved valuer of the 1^st opposite party.  Ext.A2 series (A2 to A2(k) ) are the copy of the complainant’s account with the 1^st opposite party from 2008 to 2012 showing the debits made by the opposite party for taking the insurance policy.  Ext.A3 is the letter dated 10.09.2012 given by the complainant to the 1^st opposite party requesting the 1^st opposite party for taking steps to get the insurance claim.  Ext.A4 is the copy of the registered letter dated 12.09.2012 given by the complainant to the 1^st opposite party requesting him to issue the copies of the documents connected with the hypothecated properties, hypothecation agreement and the insurance policy certificates.  Ext.A5 is the copy of the registered letter dated 12.09.2012 given by the complainant to the 3^rd addl. opposite party demanding the copies of the insurance documents in connection with the complainant’s insured assets.  Ext.A6 series (A6 to A6(d) ) are the insurance policy certificates and the policy schedules issued by the 3^rd addl. opposite party in the name of the complainant during the period from 12.08.2010 to 11.08.2012.  Ext.A7 is the hypothecation-cum working capital agreement dated 30.03.2012 executed by the complainant and 1^st opposite party.  Ext.A8 is the enquiry report dated 24.09.2012 issued by the inspecting Asst. Commissioner, Commercial Taxes, Pathanamthitta in the name of the  complainant showing the loss of rubber sheets due to the fire incident as Rs.15,75,000/-.  Ext.A9 is the fire occurrence report No.143/12 dated 09.09.2012 issued from Fire & Rescue Station, Adoor.  Ext.A10 series (A10 and A10(a) ) are the FIR and the mahazar prepared by Konni Police in connection with the fire incident.  Ext.A11 is the certified copy of memorandum of deposit of title deeds dated 28.03.2012 signed and submitted by the complainant before the 1^st opposite party.  Ext.A12 is the stock register of the complainant for the period from 2012-2013.  Ext.A13 is a copy of an application dated 18.02.2011 submitted by the complainant before the Deputy Director, Rubber Board, Kochi seeking sanction to use the newly constructed Building of the complainant near to building No.1072 A of Konni Panchayat, Ward No.II for stocking and processing rubber sheets and scrap.  Ext.A14 is the sanction letter dated 25.02.2011 issued from Rubber Board on the basis of Ext.A13 application.  Ext.A15 is the photocopy of the sale deed No.965/10 of SRO, Konni executed by one Sarathchandranath in favour of the complainant in respect of 8.91 Ares of land in Re-survey No.305/1 of Konni Village.  Ext.A16 is a letter dated 18.09.2012 issued by the 1^st opposite party in the name of the complainant showing the various buildings covered in the hypothecation agreement.  Ext.A17 is a copy of letter dated 28.10.2013 submitted by the complainant before the addl. 3^rd opposite party for issuing the certified copies of final receipts issued to the 1^st opposite party on account of the premium amount received by 3^rd opposite party from the 1^st opposite party on behalf of the 1^st complainant’s firm during 2006-2012 and the copies of documents based on which the policies were issued covering the security properties furnished by the 1^st opposite party for the complainant’s firm during 2006-2012.  Ext.A18 is the copy of letter dated 28.10.2013 submitted by the complainant before the 1^st opposite party for getting the details of the premium payments deducted from the complainant’s account and remitted to the addl. 3^rd opposite party for insuring the security properties of the complainant’s firm during 2006-2012 and the copies of the receipts issued by the addl. 3^rd opposite party in connection with the above transactions.  Ext.A19 is the copy of application dated 04.11.2013 under Right to Information Act submitted by the complainant before the Public Information Officer of 1^st opposite party for furnishing the information’s in respect of Ext.A18 application.  Ext.A20 is the copy of an application dated 04.11.2013 under Right to Information Act submitted by the complainant before the Public Information Officer of the 3^rd addl. opposite party seeking the information’s sought for in Ext.A17 application.  Ext.A21 is a letter dated 04.10.2012 issued by the 3^rd addl. opposite party in the name of the 1^st opposite party showing the details of the available policy documents relating to the complainant’s firm.  Ext.A22 is a copy of an insurance policy No.101700 for the period from 12.08.2011 to 11.08.2012 issued by the 3^rd addl. opposite party in the name of the complainant through the 1^st opposite party.  Ext.A23 is an insurance certificate and connected documents issued by SBI General Insurance in favour of the complainant showing insurance of the complainant’s firm from 12.09.2012 to 11.09.2013.  Ext.A24 series (A24 to A24(i) ) are the certified copies of cash receipts issued by the addl. 3^rd opposite party in the name of the 1^st opposite party showing the receipt of premium amount received by them from the 1^st opposite party for different customers during 2008-2012 and the policy certificates issued by them in favour of the complainant during 2008-2011.  Apart from the above evidences, one witness, the Divisional Manager of Addl. 3^rd opposite party, was also examined for the complainant as PW2. 

