Punjab

Ludhiana

CC/21/444

M/s Royal Punjab wine - Complainant(s)

Versus

United India Insurance Company Limited - Opp.Party(s)

Omesh Kumar

10 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 444 dated 24.09.2021.                                                       Date of decision: 10.02.2023.

 

M/s. Royal Punjab Wines, 489-L, Model Town, Ludhiana through its partner Sh. Santee Kumar S/o. Late Sh. Raj Kumar, R/o. G.T. Road, Sahnewal, Near Bhambri Hospital, Ludhiana.                                                                                                                                                             ..…Complainant

                                                Versus

United India Insurance Co. Ltd., Divisional Office No.1, Pakhowal Road, Near Nehru Sidhant Kender, Ludhiana through its Senior Divisional Manager.                                                                                            …..Opposite party

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Nitin Kapila, Advocate.

For OP                           :         Sh. D.R. Rampal, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that the complainant is a partnership firm and Sh. Sanjeev Kumar is one of its partner as per partnership deed executed on 14.03.2019. The complainant firm obtained Money Insurance Policy No.2007001219P108864720 of Rs.35,00,00,000/- (Rupees Thirty Five Crores only) valid from 08.10.2019 to 07.10.2020 from the opposite party for covering the risk of money in transit as per which the opposite party is responsible for loss of money in transit between the premises of the insured and bank or post office or vice versa. The partner of complainant M/s. Royal Punjab Wines are running the said firm for their livelihood. The complainant stated that on 19.03.2020, Sh. Amit Kumar, Cashier/Authorized employee of the complainant along with driver Pawan Kumar went to ICICI Bank, Ferioze Gandhi  Market, Ludhiana to deposit the money of Rs.20,10,000/- with the bank and kept the bag containing money in the bank near the cashier of the bank and he came out of the bank to call Mr. Jaspal Singh to attend the bank and within few minutes when he returned back to bank he found the bag missing and the money was stolen. He enquired from the cashier of the bank and other people but could not find the bag. The insured immediately informed the opposite party and gave intimation with regard to loss and also got lodged one FIR No.98 dated 19.03.2020 under Section 380 I.P.C. at Police Station Division No.5, Ludhiana. All the relevant documents were supplied to the opposite party. The opposite party appointed M/s. Rajiv Arora & Company, Amritsar to survey and assess the loss suffered by the complainant who surveyed the mater and inspected the spot and gave his detailed survey report dated 11.01.2021 finding the loss of the insured as genuine one and the same is duly covered under the terms and conditions of the insurance policy. However, the surveyor round of the loss to the tune of Rs.20,00,000/- and deducted Rs.1,000/- from the said loss as excess clause as per the policy and assessed the loss of the insured at Rs.19,99,000/-.  