West Bengal

Dakshin Dinajpur

CC/136/2019

Sri Ujjwal Karmakar, S/O- Sri Brajabasi karmakar - Complainant(s)

Versus

The Branch Manager, state bank of india, Patharghata Branch - Opp.Party(s)

23 Aug 2022

ORDER

Today is fixed for passing ex-parte order. 

 The instant case has been initiated by the complainant U/S – 12 of C.P. Act, 1986 against the Opposite Party claiming principal amount Rs.1,75,000/- with 9% interest  + Compensation – Rs. 50,000/- + Damages of Rs. 3,50,000/- and  Litigation Cost – Rs. 25,000/- = Total Rs. 6,00,000/-

The fact of the case, in brief, is that the Complainant was running a business of Jewellery shop under the name & style Maa Mangalachandi Jewellers under his proprietorship with the financial help and by taking loan from the Opposite Party having Cash Credit Account no.11890894024. At the time of taking loan the Opposite Party proposed to insure the shop for protection of the assets from burglary and accordingly the Complainant has got insured the assets of the jewelry as per the instruction of the Opposite Party. The Complainant started the business of jewellery shop by taking loan from the Opposite Party and the Opposite Party use to realize the amount for insurance fees from the loan account of the Complainant from year to year. The Complainant was making the repayment of loan amount through the bank account lying with the Opposite Party on regular basis and accordingly the Opposite Party was debiting the amount for renewal of the insurance year to year from beginning. That on 29.07.2011 at night about 8.30.O clock some unknown persons with fire arms entered into the shop of the Complainant and extorted the stock jewelry and money amounting to Rs.3,50,000/- from the shop of the Complainant and ran away after causing physical injury and hurt by the dangerous weapons to the son of Complainant after making burglary of the assets of the shop. Thereafter, the Complainant informed the incident by lodging complaint before the I.C. Banshihari Police Station, Banshihari, Dakshin Dinajpur on 29.07.2011 mentioning the quantum of damage and accordingly I.C. Banshihari P.S. started the specific case having P.S. case no.100 dated 29.07.2011. The Complainant also informed the matter of burglary to the Opposite Party soon after the causing burglary of the shop claiming damages from the insurance coverage as per estimated value of the assets and damages property. The Complainant without any delay on 30.07.2011 informed the matter of loss and damages due to burglary to Opposite Party but the Opposite Party did not take any step to pay the claim of the damages. Thereafter, the Opposite Party neither replied to the acceptance of the claim of damage nor repudiated the claim of the Complainant. As per agreement with the insurer the Opposite Party has to pay the damages due to burglary amounting to Rs.1,75,000/- having been insured as the sum assured was Rs.1,75,000/-. It is noteworthy that the Opposite Party has never disclosed the name of the Insurance Company through which the stock of business of the Complainant was insured for the assessment year of 2011-2012 nor did the Opposite Party endorsed the realization of amount with regards to the insurance renewal fees in the statement of accounts for the assessment year of 2011-2012 to the Complainant. The Complainant on repeated occasions communicated with the Opposite Party but in vain.

             Having no alternative, the Complainant became bound to take the shelter of this commission for getting proper redress.  

It appears from the case record that notice was issued to the Opposite Party and after getting notice the Opposite Party appeared before this Commission by filing Vokalatnama and prayed for time for filing written version.  Subsequently, the Opposite Party did not appear before this Commission nor filed written version so, the case is proceeded ex-parte against the Opposite Party.

To prove his case, the complainant has submitted the following documents-

(I) Photo copy of letter dated 29.11.2017 addressed to the O.P.

(ii) Photo copy of F.I.R. lodge before Banshihari P.S. dated 29.07.2011.

(iii) Photo copy of Bank Pass book of Complainant

(iv) Photo copy of Insurance Certificated in the name of the Complainant for the year2008-09, 2009-10, 2013-14, 2015-16 and 2017-18. 

(v) Photo copy of Bank statement for the year 2008, 2016, 2017, 2018. 

(vi) Photo copy of paper publication

(vii) Photo copy of order sheets of G.R. Case No.666/2011.

 

                                         DECISION  WITH  REASONS

          

             We have heard argument by Ld. Advocate for the Complainant. Perused the case record and the documents filed by the Complainant and the cited case laws. 

               At the time of argument, Ld. Advocate for the Complainant narrated the facts of the case as mentioned in the plaint. He further added that there is negligence and deficiency in service on the part of the Opposite Party.