                   10. On the other hand, the contention of the 1^st and 2^nd opposite parties is that they have provided cash credit facilities to the complainant for doing the business of rubber sheets and scraps from 2006 onwards and the limit of the cash credit facility was enhanced periodically and the cash credit facility was given on the security of the hypothecated properties owned and possessed by the complainant and his sureties and on the security of the stock in trade.  As per the terms and conditions of the loan agreement, the complainant has to ensure that the entire assets hypothecated should be insured with an insurance company approved by the 1^st opposite party.  Accordingly, the complainant had insured the said assets with the 3^rd addl. opposite party in the joint name of the complainant and the 1^st opposite party.  It is also stated in the loan agreement that in case the borrowers failed to insure/renew the policy, the opposite party will contact them in person and having received their consent the bank will renew the policy.  If the party does not co-operate with the bank, the bank shall issue registered notice with acknowledgment due demanding the renewal of the policy within a stipulated time and intimate their intention to renew the policy at the option of the bank and their intention to deduct the insurance premium from their account.  This was the usual practice followed by the bank.  But the opposite party had no occasion to alert the complainant for renewing his insurance policy as the complainant was very vigilant in insuring the hypothecated assets in due time.  The complainant is well aware of the fact that the insurance policy was expired on 11.08.2012.  But he has not cared to renew the policy.  All debits towards insurance premium as made are as per the instructions of the complainant.  Thus the 1^st opposite party has no responsibility for renewing the complainant’s policy and hence they are not liable for the losses of the complainant caused due to the fire, and due to the non-renewal of the policy.  Moreover, the smoke house wherein the fire incident occurred is a processing unit and the bank has not taken the said unit as a security for the cash credit facility.  The property alone is taken as the security by the bank.  Therefore, the issue as to who is the party negligent in un-insuring the article is irrelevant in this case.  The complainant’s claim that the closing stock rubber sheet as on 08.09.2012 is 14,400 kg., is not correct as his account shows a credit for Rs.59,55,750/- on 10.09.2012 which is the sale consideration of the rubber sheets and scrap rubber of the complainant.  If such a sale was over the quantum of stock stated as on 08.09.2012 is absolutely false.   The claim that the smoke house and rubber sheets were completely gutted in the fire is also wrong.  There is no need of renewal of the policy by the bank as it is the duty of the customer.  If at all there is insurance the smoke house is excluded from the policy.  Thus there is neither callousness nor negligence from the part of the opposite party.  No harm is caused to the complainant by any of the acts of the opposite parties.  The complainant is not entitled to get the insurance amount on account of the fire break in the smoke house as it is an un-insured asset.  Opposite parties are not liable to compensate the loss of the complainant even if he sustained any loss on account of an un-insured matter.  With the above contentions, opposite parties 1 and 2 argued for the dismissal of the complaint.

                   11. In order to prove the contentions of opposite parties 1 and 2, the Chief Manager of the 1^st opposite party is filed a proof affidavit in lieu of his chief examination for opposite parties 1 and 2 along with 3 documents.  On the basis of the proof affidavit, he was examined as DW1 and the documents produced are marked as Exts.B1 to B3.  Ext.B1 is the copy of the sanction letter dated 20.03.2012 issued by the 1^st opposite party in the name of the complainant showing the enhancement of the credit facility to the tune of Rs.70 lakhs.  Ext.B2 is a letter dated 18.09.2012 issued by the 1^st opposite party in the name of the complainant showing the buildings covered in the hypothecation.  Ext.B3 is the postal acknowledgment card dated 21.09.2012 issued by the 1^st opposite party which is acknowledged by the complainant.