The complainant received the copy of report through email dated 09.03.2021 which is self explanatory and surveyor has explained each and every aspect and queries so raised by officials of the insurance company. The complainant has also supplied the untraced report dated 20.11.2020 for finalizing the claim and also provided copy of order dated 12.12.2020 passed by the court of Sh. Vikrant Kumar, ACJM/Presiding Officer National ok Adalat, Ludhiana accepting the untrace report but the opposite party lingered on the mater on one pretext or the other. The complainant also issued several emails explaining the queries raised by the opposite party and also requested them to settle the claim. Emails dated 23.03.2021 And 10.04.2021 were also sent to Sh. Ashok Paul, Senior Divisional Manager and Sh. P.S. Gujjral, Chief Regional Manager respectively but to no effect. The complainant further stated that the complainant approached the opposite party for early settlement who pressed that the claim will be settled on substandard basis. However, there is no reason to treat the claim on substandard basis as there was no violation of any terms and conditions on the part of the insured and the claim is duly payable by the opposite party. The complainant further stated that unfortunately, it received one repudiation letter dated 15.04.2021 from the opposite party vide which the opposite party has treated the claim as no claim as per exclusion clause No.2 and General Terms and Condition No.3. There is no violation of terms and conditions and the claim of the complainant is not falling under any exclusion cause. Sh. Amit Kumar was working as cashier and he was also authorized officer of the complainant to deposit the money in the bank and he has been regularly depositing the money with the bank on behalf of the complainant. The complainant further submitted that the General Condition No.3 says that insured shall take all reasonable steps to safeguard the property insured against accident, loss or damages. However, said Amit Kumar was also accompanied by driver Pawan Kumar for depositing the aforesaid money in the bank and he was not alone at the time of carrying the money from the premises of the insured to bank. The said money was stolen from the premises of the bank itself and there was no negligence on the part of the insured or its authorized employee. The opposite party has considered that there was gross negligence on the part of the insured and the said fact is self-contradictory. Even as per terms and conditions of the insurance policy, the negligence of the employee is also covered under this policy. As per Column (q) Money in transit by insured’s authorized employee(s) occasioned by Robbery, Theft or any other fortuitous cause as detailed in Section I – the insurance company is liable to cover the said loss. In view of the aforesaid clause the insurance company is liable to pay the loss suffered by the insured on account of fortuitous cause. Fortuitous means unforeseen and unplanned manner and in view of the said facts, the loss of insured is very much covered under this very cause i.e. loss due to fortuitous cause and the insurance company cannot escape from its liability8 to pay the loss suffered by the insured. The complainant served one opinion cum notice dated 17.05.2021 through his counsel upon the opposite party and also sent email dated 24.05.2021 go Sh. P.S. Gujjral, Chief Regional Manager of opposite party and email dated 25.05.2021 was sent to customer carte cell of the opposite parties. The said requests of the complainant were received by all the officers of opposite party but they did not settle and pay the genuine claim of the complainant. However, the opposite party sent a vague reply dated 08.06.2021 through counsel Sh. Rajan Chand, Advocate denying the liability of the opposite party. The complainant has suffered loss in business besides suffered mental pain, agony and harassment on account of deficiency in services on the part of the opposite party. In the end, the complainant prayed for setting aside the repudiation letter dated 15.04.2021 and to direct the opposite party to pay the amount of Rs.20,10,000/- along with interest @12% per annum along with compensation of Rs.5,00,00/- besides litigation expenses of Rs.50,000/-.

