State Consumer Disputes Redressal Commission
Idbi Bank vs Suresh Kumar Thakur Pro. Laxmi Surgical on 28 October, 2010
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Appeal No.245/2010
Instituted on 12.04.10
The New India Assurance Co. Ltd.,
Through: Divisional Manager, Division Office No.1,
Madina Building, Jail Road, Raipur
Dist. RAIPUR (C.G.) ... Appellant.
Vs.
1. Suresh Singh Thakur, Proprietor,
M/s Lakshmi Surgical & Scientific Shop,
Shop No. 33, Dava Bazar, G.E. Road, Raipur
Tah. & Dist RAIPUR (C.G.)
2. I.D.B.I. Bank,
Through: Branch Manager,
Branch : Opp. Dadabadi, M. G. Road, Raipur
Tah. & Dist. RAIPUR (C.G.) ... Respondents.
Appeal No.254/2010
Instituted on 16.04.10
Suresh Singh Thakur, Proprietor,
M/s Lakshmi Surgical & Scientific Shop,
Shop No. 33, Dava Bazar, G.E. Road, Raipur
Tah. & Dist RAIPUR (C.G.) ... Appellant.
Vs.
1. I.D.B.I. Bank,
Through: Branch Manager,
Branch : Opp. Dadabadi, M. G. Road, Raipur
Tah. & Dist. RAIPUR (C.G.)
2. The New India Assurance Co. Ltd.,
Through: Divisional Manager, Division Office No.1,
Madina Building, Jail Road, Raipur
Dist. RAIPUR (C.G.) ... Respondents.
// 2 //
Appeal No.264/2010
Instituted on 19.04.10
I.D.B.I. Bank Ltd.,
Through its Branch Manager,
R.B. Tower, 104, Samta Colony, Raipur
Tah. & Dist. RAIPUR (C.G.) ... Appellant.
Vs.
1. Suresh Kumar Thakur, Proprietor,
M/s Lakshmi Surgical & Scientific Shop,
Shop No. 33, Medicine Market, G.E. Road, Raipur
Tah. & Dist. RAIPUR (C.G.)
2. The New India Assurance Co. Ltd.,
Through its Branch Manager, 2nd Floor,
RDA Building, G.E. Road, Raipur
Tah. & Dist. RAIPUR (C.G.) ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SMT. VEENA MISRA, MEMBER
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSELS FOR THE PARTIES IN ALL THREE APPEALS: -
Shri P.K. Paul, for The New India Assurance Co.
Shri R. K. Bhawnani, for Suresh Singh Thakur.
Shri Priyank Mishra, for I.D.B.I. Bank.
ORDER
Dated:28/10/2010 PER: - HON'BLE SMT. VEENA MISRA, MEMBER All these appeals arise out of order dated 18.03.2010 passed by the District Consumer Disputes Redressal Forum, Raipur (hereinafter called "District Forum" for short) in Complaint Case No.34/2008, whereby the complaint was partly allowed and the OPs were directed to pay the amount of Rs.5,06,116/- each to the complainant together with interest @ 6% p.a. w.e.f. 09.04.2008 and also to pay compensation of Rs.5,000/- each to the complainant for mental harassment besides paying Rs.1,000/- as cost of litigation. Aggrieved by the aforesaid // 3 // orders, all the parties have preferred appeal before us. Appeal No. 245/2010; Appeal No. 254/2010 and Appeal No.264/2010 have preferred respectively by the OP-2 insurer, the complainant and the OP no.1 Bank. As all the parties have preferred appeal, for the sake of convenience, the parties would be referred in this order as complainant and OP nos. 1 & 2 as mentioned in the complaint.
2. Brief facts of the case are that the complainant had obtained cash credit limit from The United Western Bank Ltd., Raipur. Subsequently, the said Bank amalgamated with IDBI Bank, which is OP no.1 in the complaint. The stock of the complainant‟s shop was hypothecated in favour of the Bank and hence Shopkeeper‟s Insurance Policy was continuously being obtained by the complainant through the Bank. On 31.08.2006 the Bank debited a sum of Rs.4,787/- from the account of the complainant towards premium for insurance. On 29 th and 30th June 2007, there was heavy rain at Raipur and complainant‟s shop was submerged in water, thereby a lot of damage was caused to stock of various items, kept in the shop. When the complainant approached OP no.1 Bank, he was asked to contact OP no.2. When OP no.2 was informed, he had sent surveyor for assessing the damages, who conducted the survey and took photographs. As per averments of the complaint, on being contacted by the complainant the OP no.2 insurer demanded policy hence in turn the complainant demanded // 4 // policy from OP no.1, but the Bank did not provide the policy. The complainant demanded the policy in writing vide letter dated 25.07.2007 in turn the Bank wrote a letter to the insurer on 29.07.2007 that the amount of premium was sent to the insurer but the policy in favour of the complainant has not yet been received. The complainant tried his level best and contacted both the opposite parties repeatedly, but no relief was provided by the OPs. The complainant has suffered considerable loss of about Rs.10,00,000/- and had suffered a further loss of Rs.5,00,000/- due to closure of business for considerable period. Hence, after serving notice dated 09.01.2008, the complainant preferred complaint before the District Forum.