                   12. Addl. 3^rd opposite party has not adduced any oral or documentary evidence.  But they cross-examined PW1 based on their written version. 

                   13. On the basis of the contentions and arguments of the parties, and on the basis of the documents produced by the parties it is seen that the complainant is a borrower of the 1^st opposite party from 2006 onwards.  The argument of the complainant is that the 1^st opposite party sanctioned the loan on the security of the landed properties and the buildings therein owned and possessed by the complainant and his sureties and the stock in trade consisting of the rubber sheets and scrap kept in the hypothecated properties and as per the hypothecation agreement, the bank has to insure the entire hypothecated properties at the expenses of the complainant.  Accordingly, the 1^st opposite party had taken insurance policies regularly from addl. 3^rd opposite party from 2006 onwards.  The premium amounts were also debited by the 1^st opposite party from the complainant’s account.  The last such policy was expired on 11.08.2012.  Thereafter, the 1^st opposite party has not renewed the policy and the said non-renewal is not communicated to the complainant also.  So the complainant’s insurance claim for the losses occurred on 08.09.2012  due to the fire occurred in his smoke houses is lost and the total loss due to the said fire incident is Rs.16,06,482/-.  Such a loss is sustained due to the deficiency in service of the 1^st opposite party in not renewing the expired insurance policy.  According to the complainant, 1^st opposite party is liable to compensate the complainant for the losses sustained due to the fire incident.  The main arguments of the 1^st and 2^nd opposite parties is that taking of insurance policy and its renewal is the duty of the complainant and they are not responsible for taking or renewing the insurance policies of their borrowers.  However, if the borrowers fails to take the policy or fails to renew the policy, opposite parties inform this matter to the borrowers directly and by registered letter and after obtaining consent and permission from the borrowers, opposite parties insure or renew the policies of the hypothecated properties of the borrowers by debiting the borrowers account.  So they contended that there is no negligence from their part in this regard and hence they are not liable to the complainant.  Apart from the above contention, the 1^st opposite party raised another contention also.  According to the 1^st opposite party, the premises where the fire incident occurred is not an hypothecated property and hence even if any loss has been occurred, the 1^st and 2^nd opposite parties are not liable for the same as it is not an hypothecated property and is an uninsured asset. 

                   14. In view of the rival contentions of the parties, the questions to be considered is whether the fire affected assets are hypothecated properties and whether the 1^st opposite party bank is responsible for the non-renewal of the expired policy. 

