CITIZEN COOPERATIVE BANK LIMITED Vs. TARLOCHAN SINGH

JUDGEMENT

(1.) THROUGH the medium of this appeal, order dated 10.8.2007 passed by the learned Divisional Consumer Protection Forum, Jammu (hereinafter to be referred to as the Forum) has been challenged, whereby and whereunder the learned Forum has directed the appellants to adjust payment of Rs. 60,000 in the loan account of respondent No. 1 regarding the computer in question, along with interest at the same rate at which bank has been charging from him. Rate of interest has been granted from April 2004 till the amount is credited in the account of respondent No. 1. Litigation charges have also been awarded in favour of respondent No. 1 in the sum of Rs. 2,000.

(2.) BRIEF facts of the case are that the appellants agreed to advance a loan of rupees one lac in the year 2001 -2002 to respondent No. 1 and he executed all the required documents. Loan had been obtained for the purchase of computer with allied apparatus as respondent No. 1 being an unemployed youth had purchased the same and got the loan sanctioned from the appellants. Respondent No. 1 made the computer functional and started earning his livelihood. He repaid an amount of Rs. 42,000 for the liquidation of the standing amount of the loan but the hypothecated computer got completely damaged due to electric (supply) breakdown. The appellants had obtained two insurance policies viz. one for covering fire risk and the other for burglary risk from respondent No. 3. The particulars of the policies have been mentioned in the impugned order. After the functional breakdown of the computer in question due to electric short -circuit respondent No. 1 vide letter dated 17.3.2004 informed the appellants that the claim is not covered by the policies which had been obtained by the appellants and the claim in that view of the matter was payable by them because of their failure in duty to get the computer insured for the risks in question. The appellants had contested the case before the forum on the plea that it was not their duty to get the cover of "Electronic Equipment Insurance Policy" but it was soley responsibility of respondent No. 1 and as such the appellants were not liable to reimburse the loss. As per allegations made in the complaint by respondent No. 1 he had spent an amount of Rs. 1,00,500 for making the commuter functional. Learned Forum after appraisal of evidence and following the principle of law laid down by the Hon'ble High Court in the case titled Ghulam Mohd Payeer v. J&K Bank, 2005 1 JKJ 1, has held that it was the duty of the appellants to get the hypothecated computer insured under "Electronic Equipment Insurance Policy". Furthermore, the Forum after following the principle of law laid down by this Commission in complaint No. 2433/2002 titled Pushker Nath v. Oriental Insurance Co. Ltd., decided on 8,2.2004 applied the method of approximation in order to assess the loss and deducted 40% of actual expenses incurred for effecting repairs of the computer in question and thus awarded an amount of Rs. 60,000 for indemnification of actual loss along with interest as stated above.

(3.) MR . Kakkar while reiterating the above stated grounds from the memo of appeal in his arguments has further submitted that the learned forum has wrongly placed reliance on the law laid down by the High Court in the case of Gh. Mohd Payeer v. J&K Bank , because on the facts of that case no insurance had been done by the bank to get the mortgaged property insured whileas in the present case the appellant had obtained two policies though they did hot cover the alleged cause of loss. Respondent No.1 was conscious of the existence of above stated policies and it was his duty to get the risk in question also covered under the insurance cover which he had not done despite the fact that under the deed of hypothecation he was under obligation to do so. He has supported his argument by referring to letter of hypothecation, which is at page 68 of the record of the forum. He has laid stress that there is joint undertaking which binds respondent No. 1 to secure the insurance of all other risks.