Before the Hon’ble President,

District Consumer Disputes Redressal Forum,

Uttar Dinajpur at Raiganj.

(Super Market Complex, Block – 1, 1st Floor.)



Consumer Case No.: 15 / 2008.

Date of filing : 11.04.2008.

Date of final order : 27.03.2009.



PRESENT



A) Sri Saurish Chakraborty President.



B) Smt.Swapna Kar Member.





Raiganj Co-operative Agriculture &

Rural Development Bank Limited,

Represented by the

Chief Administrative Officer,

Kumardangi, P.O. and P.S. – Raiganj,

District – Uttar Dinajpur. Complainant.



Vs



1. Divisional Manager,

National Insurance Company Limited,

Malda Divisional Office,

93 A Rabindra Avenue,

P.O. + P.S. + District – Malda.



2. The Branch Manager,

National Insurance Company Limited,

Raiganj Branch, B. L. Market,

Mohanbati, P.O. and P.S. – Raiganj,

District – Uttar Dinajpur. Opposite Parties.







Judgment

Date: 27.03.2009.



This case arises out of a petition of complaint filed Under Section 12 of the Consumer Protection Act, 1986 by the petitioner, Raiganj Co-operative Agricultural and Rural Development Bank Limited, to be represented by the Chief Administrative Officer, Kumardangi on 11.04.2008 against the opposite parties, Divisional Manager, National Insurance Company Limited, Malda Divisional Office, Malda and the Branch Manager, National Insurance Company Limited, Raiganj Branch, Uttar Dinajpur for an order to pay the theft amount of Rs. 1,78,745.66 along with interest at the rate of 9 percent per annum from the date of claim and an award of rupees 1,00,000.00 only as compensation and as litigation cost of Rs. 10,000.00 only and any other relief or relieves as the Forum deems fit and proper.



In a nutshell complaint story is that complainant purchased an insurance policy bearing No. 150701/774006/95 from opposite party No. 2 for the period from 01/04/95 to 31/03/06 for the safety and security of the operation of the banking concerned.



In one of the branch of the complainant at Dalkhola held burglary and that incident was noticed on 05.01.1999, Monday at 10:00 am. Thereafter, FIR was lodged Karandighi PS on 05.01.1999 and on said date in presence of Karandighi police the lost assessed was amounting to rupees 1,78,745.66 only from the vault.



Petitioner send a letter to opposite party No. 2 where he wrote regarding the incident and thereafter petitioner claiming burglary claim of rupees 1,78,745.66 before the opposite parties after fulfill of all formalities. Regarding the claim’s matter some corresponding were held between the petitioner and opposite parties but according to the petitioner; finally without any basis or illegally repudiated the claim as “NO CLAIM” by the opposite parties deliberately. For that reason deficiency in service is proved on the part of the opposite parties and petitioner suffers ir-repairable loss due to non-payment of the theft amount.



So, the petitioner not getting any alternative has prayed before this Forum to get appropriate relief or relieves.



On the other hand, opposite parties, National Insurance Company Limited also by filing a written version in paragraph wise statement on 21.08.2008 has contested this case, denying inter alia, all the material allegations against them, contending therein that the case is not maintainable in its present form and law and as per their provisions of terms and conditions of policy and according to the utmost provision of Consumer Protection Act, 1986. According to them as per report of the surveyor the loss is excluded from the scope of the policy under exclusion no. b & H; hence, they have no liability and they are unable to entertain petitioner’s claim. Not only that the incident for which the instant case has been filed, is too old and long delay from 1999 to 2006 and in that period petitioner unlawfully gain and utilize the said public money through practice of trickery and to avoid the mandatory provision for explain the grounds of limitation. So, this case is barred by limitation.



In view of the above facts and circumstances opposite parties prayed before this Forum, to reject the petitioner’s alleged petition against these opposite parties with cost.



To prove the petitioner’s case petitioner files some documents also.



Decisions with reasons



This case has arisen out of a rejection of insurance claim made by the complainant against the O.P. Nos. 1 and 2 (hereinafter called as O.P. / insurer). The fact already detailed above explicitly says that there had been a burglary from the vault of the bank premises at Dalkhola of the complainant / bank. Vault contained a huge amount of money. As per the case of the complainant the money was insured with the O.P. / insurer. So, a claim has been made against the said burglary before the O.P. / insurer. But, the claim was finally rejected. In the meantime police was informed and a specific case was started by Karangidhi Police Station.



Now, we find from the case of the complainant that burglary was noticed on 05.01.1999 and a no claim intimation was intimated to the complainant by the O.P. / insurer on 09.12.1999. That is to say the claim-matter or dispute was disposed once for all on and from 09.12.1999. There was no chance of revival of the claim dispute. There is no any scope for taking the matter further with O.P. / insurer. So, cause of action to file this complaint arose on from 09.12.1999 and continued for two years thereafter.



But, this complaint has been filed on 11.04.2008 long-long after the statutory period of two years elapsed from the date of raising of cause of action. Complainant has not filed any petition for condonation the limitation or delay in bringing the complaint before this Forum. So, taking all these into consideration this Forum is of the opinion that the present complaint is barred by limitation.



Secondly, the case of the complainant is also hit by merit. There has been an argument from the side of O.P. / insurer, that in course of police investigation of burglary, an employee of the complainant / bank was implicated and he was brought to trial and finally convicted of the offence. Appeal against the conviction is pending. These arguments, ware countered by the complainant submitting that an appeal may be pending against the conviction, there is no bar to settle the claim because criminal case arising out of the burglary and submission of claim before the O.P. / insurer are two different things and should be looked into from two different angles.



Giving due regard to the argument advanced on behalf of the complainant we hold that argument is not at all acceptable.



There was a clause in the bankers’ indemnity policy document that O.P. / insurer will not be liable for any loss due to any act or omission committed by concerned employee after discovery of loss in which the said employee was involved.







So, fact admitted that one employee of the bank was found guilty by a competent court for loss of the property which was insured with the O.P. / insurer and for the loss of which the complainant bank put a claim for settlement. It must be noted unless the employee who found guilty by a competent court is not exonerated remains guilty in the eye of law. So, the clause of the policy, which forbids the settlement of claim over money that, was lost due to act and omission of one of the employees of the complainant bank is applicable to our present case and we do not find O.P. / insurer acted illegally when it refused to settled the claim.



So the present complaint fails and no relief this Forum can award in favour of complainant / bank.



Fee paid is correct.



Hence it is ordered,



that the complaint is dismissed on contest without cost against O.P. Nos. 1 and 2.



let true photo copies of this final order be supplied to the parties free of cost.









Sd/-……………….. Sd/-………………

Swapna Kar Saurish Chakraborty

Member, President,

D. C. D. R. F., D. C. D. R. F.,

Uttar Dinajpur, Raiganj. Uttar Dinajpur, Raiganj.