State Consumer Disputes Redressal Commission
The Branch Manager, Nia Co. Ltd. vs Babar Khan And Others on 8 May, 2007
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK C.D. APPEAL NO.252 OF 2005 From an order dated 19.11.2004 passed by the District Consumer Disputes Redressal Forum, Kendrapara in C.D. Case No.129 of 2003 The Branch Manager, NIA Co. Ltd., At- Kapileswar, Choudwar, Cuttack through its duly constituted Attorney. Appellant. -Versus- 1. Babar Khan, S/o. Late Sanak Khan, At- Baburam Patna, P.S/Dist- Kendrapara. 2. Kudus Khan, S/o. Najif, At- Haladia, P.S/Dist- Kendrapara. 3. Gopabandhu Behera, S/o. Nityananda Behera, At- Baburam Patna, P.S/Dist- Kendrapara. 4. Raj Kishore Nath, S/o. Fagu Nath, At- Thakur Patna, P.S/Dist- Kendrapara. 5. Dilip Kumar Sahu, S/o. Late Makar Sahu, At- Chhanchunia, P.S/Dist- Kendrapara. 6. Panchu Sethi, S/o. Late Bhima Sethi, At- Chhanchunia, P.S/Dist- Kendrapara. Respondents. 7. The Manager, UCO Bank, At/P.O- Thakurpatna, Dist- Kendrapara. 8. Dr. S.P. Das, B.SC and Addl. Veterinary Surgeon, Derabis, Dist- Kendrapara. 9. Dr. Prasanna Kumar Baral, Retired, Veterinary Technician K.V. Units of Kusiapal, At present Chhanchunia, P.O- Thakur Patna, Dist- Kendrapara. Proforma Respondents. For the Appellant : M/s. N.N. Mishra & Assoc. For the Respondent nos.2 to 5 : M/s. S.P. Das & Assoc.. PRESENT : THE HONBLE SMT. BASANTI DEVI, MEMBER A N D SHRI SUBASH MAHTAB, MEMBER. O R D E R
DATE:- 08TH MAY, 2007.
` Being aggrieved against the orders dated 19.11.2004 of the District Forum, Kendrapada in C.D. Case No.129 of 2003 directing opposite party no.2 to reopen the claim file of the complainants and to settle the respective claims of the complainants basing upon the death certificates issued by Veterinary Surgeon, the opposite party no.2 viz. the Branch Manager, New India Assurance Company Limited, Choudwar Branch at Kapileswar, Choudwar, Cuttack has filed this appeal.
2. Facts out of which this appeal arises in brief are that six complainants, who are respondent nos.1 to 6 respectively, had set up separate units of poultry firms obtaining loan from UCO Bank, Thakurpatna Branch, At/P.O- Thakurpatna, Kendrapada, respondent no.7 (opposite party no.1) to earn their livelihood under the Swarna Jayanti Swa Rajagar Yozana, in short, SJSRY of the Government. Each of the complainants insured their respective poultry firms with the appellant as per Miscellaneous Accident Insurance policy for a period of one year i.e. from 28.07.2000 to 27.07.2001 through financier, opposite party no.1, in short, the UCO Bank. During continuation of the policy period, due to devastating flood on 25.07.2001 unfortunately all the full grown living birds died and the infrastructures of the units, the valuable feeds and medicines of the birds were damaged as the respective poultry firms were submerged in rain water. Each of the complainants thus sustained loss of rupees 60,000/- due to death of the birds and rupees 15,000/- towards damage of infrastructure, birds feeds and medicines. The complainants promptly intimated about this loss and damage to authorised Government Officers, to the two Veterinary Assistant Surgeon Dr. S.P. Das (opposite party no.3) and the Retired Veterinary Technician (opposite party no.4), respondent Nos.8 and 9 respectively who were in charge of poultry section of Derabish Block. Opposite party nos.3 and 4 had verified the dead birds and had inspected the affected firms. They had issued certificates to opposite party no.1 in this respect. Complainants made claims in writing to opposite party no.2 through opposite party no.1. Though opposite party no.2 had assured each of the complainants for payment of award/assured value against loan accounts of each of the complainants yet opposite party nos.1 and 2 neglected them until they sent notices to opposite party no.1 on 07.04.2003 and to opposite party no.2 on 10.07.2003 respectively through advocate. In late opposite party no.1 intimated to they lawyer that the claims of the complainants are still pending with the Insurance Company. Opposite party no.2 as per his letter no.1147 dated 17.07.2003 replied to their advocate that the claims of the complainants were never placed before opposite party no.2 by opposite party no.1. Thus, with malafide intention, unfair trade practice with them has been committed. Opposite party nos.1 and 2 have never approached them or asked for anything for settlement of claim amount though they have not defaulted payment of premium amount. In order to continue their said forms, complainants have incurred loans paying higher rate of interest. Opposite party no.1 is also demanding repayment of loan amount with interest accumulated on it. Alleging deficiency in service, complainants have jointly filed the C.D. case each claiming rupees 75,000/- towards loss and damage and for adequate compensation against opposite party nos.1 and 2.