2.                Upon notice, the opposite party appeared and filed written statement. In the written statement, the opposite party assailed the complaint  on the ground of maintainability, suppression of material facts and for non-joinder of necessary parties. The Opposite party alleged that the complainant firm is not registered with the Registrar of Firms and the complainant has not submitted the Form “A” and “C” to show the registration of the company and its partners and the same is liable to be dismissed on this ground. The opposite party submitted that due and proper services have been provided by it and the complaint of the complainant was duly scrutinized by the competent official who found that the complainant has violated the terms and conditions of insurance policy and as per Clause No.3 of General Terms of the Policy, the insured shall take all reasonable steps to safeguard the property, insured against accident, loss or damages and as per Exclusion 2:- The company shall not be liable in respect of loss of money entrusted to any person other than the insured or an authorized employee of the insured. The opposite party alleged that the claim of the complainant was not admissible under the terms and conditions of the insurance policy and was repudiated by their competent authority vide repudiation letter dated 15.04.2021. Moreover, intricate questions of law and facts are involved in this case and same cannot be decided summarily as the case requires elaborate evidence and only civil court is competent to decide the present complaint.

                   On merits, the opposite party reiterated the crux of averments made in the preliminary objections and has denied any deficiency in service on its part. The opposite party admitted the insurance of money Insurance policy valid from 08.10.2019 to 07.10.2020. The opposite party alleged that the parties are governed by the terms and conditions of insurance policy which is a contract in itself and parties cannot resile from the said contract and are bound by the spirit of the said contract. The opposite party alleged that there is negligence on the part of the said employee of the complainant and he did not take due precaution to safe the bag containing the amount and was required to take reasonable steps to safeguard the money from the said loss. The opposite party alleged that they received one intimation dated 20.03.2021 regarding alleged loss of complainant and it deputed M/s. Rajiv Arora & Co., Amritsar as surveyor to assess the loss and survey the case who issued emails, reminders to the complainant to supply the documents and opposite party also demanded the required documents i.e. Claim Form duly signed, copy of final police report, copy of cash book for last six months, copy of bank statement ICICI Bank Feroze Gandhi Market for last six months, Audit Balance Sheet with ITR for last three years and copy of FIR. The complainant has not provided the said documents to the surveyor at the earliest and it delayed the mater. The opposite party also called upon the surveyor for earlier submission of its survey report who submitted his survey report dated 11.01.2021 assessing the loss at Rs.19,99,000/-. Certain queries were raised but the said surveyor did not rightly reply those queries and he formed the opinion as per convenience of the complainant. The opposite party further alleged that it sought one legal opinion from Sh. Sumeet Jain, Advocate who formed his legal opinion dated 23.03.2021 and opined that there is violation of Clause 3 of General Terms of Insurance policy and also formed his opinion that since there is violation of terms and conditions of insurance policy, the policy holder is not entitled to any claim. On receipt of said legal opinion dated 23.03.2021, survey report dated 11.01.2021, the claim of the complainant was minutely scrutinized by the competent authority and it found violation of Clause 3 of General Terms and Conditions and Exclusion Clause 2 and found that claim is not admissible under the policy and the same was repudiated by competent authority vide repudiation letter dated 15.04.2021. The opposite party denied any negligence and deficiency in service on its part and in the end, has also prayed for dismissal of the complaint.

3.                In support of his claim, Sh. Sanjeev Kumar, Partner of the complainant firm tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of partnership deed dated 14.03.2019, Ex. C2 is the copy of Money Insurance Policy for the period from 08.10.2019 to 07.10.2020, Ex. C3 is the copy of FIR No.98 dated 19.03.2020, Ex. C4 is the copy of order dated 12.12.2020 of Sh. Vikrant Kumar, Presiding Officer, National Lok Adalat, Ludhiana, Ex. C5 is the copy of email dated 09.03.2021, Ex. C6 is the copy of Final Survey report dated 11.01.2021 of Rajiv Arora & Co., Ex. C7  to Ex. C9, Ex. C12 and Ex. C13 are the copies of emails, Ex. C10 is the copy repudiation letter dated 15.04.2021, Ex. C11 is the copy of opinion dated 17.05.2021 issued by the complainant through counsel to the opposite party, Ex. C14 and Ex. C15 are the copies of courier receipt, Ex. C16 is the reply to legal notice dated 17.05.2021 of the complainant sent by opposite party on 08.06.2021, Ex. c17 is the copy of driving licence of Sanjeev Kumar and closed the evidence.

4.                On the other hand, counsel for the opposite party tendered affidavit Ex. RA of Sh. Maneesh Kumar Singh, Divisional Manager  of the opposite party along with documents Ex. R1 is the copy of letter dated 20.03.2020 written by the complainant to opposite party, Ex. R2 to Ex. R10 are the copies of emails between the parties, Ex. R11 is the copy of money insurance claim form dated 21.03.2020, Ex. R12 is the copy of news item dated 20.03.2020, Ex. R13 is the copy of Final Survey Report dated 11.01.2021 of Rajiv Arora & Co., Ex. R14 is the copy of bill  dated 11.02.2021 of Rajiv Arora & Company, Ex. R15 is the copy of legal opinion dated 23.03.2021, Ex. R16 is the copy of repudiation letter dated 15.04.2021, Ex. R17 is the copy of reply to legal notice sent by opposite party on 08.06.2021, Ex. R18 and Ex. R19 are the copies of postal receipts, Ex. r20 is the copy of Money Insurance Policy from 08.10.2019 to 07.10.2020 and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, rejoinder, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.   