3. In written version, OP no.1 took the plea that payment of premium for renewal of policy was responsibility of the complainant. However, at the request of the complainant, the Bank had debited a sum of Rs.4,787/- and had sent the same to the insurer and had informed the complainant vide letter dated 12.09.2006 and 10.11.2006 about sending the premium to the insurer and had asked the complainant to obtain the policy and deposit the same with the Bank. It was further averred in the written version that the Bank had sent consolidated premium of Rs.68,348/- vide pay order No.324540, which was deposited in the account of insurer on 02.09.2006. This consolidated amount included the premium of Rs.4,787/- paid // 5 // towards renewal of policy in favour of the complainant. After receipt of premium, it was the responsibility of the insurer to issue the renewed policy. Without charging any fee, the Bank had duly sent the premium to the insurer. There was no deficiency in service by the Bank. It was also averred in the written version that the OP no.2 has taken the plea that a sum of Rs.10,823/- was returned to the Bank vide cheque bearing no.91166 dated 14.11.2006 drawn on Union Bank of India. The Bank contended that the aforesaid cheque was sent in the name of M/s Jaya Enterprises, hence the said cheque was credited in to the account of M/s Jaya Enterprises. No cheque was issued towards refund of premium to the Bank as has been alleged by the OP no.2.
4. OP no.2 submitted in its written version that on receiving consolidated premium of Rs.68,348/- vide pay order dated 31.08.2006, the insurer had issued 13 policies and the said policies were sent to the Bank together with letter dated 31.08.2006. Remaining excess amount of Rs.10,823/- was left with the insurer regarding which they had made query to the Bank for providing details regarding the said amount. The Bank failed to provide any particulars regarding the aforesaid excess amount. Hence, vide cheque bearing no. 91166 dated 14.11.2006 Union Bank of India, the insurer returned the excess amount laying with it together with covering letter dated 14.11.2006 to the Bank. Even after receiving the said amount the Bank did not make any // 6 // enquiry from the insurer about the amount sent by the insurer but in order to avoid liability, letter dated 25.07.2007 was sent to the insurer by the Bank, demanding the policy in favour of the complainant. It was further averred in written version that the complainant personally did not pay any premium for renewal of policy nor complainant had laid any claim with the insurer. Hence, there was no question of appointing any surveyor for assessing the loss. The complainant is not a consumer of the insurer so he is not entitled to get any relief.
5. Considering the material placed before it, the District Forum found both the OPs deficient in service and directed both of them to share and indemnify, in equal proportion, the loss suffered by the complainant.
6. Final arguments heard. Record perused.
7. Learned counsel for the complainant in appeal No.254/2010, submitted that the amount awarded by the District Forum is too meager and in addition at least a sum of Rs.1,00,000/- ought to have been awarded for the deficiency in service and unfair trade practice committed by the OPs. He further submitted that the interest has been awarded by the District Forum @ 6% p.a. and that too from the date of complaint i.e. 09.04.2008. Learned counsel submitted that the District // 7 // Forum ought to have directed payment of interest @ 12% p.a. from the date of incident i.e. 30.06.2007. He further submitted that the amount directed to be paid towards cost is also insufficient and may be enhanced.
