ROHA-ASHTAMI CO-OPERATIVE URBAN BANK LTD. vs MANJUM NISSAR YERUNKAR

THIS appeal is directed against the order of the State Consumer Disputes Redressal Commission, Maharashtra at Bombay dated 13th August, 1993. The facts giving rise to this appeal are summarised as under: The complainant had been carrying out business of civil structural, mechanical and electrical consultant under the style of "M/s. Supreme Constructor". According to the complainant he obtained loan from the Roha-Ashtami Coop. Urban Bank Ltd. (hereinafter referred to as Bank) and hypothecated its stock in July, 1989 after observing all the formalities and excution of the necessary documents. He was asked to obtain insurance cover on the stock so hypothecated. According to the complainant, as per the stipulation, it was the responsibility of the Bank to obtain the insurance cover in respect of the risk of the hypothecated stock. The Bank failed to take prompt action to pay the premium to the opposite party No. 1 i.e. the Insurance Company On 23rd/24th July, 1989 due to unprecedented floods, the stock of the complainant, hypothecated to the Bank, was damaged. The complainant lodged his claim with Insurance Company but it refused to settle the claim for want of receipt of premium. Thereafter, the complainant filed a complaint before the State Commission.

THE Insurance Company filed written version and opposed the complainant''s claim on various grounds. It was, inter alia, contended by the Insurance Company that the complainant had no remedy against it due to the reason that the complainant''s proposal for the shopkeeper''s policy was received by the Insurance Company on 27th July, 1989 with pay order. The loss caused to the complainant on 23rd /24th July, 1989 could not be compensated. In sum and substance, the defence was that the Insurance Company was not f liable to compensate the complainant''s loss because of their failure to pay the premiums in time. After hearing the Counsel for the parties, the State Commission returned the finding that there was deficiency in service on the part of the Insurance Company as well as on the part of the Bank. Both the opposite party Nos. 1 and 2 were jointly and severally were made liable to settle the complainant''s claim for Rs. 1,83,963/-.

AGGRIEVED by the order of the State Commission, the Bank has filed the appeal before this Commission.

WE have heard the learned Counsel for the parties. It was canvassed on behalf of the Counsel for the appellant that the State Commission had not taken into consideration the written version filed on behalf of the appellant-Bank. The written version was filed on behalf of the Bank in time i.e. on 22nd January, 1993 and obtained a necessary acknowledgement from the office of the State Commission. The rejoinder was filed by the complainant who dealt with the written version filed on behalf of the Bank. But the State Commission, did not take into consideration the written version filed by the Bank while deciding the matter. It was evident from the observations made by the State Commission in the impugned judgment, wherein it was recorded that the opposite party i.e. the Insurance Company filed written version and opposited the complainant''s claim on various grounds. It was further observed that the Commission had carefully considered the allegations made in the complaint and the written version filed by the opposite party No. 1 i.e. the Insurance Company. The pleas raised in the written version and the documentary evidence filed on behalf of the Bank were not at all considered by the State Commission. The State Commission proceeded to decide the matter on the assumption that ho written version or documentary evidence was filed on behalf of the appellant-Bank. That had resulted into grave miscarriage of justice. On the other hand, Counsel for the respondent supported the judgment on the ground that it was legally correct land did not suffer from any legal infirmity. We have considered the matter and have gone through the record of the case carefully. We find force in the contention raised on behalf of the appellant. We have perused the order of the State Commission. While dealing with the pleadings of the parties, the State Commission had only dealt with the written version filed on behalf of the opposite party No. 1 i.e. the Insurance Company. There is no reference to the written version filed on behalf of the Bank. The pleas raised by the Bank were not considered at all. There is also observation by the State Commission that they had heard Advocate for the complainant and Mr. Limaye, Advocate for the opposite party No. land had carefully considered the allegations made in the complaint and the written version filed by the opposite party No. 1 i.e. Insurance Company. There is no mention at all that the State Commission had considered the written version filed by the Bank. On the record of this appeal, the Bank filed photo copy of the written version filed before the State Commission. There is an endorsement by the Registry of the State Commission that the written version was presented on 22nd January, 1993. Photo copy of the written version was also delivered to the complainant on 23rd January, 1993. The rejoinder filed on behalf of the complainant also dealt with the written version of the Bank. From the records it appears that the State Commission did not take into consideration the written version and the documentary evidence placed on record by the Bank. The State Commission proceeded to decide the matter on the assumption that no written version had been filed by the Bank. We are of the opinion that the case of the Bank was prejudiced as its pleas and evidence were not at all considered while deciding the matter. The State Commission passed the order under misapprehension of facts. The impugned order suffers from legal infirmity and is unsustainable in law.

IN the result, we allow this appeal and set aside the order of the State Commission. The case is remanded to the State Commission for deciding the matter de novo after taking into consideration the written version and the evidence produced by the Bank. Of course, the State Commission will decide the matter after affording reasonable opportunity of hearing to the parties. However, we leave the parties to bear their own costs.