IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 26th day of September, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. No. 48/2010 (Remanded)
Between:
The Adhyapaka Co-operative Bank-
Ltd. No. A-300, Puthussery,
Pathanamthitta Dist., Pin – 689 602,
Represented by its Secretary.
(By Adv. Cherian Varghese) … Complainant.
And:
1. The New India Assurance Company Ltd.,
(A Subsidiary of General Insurance-
Corporation of India), represented by
its Branch Manager, Changanassery-
Branch, First Floor, Salim Buildings,
Near HPO, M.C. Road, Changanassery.
2. The New India Assurance Company Ltd.,
(A Subsidiary of General Insurance-
Corporation of India), represented by
its Branch Manager,
Pathanamthitta Branch.
(By Adv. S. Manoj) … Opposite parties.
ORDER
Smt. K.P. Padmasree (Member):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. Complainant bank is a society registered under the Kerala Co-operative Societies Act and Rules and is functioning for the welfare of the teachers. The said society was registered in the year 1972. The bank is functioning with its head office at Puthussery, Pathanamthitta District. The transit of money from the complainant bank was insured with the opposite party for the year from 19.03.2003 to 18.03.2004 as per the insurance policy bearing No. 760102/48/02/01675. On 03.06.2003, as directed by the complainant bank, Mr. V.A. Vijayan, Attender in the Thiruvalla Branch submitted a cheque for an amount of ` 1,00,000 in the Thrivalla Main Branch of the Pathanamthitta District Co-operative Bank and collected the amount. While on traveling in a private bus, aforesaid money was stolen by somebody. On the same day itself, Secretary of the complainant bank intimated the matter of theft to the opposite parties. The matter was also intimated to the police and the police registered a case as crime No. 346/2003.
3. Complainant bank sent a claim statement to the opposite parties requesting to disburse the amount lost by theft which was not honoured by the insurance company. The secretary again sent a reminder letter to the opposite parties. But they did not turned up. On 26.11.2003, complainant issued a legal notice to the opposite parties demanding the disbursement of the lost amount. Opposite parties issued reply notice with baseless contentions. The act of the opposite parties is a clear deficiency in service which caused financial loss to the complainant bank. Hence the complainant filed this complaint seeking a direction to the opposite parties for disbursing the amount of `1,00,000 lakh with interest, along with cost and compensation.
4. Opposite party entered appearance and filed version with the following contentions. Complaint is barred by limitation. So the suit is not maintainable in law and facts. They also filed a separate petition as IA-107/2010 challenging the maintainability on the ground of limitation. Further they admit the insurance policy. It is also admitted that complainant has submitted a claim before the 1st opposite party and the same is not considered due to the non-submission of relevant documents in support of the claim. Opposite parties denies all allegations of the complainant. Opposite parties never violated the policy condition, whereas the complainant has violated the policy condition by not producing the relevant documents of claim and also not properly intimating the incident to the opposite parties. There is no deficiency of service from the part of the opposite parties. Hence the opposite party prays for the dismissal of the complaint with their cost.
5. On the basis of the preliminary objection of the opposite parties, the question of limitation raised through I.A. 107/2010 was heard initially. According to the opposite parties, this complaint is barred by limitation. The alleged occurrence was on 03.06.2003 and the complaint is filed only on 10.03.2010 i.e. more than 7 years from the date of starting the cause of action. On the basis of the arguments of the opposite parties and on the basis of the available materials on record and in the absence of any cogent evidence for justifying the delay in filing this complaint, we find that this complaint is barred by limitation. Accordingly, I.A. 107/2010 is allowed, thereby the complaint is also dismissed.
6. Being aggrieved by the order of this Forum, the complainant filed an Appeal before the Hon’ble CDRC, Thiruvananthapuram as Appeal No. 227/2011. After hearing the matter, the Hon’ble CDRC allowed the Appeal and remanded the matter to this Forum with a direction for hearing both sides afresh and dispose of the question of limitation by a reasoned order. Accordingly, the question of limitation was heard again by this Forum on the basis of the additional materials submitted from the side of the complainant. The additional materials submitted by the complainant discloses that there is justification for the delay in filing this complaint after a lapse of 7 years and found that the objection raised in I.A. 107/2010 is not sustainable. Therefore, I.A. 107/2010 is dismissed.
7. Since the question of maintainability is found in favour of the complainant, the only point to be considered at this stage on the basis of the pleadings of the parties is whether this complaint can be allowed or not?
8. The evidence of this complaint consists of the oral evidence of PW1, PW2, PW3, PW4. Ext.A1 to A13 and Ext.B1. After closure of evidence, both sides were heard.
9. The Point:- The petitioner in this case is a co-operative bank. Their allegation is that they have an insurance policy with the opposite party against loss of money in transit as per Ext.A1 policy. On 03.06.2003 an amount of ` 1,00,000 of the bank was lost during transit due to theft. A crime was registered and the accused was arrested. The complainant filed a claim for the insurance amount before the opposite party which was not honoured by the insurance company. Hence the complainant filed this complaint for getting ` 1,00,000 with 18% interest along with cost and compensation.
