S.A. Kader, President This is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

2. The complainant is a company incorporated under the Indian Companies Act carrying on business at Madras. It took an Insurance cover from the first opposite party under Fire policy for the period from 13.11.1989 to 12.11.1990 covering the building, plant and machinery at its factory at Tadepalli, Andhra Pradesh for a sum of Rs. 86,60,000/-, and a premium of Rs. 39,018/- was also paid. The building, plant, and machinery are mortgaged with the second opposite party, Andhra Bank and the policy therefore stands in the name of the second opposite party and is subject to the agreed bank clause. The complainant purchased the factory from M/s. Vinod Solvextracts Pvt. Ltd. and possession was taken in 1988 though the actual conveyance was executed only on 30.11.1989. The policy was therefore taken in the name of the seller and the Andhra Bank, the second opposite party. On 9.5 .1990 and 10.5.1990 the insured properties were extensively damaged as a result of cyclonic storm and a claim was made for Rs. 4,89,189/-. Another claim was also made for damage of stock covered under a different policy. The first opposite party offered to settle the claim for damage to stocks while rejecting the claim for damage to building, plant and machinery. This amounted to deficiency of service and negligence. Hence this complaint claiming payment of Rs. 4,89,189/- with interest at 24%.

3. The first opposite party raised the following contentions: The complainant is not the insurer and the complaint has therefore to be dismissed in limine. The insurer is M/s. Vinod Solvextracts Pvt. Ltd. and the second opposite party and the complaint filed by this complainant is not maintainable. The mere fact that the complainant has paid the premium cannot entitle it to be treated as insurer. There is no privity of contract between the complainant and the first opposite party. Though the transaction of sale of property of plant and machinery by M/s. Vinod Solvextracts Pvt. Ltd. in favour of the complainant has been completed on 30.11.1989, the insurer was not intimated about the same and it was only six months after the accident that intimation has been given. It is pointed out that under the Exclusion Clause the liabilities can be avoided in the event of non-disclosure of any material facts. Both the complainant and the bankers have committed breach in not notifying the insurer about the change of ownership and the claim is therefore unsustainable. Even the usual bank clause cannot save the claim.

4. The second opposite party, Andhra Bank has filed a separate counter. It is admitted that the complainant insured the building, plant and machinery of its factory at Tadepalli with the first opposite party for a sum of Rs. 86,60,000/-. The complainant has purchased the factory from M/s. Vinod Sol vex tracts Pvt. Ltd. and under the terms and conditions of the transfer, the assets liabilities and amounts due to M/s. Vinod Solvextracts Pvt. Ltd., from third parties are transferred to the complainant. Since this opposite party is the bankers to M/s. Vinod Solvextracts Pvt. Ltd., the complainant is bound by all the terms and conditions of the agreement between this opposite party and M/s. Vinod Sol vex tracts Pvt. Ltd. The building, plant and machinery of the insured are mortgaged to this opposite party. The first opposite party is bound to pay the insurance amount to this opposite party whether it considers to be the transferor of the factory to be the rightful claimant or the transferee of the factory to be the rightful claimant. The first opposite party is aware of the mortgage and the right of this opposite party and hence the first opposite party is bound to pay the amount to this opposite party. As per the trade practice and as per the terms and conditions of the policy, the first opposite party cannot refuse to pay the amount in respect of damages caused to t