                   15. For answering the 1^st question, we have perused certain documents marked in evidence and found the following.  As per Ext.A9, fire occurrence report No.143/12 dated 09.09.2012 issued from Fire Station, Adoor, the fire incident was occurred in a smoke house owned by the complainant and the rubber sheets kept therein was destroyed in the fire.  As per Ext.A10(a) scene mahazar dated 10.09.2012 prepared by Konni Police, the fire incident was occurred in Building No.KPII/980-B (1994) in Ward No.II of Konni Grama Panchayat, which is a godown and smoke house.  In the said scene mahazar four boundaries of the place of occurrence is also noted.  As per Ext.A1(d) valuation report dated 20.06.2011 prepared by the approved valuer of the opposite party, an extent of 8.91 Ares land in Re-survey No.305/1 of Konni Village owned and possessed by the complainant is an hypothecated property of the complainant.  Further the valuer has stated that in the said property, there is a godown for storing the rubber and there is a smoke house also.  The boundary of the said property is also noted in the said valuation report.  The boundary noted in Ext.A1(d) valuation report and the boundaries noted in Ext.A10(a) scene mahazar are almost same.  Ext.A11 memorandum of deposit of title deeds submitted by the complainant before the 1^st opposite party on 28.03.2012 shows that an extent of 8.91 Ares in Survey No.305/1 of Konni village owned by the complainant is given as the security and the boundaries of the said properties shown therein also tally with the boundaries shown in other documents such as Ext.A10(a), A1(d) etc.  It is also specifically stated in Ext.A11 that the complainant is hypothecating the said properties together with all improvements including the building existing or to be constructed thereon.  As per Ext.A14, the Rubber Board had given sanction to the complainant to use Building No.KPII/980-B(1994) as godown and smoke house.  The building number is seen in Ext.A10(a) and Ext.A14 are same.  Further, Ext.A7 hypothecation agreement and Ext.B1 sanction letter also shows that the fire affected assets are the hypothecated properties and the stocks kept therein and the same were hypothecated to the bank.  It is also stipulated that the building if any on the mortgaged property and the stock should be insured against fire etc. with an approved insurance company.  As per Exts.A7 hypothecation agreement row materials, stock in process, semi finished/finished goods, goods in transit, goods lying in the premises belonging to the borrower or lying elsewhere, goods stored and kept by anybody for and on behalf of the borrower in any godown, warehouse, storing places comes under goods and assets. The above said documents clearly shows that the landed properties of 8.91 Ares of land in Survey No.305/1 of Konni Village and all improvements including the building existing or to be constructed thereon and the stock kept therein are hypothecated in connection with the complainant’s loan transaction with the 1^st opposite party and the fire incident occurred is also in the said property and the said fire affected the building and the rubber sheets kept therein.  The fire affected assets are hypothecated assets.  The hypothecated assets has to be insured.  The fire affected assets such as the rubber sheet and the building was destroyed in the fire and thereby complainant has sustained losses on account of the loss of rubber sheet and the loss of the buildings.  Since there is no valid insurance for the fire affected hypothecated assets, on the date of fire, complainant is not entitled to get the insurance benefits from the insurance company.

                   16. The next question to be decided is who is responsible for the non-renewal of the expired insurance policy.  The complainant’s contention is that taking of the policy and the renewal of the policy is the responsibility of the 1^st opposite party at the cost of the complainant as per the terms and conditions of the hypothecation agreement.  Accordingly, the 1^st opposite party has taken the new policies and renewed the expired policies from 2006 onwards.  The 1^st opposite party never given any communications to the complainant for taking the policy or renewing the policy.  The usual practice followed by the 1^st opposite party is that they took the policy and the renew the policy by debiting the complainant’s account.  They never furnished any copy of any policy or they have not obtained the consent of the complainant for debiting his account.  So the complainant was in the belief that all the hypothecated assets are insured by the 1^st opposite party.  But he came to know about the non-renewal of the last policy expired on 11.08.2012 only on 09.09.2012, the date on which the complainant approached the 1^st opposite party for intimating the fire mishap occurred on 08.09.2012.  If there have been any communication regarding the expiry of the said policy, the complainant would have renewed the said policy.  So according to the complainant the 1^st opposite party had committed deficiency in service by not renewing the expired policy and hence he had sustained losses and 1^st opposite party is liable to the complainant.

                   17. On the other hand, the contention of the 1^st opposite party is that it is the duty of the complainant to take the policy and renew the expired policy.  The complainant was well aware that his last policy was expired on 11.08.2012.  But he had not renewed the policy.  Usually if the borrower fails to take the policy or to renew the policy, the bank will intimate the borrower directly about the insurance policy matters.  Even after this communication, if the borrower fails to take or renew the policy the bank will sent registered letters to the borrowers in this regard and their intention to take or renew the policy at the expense of the borrowers.  But in this case, since the complainant was very vigilant in this matters opposite parties have no occasion to alert the complainant in connection with the insurance policy matters.  So according to the 1^st and 2^nd opposite parties, they have not committed any deficiency in service to the complainant in the matter of insurance policy. 

