Before the District Consumer Dispute Redressal

Forum at Tamluk, Purba Medinipur.

Ref. – C C No. – 90 / 2021

In the matter of:

M/S ARKA NURSERY

.........Complainant

Versus

Branch Manager ,Bank Of India Contai Branch and others.

.........Opposite Party

Reply on behalf of the opposite party no.-1 to the complaint

filed by the complainant under Section 35 of the Consumer
Protection Act, 2019.

Most respectfully sheweth:-

1.

1. At the outset each and every averment, statement,

allegation and contention and made by the complainant
in complaint under reply which is contrary and
inconsistent to what has been stated in the reply here
in is denied by the answering opposite party and no
averment, allegation, statement and contention
contained in the captioned complaint should be deemed
to be admitted, save and except those specifically
 admitted to be true and correct. It is respectfully
submitted that this be treated as a specific denial of
the complaint.

1. The the instant case is not maintainable in its present form and facts and
circumstances of the case.

2. That the instant case is barred by limitation, waiver, estoppel, acquiscence

and/or principles analogous thereto.

3. That the said case is barred by law.

4. That the case is mis joinder of parties.

5. Not a fact that the opposite party no.1 is the loanee bank and the opposite party
no .2 has provided standard fire & specials perils policy bearing policy
no.51260011200100000005 dated 15th april 2020 in favour of the complainant for
the arka nursery through the development office level /broker:Bank Of India.

6. Not a fact that as per the bank’s norms and direction of the o.p no-1, the
complaint was compelled to obtain an insurance policy known as standard fire &
special perils policy under the new india assurance company , o.p no-2 herein
bearing policy no. 51260011200100000005 dated 15th april 2020.

7. Not a fact that in compliance with the direction of both o.p no 1 & 2, the
complainant deposited regularly the premium amount through the o.p.no-1.

8. Not a fact that due to devastation caused by the cyclone storm that lashed in the
particuler area in the name of ampan in the year 2020,all the plantations of the
complainant standing on the field of arka nursery were severally damaged and/or
completely perished due to severe impact of the said storm.

9. Not a fact that since the complainant was regularly paying the premium through
the o.p no.1 for the aforesaid insurance policy as per the guidance and direction of
o.p no.1 who sanctioned the cash credit loan in favour of the complainant for the
development of arka nursery at mouza-satikeswar under P.S-Contai, in the district
of purba medinipur, the complainant had submitted the claim for awarding
compensation amount due to severe loss sustained by the proprietor of M/S Arka
nursery , complainant herrein , on 23.5.2020 due to cyclonic storm i.e. Amphan.
10. Not a fact that upon receipt of said application of the complainant for granting
compensation by the o.p. no-2 through o.p. no-1, the o.p. no-2 appointed surveyor
who had visited the particular arka nursery and after holding such survey , the
surveyor appointed by the o.p.no-2 submitted its report before the concerned
authority of the o.p.no-2.

11. Not a fact that although about a year was elapsed following holding of such
survey of the spot by the appointed surveyor of the o.p.no-2, neither the
compensation amount nor any response was received by the complainant from
their end for the reason best known to the O.P. No-1 and O.P no-2 and thereby the
complainant has been sustaining severe financial loss in the particular nursery
business being carried out in the name of M/S Arka Nursery by the complainant
inasmuch as for want of money, the proprietor of arka nursery , was unable to
make development of the nursery properly and adequately to attract the customers.
The Complainant also sustained acute mental pain and agony for the loss not being
compensated by the concerned O.P No-1 and 2 inspite of having valid insurance
policy, as aforesaid.

12. Not a fact that even after repeated knocking at the doors of both the O.P no-1
and the O.P No-2 days after days , no fruitful result was achieved. Finding no other
alternative , the complainant sent a legal notice through its Advocate Mr. Pradip
Kumar Panda, Contai Criminal Bar Association, Contai on 23.03.2021.

13. Not a fact that while the notice was served at the office of the Bank of India,
Contai Branch on 23.03.2021 through had, Notice upon the O.P no-2 was sent
through registered post with A/d under Article No-RW332044995IN which was
also delivered to the O.P No-2 on 26/03/2021 as it appears from the report of track
consignment obtained thorough internet.

14. Not a fact thet even after receipt of the legal notice, both the O.P No. 1 and 2
have been sitting idle over the matter till date withput making any response
therefor; nor any compensation has been paid to the complainant although the New
India Assurance Co. Ltd has received the regular premium from the complainant
though the O.P no-1.

15. Not a fact that due to devastation of plantations by the storm, the complainant
has sustained loss to the tune of Rs. 11,63,000/-(Rupees eleven lakhs and sixty
three thousand). As the arka nursery was under insurance coverage through the
O.P.No-2, the complainant is, therefore, entitled to get the compensation in order
to compensate the loss already sustained due to storm.