8. Learned counsel for OP no.1 Bank submitted that complicated facts were involving in the case, hence it would have been proper for the District Forum to relegate the complainant to seek remedy before the competent Court of law. He further submitted that the District Forum failed to evaluate the material placed on record in its proper perspective and has ignored the document placed on record and relied by the Bank. He further submitted that the Bank is not obliged to deduct premium and obtain insurance for the hypothecated stock, on the contrary it is the duty of the account holder to obtain insurance coverage and to furnish the policy with the Bank. Further, considering the request of the complainant, the Bank had deducted the premium and had sent the amount to the insurer. He further submitted that no fee was charged for providing this service. Hence, the Bank cannot at all be held liable as has been done by the District Forum. He further submitted that due to amalgamation of original Bank with the IDBI, several documents have misplaced during shifting of record from one place to another. Consequently, the list of persons for whom the premium of Rs.68,348/- was sent to the insurer for obtaining // 8 // insurance cover is not traceable. He submitted that such list must be in possession of the insurer, who ought to have produced the same, but despite direction, he has failed to do so. Learned counsel further submitted that during pendency of appeal, the Bank has placed on record a Transfer Debit Voucher showing transfer of the amount of Rs.68,348/- dated 31.08.2006 and it is mentioned in the said voucher that it was the amount towards insurance premium „as per list enclosed‟. Learned counsel submitted that by the said voucher it stands proved that the Bank had sent a list of persons / parties in whose favour insurance coverage was to be provided. In the circumstances, it was obligatory on the insurer to provide the said list. Learned counsel further submitted that the insurer has taken the plea that they had issued policy in name of 13 persons and had returned the remaining amount of Rs.10,823/- to the Bank, but it is not true. The amount which was returned by the insurer was in the name of M/s Jaya Enterprises and accordingly the amount was credited in relevant account. So it is clear that the Bank has not committed any deficiency in service or unfair trade practice. Hence the order of the District Forum is required to be set aside against the Bank and sole liability is to be fastened on the insurer for non-issuance of policy.
9. Learned counsel for the insurer / appellant in Appeal No.245/10 submitted that the impugned order is patently erroneous.
// 9 // Neither the complainant nor the Bank had opted insurance coverage for the property allegedly damaged due to the rains, hence the insurer is not liable to indemnify the loss suffered by the complainant. He submitted that in the written version it was clearly mentioned that on receiving the premium vide pay voucher dated 31.08.2006, the insurer had issued policy in favour of 13 institutions and had enquired the Bank about the remaining amount of Rs.10,823/-, but the Bank failed to provide any information. Subsequently the insurer had returned the amount together with letter dated 14.11.2006 vide cheque no. 91166 Union Bank of India, Raipur. He further submitted that the insurer has also filed the Bank statement to show that the said amount has been credited in the account of the OP no.1 Bank. He submitted that it was the Bank, who had committed deficiency in service in not enquiring about non issuance of policy in favour of the complainant and refund of amount by the insurer. He further submitted that the complainant had demanded exaggerated amount under the complaint, though he has produced stock statement, bills regarding purchase and sale stock register etc. to show as to on the date of incident how much stock was kept in the shop. The District Forum has allowed the entire amount claimed by the complainant towards loss allegedly sustained by the complainant. Learned counsel reiterated that the complainant is neither a consumer of the insurer nor has made any claim before the // 10 // insurer, hence the impugned order deserves to be set aside, allowing the appeal of the insurer.
10. So far as the question of non renewal of policy is concerned, it is an admitted fact that the Bank had sent consolidated amount of premium of Rs.68,348/- dated 31.08.2006, which was duly received by the insurer. The plea taken by the Bank is that they had sent a list of persons in whose favour the policy of insurance were required to be issued for the premium sent to the insurer. The Bank has further taken the plea that due to shifting of voluminous record of the United Western Bank Ltd. to IDBI Bank on account of amalgamation, some documents are not traceable despite best efforts. Learned counsel for the appellant has filed copy of Transfer Debit Voucher, wherein it is mentioned that the amount was being debited towards insurance premium „as per enclosed list‟. During the course of argument, learned counsel for the Bank submitted that though untiring efforts were made to trace out the list, but it could not be traced. It must be in possession of the Insurance Company, who issued the policy on the basis of the said list. In case the insurer had filed the list, it would have been clear as to it contained the name of 15 persons, as contended by the Bank, or only of 13 persons in whose favour, the insurer had issued the policy. We find force in this submission. Had the insurer who issued policies in favour of various persons on the basis of a particular list must have // 11 // been in possession of the list. Despite repeated opportunities provided to the insurer, no such list has been placed on record, hence adverse inference is drawn against the insurer.