10. In order to prove the complainant’s case, Bank Secretary filed proof affidavit and adduced oral evidence as PW1 and the documents produced by him were marked as Ext.A1 to A13. Three witnesses also examined for the complainant bank as PW2 to PW4. Ext.A1 is the policy schedule of New India Assurance Company. Ext.A2 is the copy of notice sent by the Secretary to the opposite party. Ext.A3 and Ext.A4 is the copy of FIR and FIS. Ext.A5 is the copy of claim form. Ext.A6 is the copy of reminder letter sent by the complainant to the opposite party. Ext.A7 is the photocopy of paper cutting regarding the arrest of the accused. Ext.A8 is the copy of legal notice sent to the opposite party. Ext.A9 is the reply to Ext.A8. Ext.A10 is the copy of the High Court Order. Ext.A11 is the copy of letter sent by the complainant to the opposite party. Ext.A12 is the certified copy of charge sheet. Ext.A13 is the pass book in the name of complainant bank.
11. On the other hand, the contention of the opposite party is that they had never violated the policy condition whereas the complainant has violated the policy condition by not producing the relevant documents within time which resulted in the non-settlement of the claim and hence there is no deficiency of service from the part of the opposite party. Therefore, the complainant is not entitled for any of the relief sought in the complaint and hence they argued for the dismissal of the complaint with cost of opposite parties.
12. In order to prove the contention of the opposite party, Branch Manager of the 2nd opposite party filed proof affidavit along with one document. On the basis of the proof affidavit, document produced is marked as Ext.B1. Ext.B1 is the policy conditions of insurance policy.
13. On the basis of the contentions and arguments of the parties we have perused the entire materials on record and found that there is no dispute between the parties with regard to the insurance policy. The main contentions raised by the opposite parties is the non-production of relevant documents along with claim form in time.
14. As per records it is found that the complainant bank intimated the matter to the opposite parties on the same day itself. Claim form submitted on 23.07.2003. But the opposite parties never issued a letter declining or refusing the claim put forwarded by the complainant. After getting legal notice they issued Ext.A9 letter demanding police report.
15. On going through the evidence, it is evident that claim form is submitted along with FIS, FIR etc. The delay occurred in submitting charge sheet is not the fault of the complainant. It is a technical delay due to the delay in getting copies from the police.
16. The insurance is a contract between the insurer and the insured. As per the records it is evident that the factum of damages sustained to the complainant was promptly and duly intimated to the insurer. Opposite parties have a contractual obligation to compensate the complainant. The silence on the part of the opposite parties is a clear deficiency in service which is not excusable. There is no justification for the negative attitude of the opposite parties who collected the policy amount from the complainant. Therefore complaint is allowable.
17. In the result, this complaint is allowed, thereby opposite parties are directed to pay the insured amount of ` 1,00,000 (Rupees One Lakh only) with interest at 9% per annum from the date of filing of this complaint till this date along with compensation of ` 5,000 (Rupees Five Thousand only) and cost of ` 1,000 (Rupees One Thousand only) to the complainant within 30 days of receipt of this order failing which complainant is allowed to realize the whole amount with 12% from today till the realization of the whole amount.
Declared in the Open Forum on this the 26th day of September, 2012.
(Sd/-)
K.P. Padmasree,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Mathew. K. Varghese
PW2 : Vijayan
PW3 : Anilkumar. K.N.
PW4 : K.V. Sam
Exhibits marked on the side of the complainant:
A1 : Photocopy of policy schedule of New India Assurance
Company.
A2 : Photocopy of notice sent by the complainant to 1st opposite
party.
A3 & A4 : Photocopy of FIR and FIS.
A5 : Photocopy of claim form.
A6 : Photocopy of reminder letter sent by the complainant to 1st
opposite party.
A7 : Photocopy of paper cutting.
A8 : Photocopy of advocate notice sent by the complainant to 1st
opposite party.
A9 : Photocopy of reply to Ext.A8.
A10 : Photocopy of the High Court Order.
A11 : Photocopy of letter sent by the complainant to 1st opposite
party.
A12 : Photocopy of certified copy of charge sheet.
A13 : Pass book in the name of complainant bank.
Witness examined on the side of the opposite parties: Nil.
Exhibits marked on the side of the opposite parties:
B1 : Policy conditions of insurance policy.
(By Order)
(Sd/-)
Senior Superintendent
Copy to: (1) The Secretary, Adhyapaka Co-operative Bank Ltd. No. A-300,
Puthussery, Pathanamthitta Dist., Pin – 689 602,
(2) The Branch Manager, The New India Assurance Company Ltd.,
First Floor, Salim Buildings, Near HPO, M.C. Road, Changanassery.
(3) The Branch Manager, The New India Assurance Company Ltd.,
Pathanamthitta Branch.
(4) Stock file.