16. Not a fact that the opposite parties have made deficiency in service by not
taking adequate steps within the reasonable period of time for making payment of
the aforesaid compensation amount so as to enable the proprietor of arka nursery
to revive the nursery business.

17. Not a fact that both the opposite parties are jointly and severally liable for the
loss and injuries your complainant have been facing on each and every day due to
their negative attitude for not making payment of compensation which the
complainant is entitled to get due to loss sustained following devastation caused to
the arka nursery by the severe impact of the cyclonic storm “AMPAN”.

18. Not a fact that the complainant is also entitled to get further compensation from
the opposite parties for mental pain, agony and sufferings for an amount of RS.
50,000/- apart from losses for which the compensation has been separately prayed
for.

19. Not a fact that the cause of action for this case arosee on and from the date
when the O.P No.1 and 2 have got the legal notice dated 23.03.2021 from the Ld.
Advocate for and on behalf of the complainant for making payment compensation
amount.

Objection and Submission:

1. It is respectfully submitted that O.P No -1 is the
Creditor / Nationalized Bank and the basic functions of the
O.P No-1 is to borrows money from a group of people at a lower
rate of interest and lends to the other group of people at some
higher rate of interest. The main function of banks are accepting
deposits from the public and advancing them loans. And
whereas the complainant is a debtor of O.P No-1 , he took
loan from the o.p no-1 for his business and o.p no.2 herein ia
an insurance company who insured the stock of the
complainant herein. That it is fact that complainant’s
give a copy of an advocate letter dated 23.03.2021 to O.P
No-1 herein and thereafter the O.P. no 1 sent a letter to
opposite party no. 2 on 26/03/2021 for taking appropriate
steps for the insurance claim of the complainant herein.

A. It is submitted that the complainant in order to take

benefit of his own wrong had initiated the captioned
complaint against the OP no.1 with the sole motive to
force the answering OP no.1 to kneel before his illegal
demand . In this regard complaint is liable to be
dismissed on this ground alone.

B.It is respectfully submitted that the answering OP no.1

wants to bring to the kind attention of this Ld. Forum
the following facts and circumstances which are
necessary for the proper adjudication of this caption
complaint:-
That the complaint took cash credit loan from the O.P no-
1 for his business.
That the complainant bring a Standard Fire & Special
Perils Policy with the O.P No-2 herein.

(a) Several times I informed / advised to the

complainant through phone that you should
contact the insurance company i.e. Opposite
Party no-2 herein. The complainant is not also a
layman as he signed his Complaint and Affidavit
in English.
That under Section 2 (11) of Consumer Protection Act, 2019
defines Deficiency of Service as “any fault, imperfection,
shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any
law for the time being in force or has been undertaken to be
performed by a person in pursuance of a contract or otherwise in
relation to any service and includes (a) any act of negligence or
omission or commission by such person to the consumer and (b)
deliberate withholding of relevant information by such person to
the consumer.” So the bank is not an insurance company. It is
not a place to claim the insurance.

(b)

In view of the facts and circumstances stated above it is

crystal clear that there had been no cause of action arisen
in favour of complainant and against the answering OP no -1
for filing the captioned complaint. In view of the same
captioned complaint is liable to be dismissed on this ground
alone.

That the answering OP no-1 craves leave of this Ld. Forum to

add, amend and vary its reply and to further produce any
oral or documentary evidence, which may come across during
the pendency / hearing of this Ld. Forum.

-:Prayer:-

It is therefore most humbly and respectfully prayed that

this Hon'ble Forum in the interest of justice and equity may
graciously be pleased to ---

(a) Dismiss the captioned complaint along with

exemplary cost in favour of the answering OP no-
1 i.e. Bank of India Contai Branch.

(b) Pass any such further or other order(s) as it

may be deemed fit and just by this Ld. Forum in
 the interest of justice.

Submitted on

Before the Notary Public at Tamluk

AFFIDAVIT

I, Sri Souvik Prakash Biswas , S/o – Saroj Kumar Biswas,

aged about – 30 years, residing at Roopkatha Apartment ,
Flat No-2B,161,B.N Road, Parnasree Pally, Kolkata, West
Bengal, PIN - 700060, by Religion - Hindu, by Occupation -
Service(Presently posted as Branch Manager, Bank of
India,Contai Branch) do hereby solemnly affirm and declared
on oath as follows:-

1. That I am the O.P.No-1 of this

suit/complain and well conversant with
the facts and circumstances of this case.

2. That the statements made in paragraph

above of the forgoing objection are true
to my knowledge and rests are my
submission before this Ld. Forum.

Signature of the deponent

Identified by me
Advocate