KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION  VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL  NO.939/12

JUDGMENT DATED:29.10.2014

PRESENT : 

JUSTICE SHRI. P.Q. BARKATHALI                        :  PRESIDENT

SHRI.V.V JOSE                                                           : MEMBER

State Bank of India,

Pathanamthitta Branch,                          

Pathanamthitta                                                                   : APPELLANT

Repd. By its Branch Manager.

(By Adv: Sri.Williams)

            Vs.

1. Thomas Mathew,

M/s JN Indujstries, Uthimoodu,

Pathanamthitta Dist.

1. The Manager,

New India Assurance Company Ltd.,

Changayil Buildings, College Road,                             : RESPONDENTS

Pathanamthitta Dist.

1. The Divisional Manager,

New India Assusrance Co. Ltd.,

New India Assurance Building,

87, M.G.Road, Bombay.

(R2 & R3 by Adv: Sri.M.Nizamudeen)

JUDGMENT

JUSTICE SHRI. P.Q. BARKATHALI:  PRESIDENT

This is an appeal filed by the 2^nd  opposite party in CC.155/06 on the file of CDRF, Pathanamthitta challenging the order of the Forum dated, October 19, 2012 directing the opposite parties 1 and 3 to pay compensation of Rs.1,50,000/- and a cost of Rs.10,000/- with interest to the complainant.

2.      The case of the complainant as testified by him as PW1 before the Forum and as detailed in the complaint in brief is this:-

Complainant is the proprietor of JNJ Industries in Ranni Village.  Complainant was running an industry in 25 cents of land comprised in survey No.611/1E-9 of Ranni Village.  Complainant has availed a loan of Rs.37 lakhs from the 2^nd opposite party bank for running his business.  Complainant had taken a shop keepers insurance policy from first opposite party for an amount of Rs.37,18,000/- for the period from October 22, 2005 to October 21, 2006.  At the time of issuing the policy first opposite party made the complainant believe that the policy covered all the perils and damages due to fire to the buildings including dwelling house, smoke rooms and shop rooms and all articles therein.  On November 18, 2005 a fire occurred in the smoke house adjacent to the shop room where the stocks of rubber sheets are stored.  200 Kgs of rubber sheets worth Rs.1,62,500/- was lost in fire.  In the shop room the electronic balances, registers and furniture were damaged and caused a loss of Rs.13,000/-.  The claim of the complainant was repudiated by the first opposite party on the ground that smoke house was not covered under the policy. The complainant used the smoke house to stock the rubber sheets.  Now the 2^nd opposite party bank had vacated the complainant from his residence on the order of Chief Judicial Magistrate Court, Pathanamthitta.  The first opposite party as the insurer and the 2^nd opposite party as advisor and guide for taking the policy are vicariously liable.  Complainant filed the complaint claiming a compensation of Rs.18,92,000/-.

3.      First opposite party is the Manager, New India Assurance Company, Pathanamthitta. Subsequently its Divisional Manager was impleaded as additional third opposite party.  The opposite parties 1 and 3 in their joint version contended thus before the Forum.  The issuance of policy infavour of the complainant is admitted.  The incident is also admitted.  But it is the smoke room that was damaged in the fire.  The smoke house does not come under the purview of the policy.  Therefore claim of the complainant was repudiated by this opposite party.

4.      Second opposite party, State Bank of India represented by its Branch Manager, Pathanamthitta in his version contended thus before the Forum.  It is admitted that complainant has availed a loan from the bank and the first opposite party gave the policy to the complainant covering all the building therein and stocks especially rubber sheets.  The smoke house is also covered by the policy.  Therefore first opposite party is liable to pay the compensation to the complainant.  There is no vicarious liability on the part of this opposite party to the complainant on account of the loss suffered by him.  Therefore complaint is to be dismissed with cost.

5.      PWs 1 to 3 were examined on the side of the complainant and he produced Exts.A1 to A7 and DWs 1 and 2 were examined and Exts.B1 to B3 series were marked on the side of the opposite party before the Forum.  The Forum initially by its order allowed the complaint in part and directed opposite parties 1 & 3 to pay Rs.1,50,000/- with 9% interest and cost of Rs.5000/-.  On appeal by opposite parties 1 & 3 this Commission set aside that order and remanded the matter to the Forum for fresh consideration after giving opportunity for both parties to adduce further evidence.  After remand the complaint was dismissed for default and complainant filed Appeal-623/12 before this Commission which was allowed and the matter was again remanded to the Forum for fresh consideration.

6.      After remand Ext.C1 series were marked and DW3 was examined and Ext.B4 was marked.  On the side of the opposite party Exts.B4 and B5 was marked and DW3 was examined.  Ext.C1 the mahazer and Ext.C1(a) report of the Commissioner were also marked.  On an appreciation of evidence the Forum found that first and additional 3^rd opposite parties are went wrong in repudiating the claim of the complainant and directed them to pay Rs.1,50,000/- with interest and cost of Rs.10,000/-.  The second opposite party the bank has come up in appeal challenging the said order of the Forum.

7.      Heard both the counsels.

The following points arise for consideration:-

1. Whether the opposite parties 1 and 3 are justified in repudiating the claim of the complainant?
2. Whether the impugned order of the Forum can be sustained?

8.      The finding of the Forum that the incident occurred in the properties covered by Ext.A1 policy, that therefore opposite parties 1 and 3 are not justified in repudiating the claim of the complainant and awarding compensation of Rs.1,50,000/- with interest at the rate of 9% per annum from the date of filing of the complaint and a cost of Rs.10,000/- is not challenged in this appeal.  The appellant/2^nd opposite party the bank contended that complainant has taken a loan from the bank and that therefore they are entitled to the insurance claim and prayed for a direction to the Forum to credit the amount deposited by the opposite parties 1 and 3 before the Forum to the 2^nd opposite party.  For several reasons we are of the view that the claim of the appellant cannot be entertained in this appeal.

9.      The appellant has no such contention before the Forum.  On going through the version filed by the 2^nd opposite party, it is seen that their contention is that claimant is not entitled to any compensation from them and that therefore complaint is to be dismissed.  That apart the claim of the appellant is in the nature of third party claim which cannot be entertained by a Consumer Forum.  If the 2^nd opposite party wants to realize the loan amount from the complainant they have to file a separate suit before the Civil Court which they did not do.  That being so the appeal itself is not maintainable and has to be dismissed.

In the result we find no merit in this appeal and the same is hereby dismissed with a cost of Rs.5000/-.

The amount deposited by opposite parties 1 and 3 before the Forum shall be released to the complainant.

JUSTICE P.Q. BARKATHALI:  PRESIDENT

V.V JOSE  : MEMBER

VL.