6.                The complainant, a partnership firm incorporated vide partnership Ex. C1 was a holder of Money Insurance Policy No.2007001219P108864720 Ex. C2 having its validity from 08.10.2019 to 07.10.2020 which covered money in transit to the tune of Rs.35,00,00,000/- (Rupees Thirty Five Crores only). The following are the relevant conditions of policy Ex. C2 for the adjudication of the matter in hand and the same are reproduced as under:-

‘The Company here by agrees subject to the terms, conditions and exclusions herein contained, endorsed or otherwise expressed hereon, to indemnify the insured against loss of

1. Money in Transit, by the Insured’s authorized employee(s), occasioned by Robery, Theft or any other fortuitous cause as detailed in Section 1.
2. money by burglary, robbery or hold up whilst in the insured’s premises as detailed in Section II in a safe Strongroom provided always that the limit of the company’s liability for any one loss shall in no case exceed the amount specified against the respective section in the said Schedule.

Section I

1. Money for payment of wages, salaries or for petty cash in direct transit from the bank to the insured’s premises from the time the cash is received at the bank by the insured or the authorized employee(s) of the insured until delivery at the premises or other place of disbursement and whilst there, until paid out provided that our business hour such cash be secured in locked safe or locked strongroom on the premises for a period not exceeding 48 hours from the time of arrival of such cash at the said premises or places of disbursements, Cheques drawn by the insured to provide for such cash are covered in transit from the premises to the bank.
2. Money other than described in (i) in the personal custody of the insured or authorized employee/s whilst in direct transit between the premises and bank or post office.
3. Money other than described in (i) and (ii) above belonging to the insured which is collected by an in the capital personal custody of the insured whilst in transit to the premises or bank within a period not exceeding 48 m\hours from the time of collection.

Section II

Money (Other than described above) whilst on the premises during the business hours and whilst secured in locked safes/ or strongroom on the insured’s premises, outside business hours.

Exclusions

          The company shall not be liable in respect of:

1. Shortage due to error or omission
2. Loss of money entrusted to any person other than the insured or an authorized employee of the insured.

Loss of money where the Insured or his employee is involved as principle or accessory. (However, loss due to fraud dishonesty of the cash carrying employee of the Insured, occurring whilst in transit and discovered within 48 hours is covered).

General

3. Reasonable Care: The insured shall take all reasonable steps to safeguard the property insured against accident, loss or damage.

7.                On 19.03.2020, one Amit Kumar, Cashier/authorized employee along with driver Pawan Kumar on vehicle make Mahindra Bolero bearing No.PB-10-HC-2773 reached the premises of ICICI Bank, Feroze Gandhi Market, Ludhiana to deposit the cash of Rs.20,10,000/- in a bag and stood in a queue before a cash counter of the bank. He came outside to have telephonic conversation with his companion Jaspal Singh after placing the bag on the counter of the cashier. On return, he found the bag missing. FIR No.98 dated 19.03.2020 was lodged under Section 380 I.P.C. at Police Station Division No.5, Ludhiana in which the stolen amount was also mentioned to be Rs.20,10,000/-. The claim was lodged by the complainant and one Mr. Rajiv Arora, Proprietor of M/s. Rajiv Arora and Co. was appointed as surveyor by the opposite party who visited the spot, collected relevant documents and also recorded statement of Amit Kumar and found him also on the rolls of the company on payment of salary of Rs.22,000/- per month. He also observed in his report ex. C6 that the money was in transit and reached the bank. Rajiv Arora further concluded that the loss is covered under the present policy except the negligence of the insured himself and the insured took all the reasonable care while sending the money from the office to the bank. He made the following recommendations, which are reproduced as under:-

“A sum of Rs.19,99,000/- (Ninteen Lakhs Ninety Nine Thousand Only) has been assessed by us as Loss suffered by the Insured. The insurer may indemnify the insured with this amount under the terms and conditions of the policy subject to availability of sufficient balance on the date of loss under the policy where total sum insured of money transit limit is Rs.35 Crores.”

