Complainant: Manager (H.P.& Leese), Toni Vargheese, For
Manappuram Finance Ltd, Manappuram
House, Valappad.
Opposite Party: Divisional Manager, Oriental Insurance
Company Ltd, 1st Floor, Maheswari Building,
M.G.Road, Thrissur.
O R D E R
By Dr.K.Radhakrishnan Nair, President(In Charge):
The antecedents of the case.
This is a case originally filed on 29.10.11 along with another case Cc.552.11. On 9th November 2011 both these cases were dismissed on the ground that ‘It is a commercial undertaking and it is not a self employment under taking, the motive of which is strictly profit making”. As such, the complainant is not a consumer as defined by the Consumer Protection Act. So the complainant has no locus stands to approach this Forum. Both the cases were appealed before the Horible state commission under Appeal Nos.250/12 & 251/12 and a common judgement was passed on 04/04/12. The orders of the Forum in both the cases were set aside finding that their orders are erroneous as the question of law on the point is settled vede a number of decisions eg. M/s Horsolia Motors Vs.M/s National Insurance Co. Ltd(2005CPJ(1) Na 27) As held in the above, the person who takes Insurance Policy to cover the envisaged risk does not take the policy for commercial purpose. Policy is only for indemnification and actual loss. It is not intended to generate profit”. Bothe the cases were posted before this Forum on 29.05.2012 as directed by the Horible state commission.
Facts of the Case.
2. The case of the complainant as stated in the original complainat is that complainant is a consumer and an Insurance Policy holder of a Fredility Guarantee Policy bearing the No.441100/48/2007/1502 with the opposite party. Besides, a memorandum of understanding had been extended in between the complainant and the opposite party to cover enter alia fire, dacoity and infidelity in this branches all over India including losses of money if any during its money transfer from branches to branches. As per the policy, misappropriation of money by the complainant’s employees and any other losses due to their international mischievous acts with a deliberate intention and purpose of cheaty, the opposite party is liable to endemny the losses on duly lodging the claim as press in to by the MOV, by the comp[lainant.
3. The specific case of the complainant was that K.Sakeer Muhammed and Harshesh K.M. who are employees at the Koonoor branch of the complainant had taken away and misused fifteen packet gold weighing about 219.2grams pledged by the customers. Mr. Sakeer Muhammed is the Head of the Branch at Kunnoor and Mr.harshesh is the Asst.Branch Head as assessed by their internal Audit Team the loss of the opposite party amounts to Rs.2,57,757/-(Two Lakhs Fifty Seven Thousand Seven Hundred and Fifty Seven Only). Mr. Shajini Manager of the Kunnoor Branch had lodged a complaint before the Kunnoor Police Station on 07/09/2007 and FIR was registered under Crime No.929/2007 against those employees named above being the accuseds. Due intimate was given to the opposite party as well as submitted the Fidelity Guarantee Claim, Form properly filled by the complainant. As advised by the opposite parties following documents were also sent through post such as (a)Fidelity Guarantee claim form (b)Copy of the FIR, (c) audit Report (d) Bio data of the miscreants, € Copy of their appointment order, (f) details of their security Deposits (g) Transfer orders of both, (h) Suspense Order of both, (i) Memo of charges (i) Domestic enquiry notices,(j) a copy of their termination order. Detailed report of the misappropriated pledged gold, as appointed, an insurance Surveyor hand inspected the Branch and assessed the loss. Survey report was also produced before the opposite party. A copy of the Final Report of the SHO of Kunnoor P.S in Crime No.929/2007 produced before the judicial First Class Magistrats Kunnoor has also been sent to the opposite party through post. The complainant has indemnified the customer’s loss by purchasing an equal weight of gold from a jewellary shop. Opposite party is liable to pay the loss of Rs.2,57,757/- which is validity covered under the policy in dispute. The opposite party repudiated the claim on 28/02/2011 which amounts to deficiency in service as well as unfair trade practice.