As per his written version, opposite party no.1 has challenged the filing of a single case by all the complainants as they have no unit of title and absolutely, no cause of action. According to him, the District Forum has no pecuniary jurisdiction to try the dispute and the case is bad due to misjoinder of party, he being not a proper party to be adjudicated in this type of dispute. He has denied any responsibility in this type of dispute. He denies in respect to damage to the full grown poultry, medicines and infrastructure as alleged by the complainants as no flood water had ever entered into the firms. Moreover, he has not responsibility in respect to the insurance policy entered into by the complainants which was not condition precedent to disburse loan amount in their favour. The UCO Bank, being a nationalized Bank, had accommodated / sanctioned loan in favour of the complainants to run poultry firms as per the recommendation of the Government. Before loan amount was disbursed in the month of July, 2000, complainants got their respective units insured with opposite party no.2 as lives of birds were concerned as per the advice of the opposite party no.1. As complainants were not in a position to pay insurance premium of rupees 1995/-, opposite party no.1 had made payment from their loan amount on the request of the complainants. Complainants have not made any payment towards the loan account since August, 2000 till July 2001. However, when 17 beneficiaries including complainant nos.1, 2, 3 and 6 made representation before the opposite party no.1 UCO Bank, the UCO Bank had forwarded their claim application in the month of August, 2001 to opposite party no.2 for settlement of claim as the units were damaged in flood and had pursued the matter and had sent three reminders to opposite party no.2. Much before receipt of the aforesaid notice through advocate, UCO Bank had intimated all the complainants that opposite party no.2 vide letter no.550302/02/1441 dated 28.03.2002 has closed claim files of opposite party nos.1, 2, 3 and 6 as no flood water entered into the units, complainants failed to provide necessary documents relating to claim. According to the UCO Bank, the complainants have adopted a false stand of damage due to flood to avoid payment towards loan account.
3. Opposite party no.2 through his written version denied to have adopted unfair trade practice and causing deficiency in service to the complainant nos.1 to 3 and 6 whose claim applications only are received by him. He has admitted about the policy in question and closing of the claim applications of the complainant nos.1 o 3 and 6. According to him, after receipt of the claim applications, he had deputed Surveyor / Loss Assessor, Badambadi, Cuttack Sri Er. A.K. Malik for inspection and assessment of loss, if any. But at the time of inspection by the Surveyor, the complainants could not produce any documents to prove purchase of birds, fodder, medicines etc. and the stock register. They could not the surveyor in respect to the damage due to flood whereas Surveyor found from local enquiry and from the villagers that damage due to flood is not true. Therefore, opposite party no.2 had to close the respective claim files as no claim and intimated the same to opposite party no.1. It is his specific stand that there was not load and damage of live birds etc. as alleged but with a view to avoid payment towards loan amount to opposite party no.1, complainants have made false claim going over opposite party nos.3 and
4. So the C.D. case should be dismissed with cost.
4. Opposite party nos.3 and 4 have stated through their joint written version that they were in charge of poultry section of Derabish Block for the scheme of Swarna Jayanti Swa Rajgar Yozana. Accordingly, they were providing technical assistance, nutrition and advice concerning medical treatment of the poultries and in improving business to the complainants and other entrepreneurs. They periodically inspect their units. They have further stated that in the devastating flood on 25.07.2001, all the poultry units were damaged and well grown living birds died. They have issued death certificates and have forwarded the applications of the complainants and other entrepreneurs under the scheme to opposite party no.1 Bank through which all the poultry units have been duly insured as per the scheme. Thus, they had claimed for dismissal of the case against them as no deficiency in service has been committed by them to the beneficiaries.
5. The District Forum vide its order dated 19.11.2004 has observed that closing the claim files basing upon the report of the Surveyor / Loss Assessor is the unilateral act of opposite party no.2. Surveyors investigation is beyond the knowledge of complainants. On the other hand, opposite party nos.3 and 4, who are Government employees and were in charge of poultry units, have physically verified and were satisfied that the poultry units were damaged and well grown live birds died in the flood water. They have also issued death certificates. In such circumstances, opposite party no.2 should not have closed the claim files and, therefore, should reopen the claim file and settle claim basing upon such death certificates. In respect to liability of opposite party no.1, District Forum has observed that when opposite party no.1 had forwarded the claim applications of the complainants, he has caused negligence to the complainants in not intimating them about closer of their claim files as has been intimated by opposite party no.2 till more than one year. In view of this, the District Forum found opposite party nos.1 and 2 only have caused deficiency in service and directed opposite party no.1 to exempt interest on the loan amount of the complainants from 25.07.2001 till the settlement of claim by opposite party no.2 and also directed opposite party no.2 to reopen the claim files of the complainants and settle the respective claims basing upon the death certificates issued by Veterinary Surgeon.
6. The aforesaid order has been challenged by opposite party no.2 filing this appeal.
7. We have heard both sides and perused the xerox copies of the documents including death reports of poultries by Veterinary Surgeon filed in the case and other materials available in the record.