After scrutinizing the claim file, survey report of Rajiv Arora, FIR and other supporting documents, the claim of the complainant was found inadmissible under policy and the claim was repudiated vide letter dated 15.04.2021 Ex. C10, the operative part of which is reads as under:-

“Your cashier kept the bag on bank counter unattended and without the custody of any authorized person and came outside the bank to call Mr. Jaspal Singh. In the meanwhile the bag has been stolen by some unknown person. This shows gross negligence on the part of your cashier. This is clear evidence of violation of policy terms and conditions.

As per clause 3 of general terms of policy that, “The insured shall take all reasonable steps to safeguard the property, insured against accident, loss or damage.

Exclusion 2:- The Company shall not be liable in respect of loss of money entrusted to any person other than the insured or any authorized employee of the insured.

On the basis of above, your claim is not admissible under the policy; hence your claim is repudiated.”

During the course of settlement of the claim, both parties admittedly exchanged emails.

8.                Now the point of consideration arises whether there was gross negligence on the part of Amit Kumar, cashier/authorized employee of the complainant firm?

9.                The FIR No.98 dated 19.03.2020 Ex. C3 was registered as per statement of Amit Kumar. Mr. Rajiv Arora, Surveyor also recorded his statement. The evidence on record shows that Amit Kumar was an authorized employee of the complainant firm and was on rolls of complainant firm. The cash was carried in a bag from the office of the complainant in a vehicle driven by Pawan Kumar and it safely reached in the premises of the bank. It may be taken into consideration that generally premises of the bank remains heavily guarded with the security personnel and CCTV surveillance also remains in place. Normally all the bank officials and customers remain under CCTV surveillance and in such secured places normally, theft, in a day broad light, is not expected to happen. It appears that relying upon the security of the bank, Amit Kumar left the bag unattended for few minutes and went outside. Sense of complacency is writ at large. Needless to say he could have been more vigilant and alert in due performance of his duties. While repudiating the claim, the opposite party could have taken these factors into consideration before arriving to the conclusion that there is a gross negligence on the part of cashier Amit Kumar.

10.              In this regard, reference can be made to 2022(2) Apex Court Judgment 281 (SC) in case title Gurmel Singh Vs Branch Manager National Insurance Company Ltd. whereby it has been held by the Hon’ble Supreme Court of India that in many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. While settling the claims, the insurance company should not be too technical…….

11.              In the given facts and circumstances, assuming the complainant to be negligent, the opposite party could not have repudiate the claim in toto. In such cases, the opposite party had been settling such claims by applying principle/guidelines governing non-standard claims. The Commission is also of the view that it is also fit case where the norms of settling the claim as non-standard basis could have been applied by the opposite party. So it would be just and appropriate, if the opposite party is directed to settle and reimburse the claim of the complainant on non-standard basis on the assessed value of Rs.19,99,000/- as per survey report Ex. C6 = Ex. R13.

12.              As a result of above discussion, the complaint is partly allowed and the opposite party is directed to settle and reimburse the claim of the complainant on non-standard basis on the assessed value of Rs.19,99,000/- as per survey report Ex. C6 = Ex. R13 within 30 days from the date of receipt of copy of order failing which the complainant shall be held entitled for interest @8% per annum from the date of order till actual payment.   However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

13.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:10.02.2023.

Gobind Ram.

 

 

Royal Punjab Wines Vs United India Ins. Co. Ltd.                 CC/21/444

Present:       Sh. Nitin Kapila, Advocate counsel for the complainant.

                   Sh. D.R. Rampal, Advocate counsel for the OP.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed and the opposite party is directed to settle and reimburse the claim of the complainant on non-standard basis on the assessed value of Rs.19,99,000/- as per survey report Ex. C6 = Ex. R13 within 30 days from the date of receipt of copy of order failing which the complainant shall be held entitled for interest @8% per annum from the date of order till actual payment.   However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated:10.02.2023.

Gobind Ram.