                   18. In order to find out an answer to the above question, we have perused the available evidence in this regard.  On a perusal of Ext.A7 hypothecation agreement, it is seen that though there is a stipulation that the borrower is bound to insure the hypothecated assets, the bank has a duty to ensure that there should be valid insurance coverage to the hypothecated assets for the safety of the bank.  That is why the hypothecation agreement provided an authority to the bank for taking or renewing the policy, in case the borrower fails to take the policy or renew the policy.  The pleading in the version and the statement given in the proof affidavit of the 1^st and 2^nd opposite party will also shows that they had an authority for taking or renewing the policy of their borrowers.  The relevant portion in Para 15 of the version and Para 12 of the proof affidavit is as follows:- “If any customer failed to insure/renew the policy the opposite party will contact them in person and having received their consent the bank will renew the policy”.  If the party does not co-operate with the bank, the bank shall issue notice through registered post with acknowledgment due demanding the renewal of the policy within a stipulated time and intimating their intention to renew the policy at the option of the bank and their intention to deduct the insurance premium amount from their account.  But the bank has not adduced any evidence to show that they have done anything in accordance with the above pleading when the complainant’s policy expired on 11.08.2012. 

                   19. Further during the course of the trial of this case, the complainant filed a petition as I.A.No.7/13 against the 1^st and 2^nd opposite party for producing some documents including the insurance policy certificates in favour of the complainant from 2006 onwards and the request/applications to the opposite parties if any made by the complainant for the payment of insurance premium as contended by the 1^st and 2^nd opposite parties.  But opposite parties produced only 6 documents including the policy certificates for the year 2011-12 and 2012-13 and they also filed an affidavit as the reply to I.A.7/13, stating that the other documents are not available with them.  It is an irresponsible reply and the bank is not entitled to say that some documents in the files of a live credit facility is missing.  The non-production of the said documents shows that there is no transparency in the transactions and the dealings.  So it is clear that the taking of the policy and the renewal of the policy is the duty of the 1^st and 2^nd opposite party and they have not renewed the policy after deducting the premium amount.  Moreover, the oral deposition of PW2, Divisional Manager of 3^rd opposite party deposed before this Forum as follows:- “t]mfnkn XpS-§p-t¼mÄ proposal form.  D­m-Ipw.  _m¦p-IÄ \ÂIp¶ proposal form {]Im-c-amWv _m¦v hmbv]-¡mÀ¡v insurance policy \ÂIp¶-Xv.  C¯cw policy Ifp-ambn _Ô-s¸«v bmsXmcp CS-]m-Sp-Ifpw policy holder ambn insurance company \S-¯m-dn-Ã.  FÃm CS-]m-Sp-Ifpw _m¦pw insurance companyþbp-ambn am{X-am-Wv.  2006-þ2008 Ime-b-f-hn lÀPn-I-£n-bpsS t]cn R§Ä bmsXmcp insurance policyþbpw \ÂIn-bn-«nÔ.  This also goes to show that the 1^st opposite party is liable to renew the policy and they have not renewed the policy.  Further, the following deposition of DW1 is much relevant in this case.  The relevant portion is as follows:- “2012 BKÌv amk-¯n expire sNbvX t]mfn-knIÄ renew sN¿m³ insurance company-¡v \nÀt±iw \ÂIn-bn-«pt­m? Cà (A) witness adds addl.opposite party 3 ambpÅ tie-up Ah-km-\n-¨n-cp-¶-Xp-sIm-­mWv \nÀt±iw \ÂIm-Xn-cp-¶Xv”.  What prevented the 1^st opposite party to communicate the above matter to the complainant and what prevented them from renewing or taking a new policy in the place of the expired policy from any other insurance company and what prompted and who instructed the 1^st opposite party to take Ext.A23 policy in favour of the complainant with effect from 12.09.2012 from a new insurance company.  It is pertinent to note that the said policy starts from 12.09.2012 and the previous policy expired on 11.08.2012 and the fire incident occurred on 08.09.2012.  Moreover, whether the 1^st opposite party obtained any consent or permission from the complainant for taking Ext.A23 policy from another company?  If so, why they failed to produce evidence showing the consent and permission of the complainant for taking the said policy?  All the above said facts shows the irresponsibility of the 1^st opposite party.  Thus it is clear that the bank is responsible for the insurance policy matters and they failed to renew the policy and their failure resulted in an huge loss to the complainant.  It so happened due to the deficiency in service of the 1^st and 2^nd opposite party.  As there is no valid policy on 08.09.2012, the addl. 3^rd opposite party had no liability in this case.  Therefore, we find that this complaint is allowable against the 1^st and 2^nd opposite party.

