Vijay Kumar aged about 37 years s/o Prem Shanker Dubey r/o VPO Nainowal Jattan District Hoshiarpur.
Bajaj Allianz General Insurance Co. Ltd. Court Road, Hoshiarpur.
Bajaj Allianz General Insurance Co. Ltd, Rampa Tower 5th floor, Circuit House, civil Lines, Jalandhar through its Manager.
Bajaj Allianz General Insurance Co. Ltd. GE Plaza, Airport Road, Yerawade, Pune.
Pb & Sind Bank, Bullowal District Hoshiarpur through its Branch Manager.
The complainant namely Vijay Kumar has filed the present complaint under section 12 of the Consumer Protection Act,1986 (as amended upto date) “hereinafter referred as the Act.”. In short,the facts of the case are that the complainant got insured tractor no.PB07-N-4509 with OP No.1 to 3. That the said tractor was hypothecated with OP No.4 , who was responsible to get the tractor insured and the insurance charges were required to be deducted from the account of the complainant.
It is the case of the complainant that said tractor met with an accident on 12.3.2007 at Rehankala Chalser,P.S.Agamtpur, District Agra (UP). That FIR no. 186/07 under sections 279/337/338/304-A was registered. That intimation dated 16.3.2007 was also sent to the OPs regarding the said accident alongwith copy of RC, DL of Vinod Kumar and copy of FIR .
It is the allegation of the complainant that the OPs have failed to settle the claim. It is further the case of the complainant that the tractor in question alongwith trolley were stolen on 5.1.2008 at Balesar P.S.Agamtpur District Agra and FIR was got recorded on 15.1.2008 The complainant has not received any information with regard to settlement of the claim, hence this complaint.
OPs Nos.1,2,3 filed the reply. Preliminary objections vis a vis maintainability, jurisdiction, estoppel and non joinder of necessary parties were raised. On merits, the claim put forth by the complainant has been denied. It is admitted that the complainant is the owner of tractor bearing registration no. PB07-N-4501. It is also admitted that the said tractor was insured with the replying OPs. It is denied that the complainant gave intimation with regard to the said accident and theft of the tractor to the replying OPs. It is replied that the trolley was not insured. The tractor was not fully insured and only third party coverage was there.
OP No.4 filed a separate reply. Preliminary objections vis a vis maintainability, estoppel, the complainant is not a consumer and non joinder and mis-joinder of necessary parties were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant applied for loan for purchase of Swaraj Mazda . The loan to the tune of Rs.2,70,000/- was sanctioned and the tractor was hypothecated with the replying OP. One Vipan Savroop son of Harish Ashram stood as guarantor for the repayment of the loan. The complainant signed various loan documents and also signed the agreement of hypothecation. The complainant made a default in making the payment. It is further replied that the complainant had taken away the tractor to District Agra (UP) without prior permission and consent of the replying OP in violation of the terms and conditions of the loan agreement. The replying OP was not responsible for the insurance of the tractor , as such, the dispute is only between the complainant and OP No. 1,2,3. It is further replied that in such like cases, MACT is the only competent authority to decide the claim. The replying OP had written letters to the police authorities , Agamtpur , District Agra but it has not been confirmed as to whether the recovery of the tractor has been effected ? The complainant never obtained the insurance policy for theft/loss. The insurance policy obtained by the complainant covers the owner , driver and third party under Farmers Package Policy.
In order to prove the case, the complainant tendered in evidence affidavit Ex.C-1, copy of insurance policy dated 21.6.2007 Mark C-2, letter dated 3.7.2007 Mark C-3, newspaper clipping Mark C-4, letter dated 21.1.2008 Mark C-5, FIR Mark C-6, copy of RC Mark C-7, application dated 16.3.2007 Mark C-8, policy dated 12.6.2006 Mark C-9, policy dated 24.6.2004 Mark C-10, format of proposal form Mark C-11, bill dated 9.6.2004 Mark C-12, letter dated 9.6.2004 Mark C-13, untraced report Mark C-14 and statement of account Mark C-15 and closed the evidence.
In rebuttal, the opposite party No.1,2,3 tendered in evidence affidavit of Sunil Koul Ex. OP-1 and policy Ex. OP-2 and closed the evidence. OP No.4 tendered in evidence affidavit of Suvinder Singh Ex. OP-3, letter dated 9.6.2004 Ex. OP-4, receipt dated 9.6.2004 Ex. OP-5, letters dated 9.6.2004 Ex.OP-6 to OP-9. Form dated 9.6.2004 Ex.OP-10, form no. 412 Ex. OP-11. Demand cash credit Ex.OP-12, form no. 256 Ex.OP-13, letter dated 24.11.2008 Ex. OP-14, dated 18.8.2008 Ex. OP-15, dated 23.7.2008 Ex. OP-16, dated 19.3.2008 Ex. OP-17, insurance policy Ex. OP-18, confirmation letter Ex. OP-19, proposal form Ex OP-20, utilization certificate Ex.OP-21, certificate of execution of documents Ex. OP_22, hypothecation Ex. OP-23, affidavit from complainant Ex.OP-24, forms Ex. OP-25Ex.OP-26 and statement of account Ex.OP-27 and closed the evidence.