 

In support of his contention Ld. Advocate cited some case laws reported in ( 2019 ) CJ 361 ( N.C. ), ( 2020 ) SCCR 568 SUPREME COURT OF INDIA, ( 2019 ) CJ208 ( N.C ), ( 2018 )CJ 185 ( S.C. ), (2017 ) SCCR 625 SUPREME COURT OF INDIA, ( 2021 ) CJ 909 (N.C. ) and ( 2017 ) SCCR 157 SUPREME COURT OF INDIA.

 

It appears from the record that the complainant runs a business of jewellery and he used to take loan from the opposite party. It further appears that against the said loan, the Opposite Party himself arranged insurer and used to deduct Rs.1,75,000/- per year the insurance premium from the loan account of the Complainant.

On perusal of the statement of assets hypothecated as on 01.02. 2019 of State Bank Of India Patharghata Branch, it appears that the Complainant has a Cash Credit Account No.11890894024 opened on 15.09.2005 and the total value of the assets is Rs.4,04,000/-.

On 29.07.2011 at about 8.30 P.M. an incident of burglary occurred in the shop of the Complainant and the loss and damage was amounting to Rs.3,50,000/-. After the incident FIR was lodged before I.C. Banshihari P.S. being Banshihari P.S. case no.100 dated 29.07.2011. The Complainant also informed the matter to the Opposite Party and requested him to pay his claim but the Opposite Party did not pay heed. 

Now, from the statement of account No.11890894024 of the Complainant for the year 2008-09, 2016-17 and 2018-2019, it appears that insurance premium has been realized by the Opposite Party from the said cash credit account. But from the statement of account for the year 2011-12 and 2012-13, it appears that the insurance premium has not been realized from the account of the Complainant.

 Again, Insurance Certificates for the year 2008-09, 2009-10, 2013-14, 2015-16 and 2017-18 against the said loan have been supplied by the Opposite Party but the Insurance Certificates for the year 2011-12 and 2012-13 have not been supplied to the Complainant.

From the above mentioned facts it reveals that the Opposite Party has intentionally not deposited the insurance premium to the Insurer whereas it was mandatory on the part of the Opposite Party. Now, the incident took place on 29.07.2011 and as the insurance premium was not deposited by the Opposite Party to the Insurer so, when the Complainant put his claim before the Opposite Party, the Opposite Party kept mum. Thus, we can opine that there is gross negligence and deficiency in service on the part of the Opposite Party.

It further appears that for the year 2008-09 and 2009-10 the insurer was National Insurance Company Ltd. but when the Opposite Party failed to deposit the insurance premium for the year 2010-11, 2011-12 and 2012-13 he cunningly changed the Insurer and the new insurer was The New India Assurance Company against the said loan and started to deposit insurance premium for the next years.

Again, it appears from the SME PACKAGE INSURANCE–POLICY SHEDULE against the cash credit account no.11890894024 i.e. Bank/ Financer copy dated 13.05.2016 in the column of burglary insurance sum Insured for Stocks is Rs.1,75,000/-.

 

We rely on the observation held by National Consumer Disputes Redressal Commission, New Delhi that Whereas the Insurer and SBI have discussed and agreed that it would be in their mutual interest that should act a Corporate Agent for the Insurer on commission basis in relation to the Insurance business of the Insurer the deficiency in service on the part of the Bank, the Bank will liable to pay the claim of the Petitioner.

 

        Apart from all these facts, the Opposite Party has failed to contest the case despite of making his appearance in this case. In such circumstances, the case of the Complainant cannot be disbelieved.

        Here, the Complainant has claimed the insured amount, damage of looted ornaments and cash, compensation and litigation cost. In this context we, opine that the there is no liability of the Opposite Party in the incident of burglary. But the Opposite Party is liable to pay the Insured amount, compensation and litigation cost.

 

          In view of the above mentioned discussions, it has been established that the Complainant is a bona fide consumer to the Opposite Parties and there is deficiency in service on the part of the Opposite Parties.

 Hence, it is

                                                O R D E R E D

That the Consumer Case No. 136 of 2019 is hereby allowed ex parte in part but with cost. 

           The Opposite Party is directed to pay a sum of Rs.1,75,000/- along with an interest @ bank rate from 29.07.2011 till the full realization by issuing an account payee cheque in favour of the Complainant within 45 days from the date of passing of this order. The Opposite Party is further directed to  pay Rs. 10,000/- toward Compensation and Rs.5,000/- towards litigation cost  within 45 days from the date of passing of this order by issuing an account payee cheque in favour of the Complainant failing which the Complainant is at liberty to execute the order as per law.

              Let a plain copy of this order be supplied to the parties free of cost.