                   20. Since this complaint is found allowable the remaining part of this judgment is to find out the quantum of compensation allowable to the complainant.  According to the complainant, he had lost rubber sheets worth Rs.16,06,482/- and Rs.2,50,000/- as the cost of the smoke house engulfed in the fire.  So he claimed the said amount with 12% interest and compensation of Rs.1 lakh and cost of the proceedings.  But 1^st and 2^nd opposite parties have a contention that the quantum of loss stated is absolutely false.  Though they have raised such a contention, they have not adduced any evidence to substantiate their contention, i.e. no evidence even to show that they have visited the spot immediately after or on any later occasion and prepared a report about the fire incident atleast for incorporating it with the files of the complainant who is borrower/customer of the 1^st opposite party.  This also is an irresponsible act of the 1^st opposite party.  However, though the complainant adduced some evidences for substantiating his loss on account of the rubber sheets,  he has not adduced any evidence to show the other losses.  So we are constrained to consider Ext.A8 enquiry report dated 24.09.2012 issued from the Commercial Taxes Department, Ext.A9 fire occurrence report and Ext.A10 series, FIR and FIS and Ext.A12 stock register attested by the Sub Inspector of Police, Konni and the Asst. Commissioner of Commercial Taxes.  As per Ext.A8, the loss of rubber sheets valued as Rs.15,75,000/- and as per Ext.A12 stock register the closing stock as on 08.09.2012 is 14400 Kgs. of rubber sheets.  But as per Ext.A9 fire occurrence report, the total loss is shown as Rs.14,35,000/- and as per Ext.A10 series FIR and FIS the total loss is shown as Rs.16,80,000/-.  Different documents shows different amounts.  As per Ext.A12, the closing stock as on 08.09.2012 is 14400 Kgs. and as per Ext.A10(a) mahazar 104 bundles of rubber sheets having 50 Kgs. per bundle is found in the godown as unaffected by the fire.  Since Ext.A10(a) mahazar was prepared on the very next day of the incident it can be treated as a reliable evidence.  Moreover, it is seen that Ext.A12 stock register is attested by the Sub Inspector and the Asst. Commissioner of Commercial Taxes immediately after the fire incident.  So Ext.A12 stock register is also a reliable document.  On a verification of Ext.A12 stock register and Ext.A10(a) scene mahazar, it is found that the rubber sheets lost in the fire incident is 9100 Kgs. and the total cost at the rate of 175 per Kg. is Rs.15,75,000/-.  So we find that the complainant had lost rubber sheets worth Rs.15,75,000/- in the fire incident.  At the same time, in the absence of any cogent evidence showing the actual loss sustained on account of the damages of the smoke house, we are constrained to accept the Ext.A9 fire occurrence report in which the loss of the smoke house is assessed as Rs.1,25,000/-.  Therefore, we fix the loss on account of smoke house as Rs.1,25,000/-.  Since the complainant had no case or he has not adduced any evidence for the loss sustained to the generator we are ignoring it.  Thus, we find that the total loss of the complainant is Rs.17 lakhs.  The above said loss was suffered due to the deficiency in service of the 1^st opposite party and since the 2^nd opposite party is the employer of the 1^st opposite party, the 2^nd opposite party is vicariously liable to the complainant’s losses and sufferings.

                   21. In the result, the 2^nd opposite party is directed to pay Rs.17 lakhs (Rupees Seventeen Lakhs only) to the complainant with 9% interest from the date of filing of this complaint along with compensation of Rs.25,000/- (Rupees Twenty Five Thousand only) and cost of Rs.5,000/- (Rupees Five Thousand only) within 30 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount with 10% interest from today till the realization of the whole amount. 

                   Declared in the Open Forum on this the 29^th day of January, 2014.

                                                                                                          (Sd/-)

                                                                                                    Jacob Stephen,

                                                                                                       (President)

Smt. K.P. Padmasree (Member)           :       (Sd/-)   

Appendix:

Witness examined on the side of the complainant:

PW1   :  K.G. Udayakumar

PW2   :  C.P. Suma

Exhibits marked on the side of the complainant:

A1 series (A1 to A1(d) ) :  Valuation reports in respect of the properties  

             hypothecated by the complainant. 