The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
Ld. Counsel for the complainant very fairly and squarely conceded that OP No.1,2,3 have been impleaded as proper parties and no relief has been claimed against them. To the similar effect, this Court passed the order on 16.2.2009 that OP Nos.1,2,3 , if not necessary parties but necessarily they are the proper parties to the lis, thus, their names cannot be deleted from the array of the OPs. More so, the tractor in question was not comprehensively insured with OP No.1,2,3. The said tractor was insured to cover the risk of third party for agricultural purpose only and no premium was paid to cover the risk of theft. It is also proved on record that no intimation with regard to alleged theft was ever given to OP No.1,2,3.
Now the only point for consideration is as to whether the tractor bearing no.PB07-N-4509 was hypothecated with OP No.4, who is responsible to get the tractor insured and the insurance charges were required to be deducted from the account of the complainant ? The answer to this is in the negative.
The documents produced on record prove that the tractor of the complainant was insured to cover the risk of third party and no premium was ever paid to cover the risk of theft and own damage. It is also proved that the trolley in question was not insured .
It is also an admitted fact that the tractor in question was hypothecated with OP No.4- bank. The OP No.4 has produced on record hypothecation deed , Ex.OP-12. The clause/para no.7 of the said hypothecation deed is crucial to decide the controversy between the parties, which is reproduced as under:
“That the hypothecated good shall be insured against fire risk by the borrowers with some insurance office or offices approved by the bank and in the name and for the sole benefit of the bank, for their full market value and the borrower shall forthwith and from time to time deliver to the bank all policies and receipts for premium paid on such insurance endorsed and assigned with the full benefit thereof in favour of the bank . Should the borrower fail to so insure or fail to deliver the policies or receipt for the premia duly endorsed as aforesaid within three days of their receipts , the bank shall be at liberty though not bound to effect such insurance at the expense of the Borrowers. The Borrowers further agree that the bank shall be at liberty at any time in its discretion (without being bound to do so) to insure the securities for their full market value against riot , fire , theft and civil commotion risks or any other type of insurance risk at the expense of the Borrowers with any insurance company.”
Now, it is established on record that the hypothecated good shall be insured against theft etc. by the borrowers with some insurance office or offices. It is also established on record that the bank shall be at liberty in its discretion (without being bound to do so) to insure the securities for their full market value against riot , fire , theft and civil commotion risks or any other type of insurance risk at the expense of the Borrowers with any insurance company.
That clause /para no.7 referred to above is clear to the effect that it is the borrower who will get the hypothecated good insured and the bank shall be at liberty at any time in its discretion without being bound to do so to insure the securities for their full market value against riot , fire , theft and civil commotion risks or any other type of insurance risk at the expense of the Borrowers with any insurance company, which means that the duty is casted upon the borrower and in this case upon the complainant to get the tractor insured with any insurance company and the bank had the discretion without being bound to do so to insure the tractor for its full market value against theft etc. with any insurance company.
Under the given situation, it can legitimately be concluded that the complainant was under legal obligation to get his tractor insured against theft etc. and the OP No.4- Bank was at liberty to get the said tractor insured without being bound to do so, therefore, it does not lie in the mouth of the complainant that it was the duty casted upon OP No.4 to get his tractor insured with insurance company.
The case of the complainant is that his tractor met with an accident on 12.3.2007. It is further the case of the complainant that the tractor in question alongwith trolley were stolen on 5.1.2008. The complainant has alleged vide para no.2 of the complaint that OP No.4 was responsible to get the tractor insured and the charges of insurance were to be deducted from his account. It has already been held in para supra that it was the duty casted upon the complainant to get his tractor insured and OP No.4- Bank was at liberty to get the said tractor insured without being bound to do so. Since the complainant had not insured his tractor with the insurance company in view of clause no.7 of the hypothecation deed Ex. OP-12, therefore, the OP No.4- bank is not liable to indemnify the complainant with regard to the loss suffered by him.
It has already been held that as per clause /para no.7 of the hypothecation deed , the complainant was under legal obligation to get his tractor insured with some insurance company,which he has failed to do so , therefore, he has failed to prove any deficiency in service on the part of the OP No.4. Reliance placed on 1(2007)CPJ, 29 (NC) UCO Bank vs Gadadhar Mohapatra.
Ld. Counsel for the complainant placed reliance on document Mark C-13. It was submitted that as per recitals of Mark C-13, OP No.4 was liable to compensate the loss to the complainant but this limb of argument is not available to the complainant in view of clause/para no.7 of the hypothecation deed Ex.OP-12.
As a result of the above discussion, it is held that there is neither any deficiency in service on the part of the OPs nor the OPs are liable to compensate the complainant, with the result, the complaint is dismissed.