11. It is further noted that the Bank has filed Disbursement Voucher of the insurer, which was duly received by the Bank. Voucher relates to cheque no.91166 dated 14,11,2006 Union Bank of India drawn in favour of M/s Jaya Enterprises. Learned counsel for the Bank has also placed statement of account of M/s Jaya Enterprises on record to show that the amount was credited in the account of M/s Jaya Enterprises on 26.12.2006. On the other hand the insurer has filed several documents which include copy of letter dated 31.08.2006, which was allegedly sent to the Bank together with 13 policies and query regarding excess amount of Rs.10,823/- was made, subsequent letter dated 14.11.2006, whereby the excess amount was returned vide cheque no. 91166 dated 14.11.2006 is also placed on record. Learned counsel for the Bank has denied receiving these letters. It is noted that these documents do not bear acknowledgment of receipt by the Bank. The insurer has failed to explain as to how and by what mode the said letters were sent to the Bank. If the letters were delivered personally, they ought to bear acknowledgment, if the same were sent by registered post, documentary evidence of the same, ought to have produced, but no such documents have been placed on record. It is // 12 // further noted that disbursement voucher, which was admittedly received by the Bank, shows that cheque no.91166 dated 14.11.2006 in favour of M/s Jaya Enterprises was received by the Bank. In the circumstances, letters dated 13.08.2006 and 14.11.2006 become the more suspicious, as in letter dated 14.11.2006, it is mentioned that cheque no.91166 dated 14.11.2006 for refund of excess premium was enclosed with the letter, whereas the disbursement voucher clearly shows that the said cheque no. was issued in favour of M/s Jaya Enterprises as per Disbursement Voucher of the insurer itself. In the circumstances, it is prudent, not to believe the letters sent by the insurer. The insurer has also filed its Statement of Account of Union Bank of India to show that cheque no. 91166 was credited in the account of IDBI Bank on 19.12.2006. However the photocopy of the statement of account in the name of the insurer which has been filed, has not been properly certified by the Bank in accordance with the provisions of the Banker‟s Book Evidence Act but has been certified by the Insurer itself. In the circumstances and in view of the disbursement voucher showing that the said cheque bearing no.91166 was issued in favour of M/s Jaya Enterprises, the statement of account cannot be believed.
12. It is pleaded in the complaint that the complainant had been obtaining insurance policy through the Bank. It appears that in case // 13 // the insurer receives premium through the Bank the policy is sent directly to the Bank as 13 policies are said to have been sent. Probably this was the practice in previous years also, hence the complainant did not bother to enquire about the policy and when he sustained loss, he contacted the Ops. The Bank has taken the plea that it had sent two letters to the complainant dated 12.09.2006 and 10.11.2006, whereby the complainant was informed that the premium has been paid to the Insurance Company and the complainant was advised to collect the policy from the insurer. However, these letters also do not show any acknowledgment of the complaint. Neither any receipt etc. has been filed by the Bank nor the said letters appear to have been received by the complainant in person. In view of the fact that the Insurer had sent 13 policies directly to the Bank we see no point in the Bank requesting the complainant to collect the policy from the insurer. Though as a matter abundant caution, the complainant was accepted to verify, whether the policy has been received by the Bank or not yet it cannot be said to be negligent.
13. In view of aforesaid discussion it is apparent that the Insurance Company committed deficiency in service by not renewing the policy in favour of the complainant despite receipt of premium through the Bank. The Bank cannot be said to be deficient simply because the amount was returned to the Bank in the name of M/s Jaya Enterprises.
// 14 // There was not even a spur that the said amount was towards refund of excess premium. In case the amount was towards refund of excess premium, it ought to have been sent directly to the Bank and not to in any particular name specially that in whose favour, the policy was also issued.
14. The complainant had claimed a total sum of Rs.17,00,000/- under the complaint. This amount is too exaggerated. On perusal of material on record, it appears that the complainant has placed list of damaged items on record as document A-3, which does not bear signature of anyone and on the basis of this document, he had claimed a sum of Rs.10,12,233/- towards the loss caused to the stock of the complainant. No other material has been placed as rightly pointed out by learned counsel for the insurer. In the circumstances, the District Forum has committed a mistake by awarding the amount demanded by the complainant. The complainant himself ought to have got the loss assessed by a licensed surveyor only then he would have been entitled to receive the amount assessed by the surveyor. Though learned counsel for complainant submitted that the insurance company had appointed a surveyor who had assessed the loss and also took photographs but the insurer has denied any such appointment. Letter dated 07.10.2007 of the complainant addressed to the Insurance Company Annexure A-4 says that damaged articles were not inspected // 15 // by anyone and have been destroyed by the complainant. It is a matter of common knowledge that in absence of any policy insurer does not appoint surveyor so the plea taken by the complainant cannot be believed. The complainant has also not placed other documents on record to show the sale and purchase of medicines and other equipment etc., stock register and such other documents to prove the loss sustained by him. In absence thereof, we find our self unable to allow any amount towards loss suffered by the complainant due to heavy rains.
15. Impugned order is set aside. All the appeals are disposed of with the direction as under:
For the deficiency in service committed by the insurer by not renewing policy, despite receiving consolidated premium from the Bank, without assigning any reason or refunding the premium in favour of the complainant or the Bank, we allow a sum of Rs.10,000/-. The insurer shall also pay a sum of Rs.2,000/- towards cost of proceedings. The complainant shall be free to avail of any other remedy that may be available to him under law.
(Justice S.C. Vyas) (Smt. Veena Misra) (V.K. Patil)
President Member Member
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