8. All complainants claim damage of the structure of their poultry units and live birds poultry fees, medicines as flood water entered into their respective units on 25.07.2001. Undisputedly, opposite party no.1 the financier of the complainants has forwarded their claim applications to opposite party no.2. Opposite party no.1 claims and it is revealed from the xerox copy of his letter dated 26.08.2003 addressed to opposite party no.2 that opposite party no.1 had not received the claim applications of complainant no.4 Rajkishore Nath and complainant no.5 Dilip Kumar Sahoo and not sent to opposite party no.2. It is seen from the written version of opposite party no.2 that opposite party no.2 denies to have received their claim applications. However, basing upon the investigation report dated 05.09.2001 of Surveyor only, opposite party no.2 has closed the claim files of the complainants. Complainants alleged damage due to flood on 25.07.2001. Surveyor claims to have visited the spot and examined local people. He has submitted reports giving negative opinion regarding settlement of claim in respect to four complainants except no.4 Rajkishore Nath and no.5 Dilip Kumar Sahoo stating that the said poultry firms / units were not in undated with flood water and said four complainants have not submitted relevant papers like mortality register, cheek feeds, medicine bills and death reports. Accordingly, opposite party no.2 intimated vide letter dated 28.03.2002 through opposite party no.1 about closing of the claim files as no claim, for these reasons. But, nothing is there to show that before surveyor visited the spot either he or the opposite party no.2 had noticed the complainants or opposite party no.1. Statement of not a single local people is there whom surveyor had examined and formed opinion about no damage due to flood water. Therefore, we find much force when complainants claim that no surveyor has investigated at the spot and his report is not correct, more particularly when two Assistant Veterinary Surgeons, opposite party nos.3 and 4, who were in charge of the poultry firms of Derabish Block as per the above scheme, claim personal knowledge in respect to damage of grown up birds and the units in flood water and opposite party no.3 has given reports regarding such damage. In such circumstances, opposite party no.2 should have given much importance to the said report and death certificates issued by opposite party no.3 and should not have closed the claim files basing on the reports of the Surveyor alone. It is also seen that even if opposite party no.1 received information about closing of claim files from opposite party no.2 vide letter dated 28.03.2002, he remained silent about this till receipt of the advocates notice dated 07.04.2003. Opposite party no.2 also informed complainants about closing of claim file as per letter dated 17.07.2003. Thus both the opposite party nos.1 and 2 have harassed the complainants, who are poor villagers had started poultry firm to each their livelihood, in informing about closing of claim cases. In this end of view, the District Forum is justified in directing opposite party no.2 to reopen the claim files of the complainants and to settle claim basing upon the death certificates issued by Veterinary Surgeon. Moreover, opposite party no.1 has committed injustice to the complainants in not intimating in time regarding closer of claim case after getting such information from opposite party no.2. Both opposite party nos.1 and 2 have not produced any materials to show that in order to avoid payment to opposite party no.1 towards loan dues, complainants have made false claim going over opposite party nos.3 and 4. Opposite party no.1 has not challenged filing appeal the aforesaid orders of the District Forum to exempt complainants from payment of interest on the loan amount from 25.07.2001 till the claim is settled by opposite party no.2. Therefore, we have no reason to interfere with such orders of the District Forum. On perusal of the pleadings of opposite party nos.1 and 2 and the xerox copy of letter dated 26.08.2003 of opposite party no.1 to opposite party no.2 and repudiation of claim letter dated 28.03.2002 of opposite party no.2 to opposite party no.1 claim application of Rajkishore Nath and Dilip Kumar Sahoo opposite party nos.4 and 5 respectively, have not been forwarded by opposite party no.1 to opposite party no.2. As the claim matter is being remanded for fresh consideration by opposite party no.2, it is advised to opposite party no.1 to forward their claim applications, if actually received, to opposite party no.2 for consideration.
Besides this, as per the definition of person under section 2(i)(m) of the Consumer Protection Act, 1986, in short, the C.P. Act, and the application of such definition as such by the Honble National Commission in a case in between Orisa Lift Irrigation Corp. Limited and others vrs. Birakishore Rout and others, reported in 1991(2) C.P.R. at page 435, every other association of persons whether registered under the Societies Registration Act, 1860 or not is a person. Therefore, as complainants here have associated for a common cause and purpose, they are entitled to file a joint C.D. case and the C.D. case is maintainable.
Accordingly, we find no merit in the appeal.
9. Therefore, the appeal is dismissed on contest without cost. The impugned orders dated 19.11.2004 of the District Forum, Kendrapada in C.D. Case no.129 of 2003 is hereby confirmed. In view of the observation made above, the opposite party no.1 is hereby advised to send the claim applications of opposite party nos.4 and 5 if received to opposite party no.2 for reconsideration within a period of fifteen days from the date of receipt of the copy of this order and on receipt of those applications, opposite party no.2 would settle their claims along with the claim applications of the other complainants.
Records received from the District Forum may be sent back forthwith.