A2 series (A2 to A2(k) ) :  Copy of the complainant’s account with the 1^st  

             opposite party from 2008 to 2012 showing the debits made by the  

             opposite party for taking the insurance policy.

A3 :    Letter dated 10.09.2012 sent by the complainant to the

           1^st opposite party. 

A4  :  Copy of the registered letter dated 12.09.2012 sent by the complainant  

           to the 1^st opposite party. 

A5 :  Copy of the registered letter dated 12.09.2012 given by the  

         complainant to the 3^rd addl. opposite party.

A6 series (A6 to A6(d) ) :  Insurance policy certificates and the policy  

                schedules issued by the 3^rd addl. opposite party in the name of the  

                complainant during the period from 12.08.2010 to 11.08.2012. 

A7 :  Hypothecation-cum working capital agreement dated 30.03.2012  

         executed by the complainant and 1^st opposite party. 

A8 :  Enquiry report dated 24.09.2012 issued by the inspecting Asst.

         Commissioner, Commercial Taxes, Pathanamthitta in the name of the   

         complainant. 

A9 :  Fire occurrence report No.143/12 dated 09.09.2012 issued from Fire &  

         Rescue Station, Adoor.

A10 series (A10 and A10(a) ) : FIR and the mahazar prepared by

                                                     Konni Police. 

A11 :  Certified copy of memorandum of deposit of title deeds dated  

            28.03.2012 signed and submitted by the complainant.

A12 :   Stock register of the complainant for the period from 2012-2013. 

A13 : Copy of an application dated 18.02.2011 submitted by the  

          complainant before the Deputy Director, Rubber Board, Kochi. 

A14 :  Sanction letter dated 25.02.2011 issued from Rubber Board to the  

           complainant. 

A15 : Photocopy of the sale deed No.965/10 of SRO, Konni executed by one  

          Sarathchandranath in favour of the complainant.

A16 :  Letter dated 18.09.2012 issued by the 1^st opposite party in the name  

           of the complainant. 

A17 :  Copy of letter dated 28.10.2013 submitted by the complainant before  

           the addl. 3^rd opposite party.

A18 :  Copy of letter dated 28.10.2013 submitted by the complainant before  

           the 1^st opposite party. 

A19 :  Copy of application dated 04.11.2013 under Right to Information Act  

           submitted by the complainant before the Public Information Officer 

           of 1^st opposite party. 

A20 :  Copy of an application dated 04.11.2013 under Right to Information  

           Act submitted by the complainant before the Public Information  

           Officer of the 3^rd addl. opposite party. 

A21 :  Letter dated 04.10.2012 issued by the 3^rd addl. opposite party in the  

          name of the 1^st opposite party. 

A22 : Copy of an insurance policy No.101700 for the period from 12.08.2011  

          to 11.08.2012. 

A23 :  Insurance certificate and connected documents issued by SBI General

           Insurance.

A24 series (A24 to A24(i) ) : certified copies of cash receipts issued by the  

            addl. 3^rd opposite party in the name of the 1^st opposite party. Witness examined on the side of the opposite parties:

DW1    :  Kurikes Thomas

Exhibits marked on the side of the opposite parties:

B1 :  Copy of the sanction letter dated 20.03.2012 issued by the 1^st opposite  

        party in the name of the complainant. 

B2 :  Letter dated 18.09.2012 issued by the 1^st opposite party in the name of  

         the complainant.

B3 :  Postal acknowledgment card dated 21.09.2012.

   (By Order)

Copy to:- (1) K.G. Udayakumar, Proprietor, M/s. Kaygees Rubber Traders,

                       Near Maroor Palam, Konni.P.O., Konni Village,

                       Kozhencherry Taluk.                                                       

       (2) The Manager, State Bank of Travancore, Konni.P.O.

                 (3) The Divisional Manager, United India Insurance Co. Ltd.,

                       Kizhakkedathu Buildings, Pathanamthitta.

                 (4) The Stock File.