PER JUSTICE J.M. MALIK 1. Sh. Virender Kumar, the complainant had a grocery shop at Mandi on 19.10.2005. He opened an account with the petitioner/respondent-Punjab National Bank. He was sanctioned cash credit limit initially of of Rs. 1.00 lac, which was subsequently raised to Rs. 2.00 lacs on 07.08.2006. The stock in trade of the complainant was being insured by the Punjab National Bank, as the same was security for the repayment of money withdrawn against cash credit limit. On 12.05.2010, due to fire the goods of the complainant were damaged and he suffered damage upto Rs. 3.50 lacs. The Bank was informed and it was further requested to seek the insurance claim from the concerned Insurance Company. 2. The Bank informed the complainant that they had not insured the stock in trade after November 2008. The complainant was also asked that it was his duty to get the stock insured as per Clause 7 (a) of the agreement of cash credit limit. Section 7 (a) of the agreement of Cash Credit Limit runs as follows:- “That all the security as aforesaid wherever situated shall be insured by the Borrowers, against fire rise and as and when required by the Bank against the war, riots and civil commotion risk and/or risk of any other description with some insurance company approved by the Bank to the full market value of such security in each cash irrespective of the balance due against the Borrowers and the said policies shall be taken out in the name of the Bank or in the juoint names of the Bank and the Borrowers with the bank clause and that all policies and receipts for premia paid on such insurances shall be delivered to the Bank. Should the Borrowers fail on demand being made by the Bank to insure or to deliver the policies or receipts for premia as aforesaid, the Bank shall be at liberty, but not bound, to effect such insurance at the risk, responsibility and the cost of the Borrowers in such insurance companies as the Bank in its absolute companies as the Bank in its absolute and unfettered discretion, thinks fit and to an extent of the full market value of the security of which the Bank shall be the sole judge. Provided, however, that in the event of so insuring the security the Bank shall not be considered responsible or liable for the non-admission of the claims of the Bank of their non-payment wholly or partly by such insurance company for the omission to insure or deficiency of insurance and the ultimate liability of the Borrowers of the Bank shall continue notwithstanding such failure or non-admission as aforesaid. All such expenses when incurred by the Bank, shall form part of the principal amount due and be debited to the Borrowers account and will carry interest at the rate applicable to the account. Further, that all sums received under any such insurance as aforesaid shall be received by the Bank and applied in or towards the liquidation of the balance due to the bank for the time being and the event of their being a surplus, the Bank shall be entitled to appropriate such surplus as provided in clause 17 of this agreement.” 3. The case was filed before the District Forum. The District Forum dismissed the complaint. Aggrieved by that order, the complainant filed the First Appeal before the State Commission. The State Commission by rendering a well-reasoned judgment allowed the complaint partly, held that there was contributory negligence on the part of the complainant and the Punjab National Bank. It was directed that the petitioner Bank would pay to the complainant a compensation to the tune of Rs. 1,00,000/- with interest @ 9% per annum from the date of the complaint i.e. 04.05.2011 by adjusting the aforesaid amount plus interest payable thereon, in the cash credit limit of the complainant. The Bank was also directed to pay Rs. 5,000/- as costs and this amount should also be adjusted in the account of the complainant. 4. Aggrieved by that order, Bank has filed the present revision petition. Counsel for the petitioner has invited our attention towards the last part of the Clause 7 (a) of the agreement. According to him, it clearly goes to show that the responsibility lies at the doors of the complainant. It was his bounden duty to get the stocks in trade insured and the Bank should not be burdened due to the fault of the complainant. 5. We see no merit in these submissions. There is a contributory negligence on the part of both, the complainants as well as the Bank. The State Commission has rightly held that it was the primary duty of the complainant to have insured the stock, but the bizzare conduct of the Bank was difficult to fathom. The Bank has been insuring the stock upto November 2008 without any instructions from the complainant. Abruptly and without notice to the complainant, it stopped his stock in trade insuring under the aforesaid clause of the agreement. It was observed by the State Commission:- “9………Moreover, it is clear from the above reproduced Clause 7(a) that in the event of the appellant failing to insure the stock in trade, respondent was supposed to have demanded of the appellant to get the stock in trade insured and in the event of his failing to do so, the respondent itself had the option to insure the stock and debit the amount of premium to his account. This mention in Clause 7(a) also stands in the way of the respondent claiming absolute immunity from the responsibility of insuring the stock. The Learned State Commission further held :- 10……….However, since the respondent had been insuring the stock despite the aforesaid Clause being part of the agreement, which was executed in August 2006, appellant can legitimately be presumed to be under the impression that the stock had been insured by the respondent for the relevant period. Respondent, though not primarily responsible for insuring of the stock, in view of the aforesaid Clause, yet it can be held to be guilty of deficiency in service, as it never informed the appellant after stopping the insurance of stock from November, 2008, that he himself should get the stock insured.” 6. This is an admitted fact that the petitioner did not write a word or syllable to the complainant to pursue his case and there is some change and he could also affect the requisite changes. 7. We find no flaw in the judgment announced by the State Commission. The Revision Petition is, therefore, dismissed. |