4. The refer it is prayed that the opposite party be directed to pay a sum of Rs.2,57,757/- being the actual loss and Rs.50,0000/- towards compensation. As directed by the Horible state Commission on the finding that complainant is a consumer the summary proceeding had to commence on 29/05/2012. On 30/07/13 the case stands admitted. Opposite party appeared through counsel. Version was filed. Opposite party denies their liability through admits the issuance of policy. As admitted the opposite party had issued a Fedelity Guarantee policy in dispute covering 800 unnamed employees, employed in various branches of the opposite party, the Insured. Based on the survey report the opposite party vehementhly oppose the contention of the complainant with regard to the cause of loss. As admitted they had failed to keep the gold ornaments in the prescribed safe and instead left the same inside the table. The very acts tentamount to a Branch of the rules and regulation on the part of Employees. As traversed further a more Branch of rules and regulations is not sufficient enough to hold the employee quality of committee Fraud. Since there is no fraud and dishonesty on the part of the employees of the complaint no liability cab be emposed up on the opposite party. On a close examination of police reports and its challenging by the complainant for a name sake objection reveal that it is frivolous attempt on an experimental basis to make an unjust enrichment knowing fully well that there is no fraud or dishonesty on the part of their employees. The opposite party further avers that theft as concern lated under section 381 IPC is however, not covered under the policy. Theft need not necessarily involve Branch of Trust. Theft by the employees as defined under the Section 381 IPC is is quite distinet from the criminal branch of trust as defenied under section 408 IPC.
5. Since the alleged employees have not committed any criminal branch of trust and or dishonesty and/ or frand ther by cansing a monetary loss the claim preferred by the complainant does not come with in the scope of the policy. It is not enough to prove that a loss has been caused due to the negligence of the employees. In the above circumstance only the claim was repudiated by a letter dated 21/03/2011. As there is o lapse delays fault or shortcoming amounting to deficiency in service the complaint may be dismissed with cost.
6. The case was then posted for evidence. The following points are considered. (1) The scope of the infidelity guarantee policy and its legality. (2) Whether the complainant has succeeded to prove the necessary ingredients to come with the purview of the policy cover. (3) is there any deficiency in service on the part of the opposite party? (4) If so, what reliefs and costs?
7. Both parties fled their proof affidavits. Complainant produced 9 documents and marked as Ext.P1 is Ext.P9. ext.P1 is the MOU, Ext.P2 is the Intimation of claim dated 05/10/2007, Ext.P3 is the letter dated 29/11/07 forwards the claim documents, Ext.P4 is the Fidelity Guarantee Claim Form, Ext.P5 is the letter dated 24/01/2011 forwards Final police regard to DO Thrissur, Ext.P6 Letter dated 11/03/2011 to M/s Manappuram G.F&L, Ext.P7 Final report of the Police U/S 173 CRPC, Ext.P8 is promissory Note of pledged jewellary services, Ex.P9 Authorisation letter. From the side of the opposite party 6 documents were produced Marked as Ext.P1 to P6. Ext.R1 is the Fidelity Guarantee Policy schedule worth Brochuse, Ext.R2 is the Survey Report, Ext.R3 FIR is Crime No.929/200, Ext. R4 is Final Report, Ext.R5 is the Order of the Judicial magistrate accepting the final report, ext.R6 is the Repudiation letter 21/03/2011.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the 26th day of December 2019.
Sd/- Sd/- Sd/-
Sreeja S. Dr.K.Radhakrishnan Nair P.K.Sasi,
Member Member President.
Appendix
Complainant’s Exhibits
Ext.P1 DD dated 20.03.2015 (Not signed)
Ext.P2 Lawyer’s Notice
Ext.P3 Acknowledgement Card
Ext.P4 Computer generated letter
Ext.P5 Computer generated letter for showing the reason for rejections.
Id/-
Member
