C.F. CASE No. : CC/08/38
COMPLAINANT : Mr. Amitava Das Roy,
Prop. of M/S Anjali Drugs,
346 KBM Chakdaha,
Dist. Nadia
OPPOSITE PARTY/OP : Branch Manager
The New India Assurance Company Ltd.,
Kalyani Branch, having its office at
A-9/13 (S), Kalyani, Dist. Nadia
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SMT SHIBANI BHATTACHARYA MEMBER
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 17th January, 2011
: J U D G M E N T :
In brief, the case of the complainant is that he is a holder of money policy of the OP being policy No. 512402/48/02/01288 covering a period from 21.02.03 to 20.02.2004 and the sum insured was Rs. 1,00,00,000/-. The complainant carries on business transactions with various pharmaceuticals companies and needs to transfer huge amount of money from one place to another. As per routine procedure the money collected from various transactions was deposited in the UCO Bank, Ranaghat Branch through its authorized employees. It is his further case that one Sukomol Das alias Jewel Das was an authorized employee of the complainant and was entrusted with the task of depositing the collection money to UCO Bank, Ranaghat Branch. On 21.07.03 amounting was Rs. 56,000/-, on 06.09.03 amounting to Rs. 50,200/-, on 16.09.03 the amount of Rs. 47,950/- and on 29.09.03 amounting to Rs. 1,01,700/- and on 17.11.2003 amounting to Rs. 41,100/-. Said Sukomal Das handed over the receipts of the deposit slips to the complainant, but the bank’s record revealed that the said amount referred above were not deposited in the bank and later it was detected that the receipts of the deposit slip for the above mentioned dates as submitted by Sukomal Das were all forged on those dates. Practically, said Sukomal Das misappropriated the money instead of depositing the same in the bank. After discovering the facts of the misappropriation, the complainant lodged a complaint case against Sukomal Das which is still pending for disposal before the court of ACJM, Kalyani. On 30.11.03 the complainant intimated the incident to the Branch Manager, New India Assurance Co. Ltd., Kalyani Branch and sought for direction for his next course of actions at which the Branch Manager by a letter dtd. 02.12.03 intimated him that they were not in a position to entertain the claim and so the claim was closed as ‘no claim’. Thereafter, he sent another letter on 08.01.04 to the OP stating the entire incident and claimed the insured money as the loss was covered under the said policy as money lost in transit. But the OP did not make any communication to the complainant on receipt of the said claim. After waiting for sometimes the complainant sent a lawyer’s notice on 17.02.08 to this OP through his ld. advocate claiming the loss caused due to transit. But by a letter dtd. 06.03.08 the OP denied the liability to pay the claim amount and repudiated his claim. So having no other alternative he has filed this case claiming for the reliefs as stated in the petition of complaint.
The OP, New India Assurance Co. Ltd., Kalyani Branch has contested this case by filing a written version, inter alia, stating that the complainant has no cause of action to file this case. He has denied all the material allegations made by the complainant in his petition of complaint. It is his specific contention that as per terms and conditions of the insurance policy the OP Insurance Co. is responsible for loss of transit only and nothing else. As such as per money in transit insurance policy only money whilst it is covered and this Insurance Co. is not on risk after depositing the money with the bank. Besides this, it is clear from the petition of complaint that one Sukomal Das the authorized employee of the complainant collected money on several dates from different parties and places and the said collected money was deposited to the UCO bank, Ranaghat Branch and the deposited slip was handed over to the complainant. Subsequently, he came to learn that the employee misappropriated the said collected money. So it is clear that collected amount on different dates from the parties was not lost in transit. So this OP has no liability to pay the amount as claimed by the complainant, and hence this case is liable to be dismissed against him.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
Both the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint and the written version filed by the OP along with the annexed documents and oral evidence filed by both the parties and also after hearing the argument advanced by the ld. lawyers of both sides it is available on record that the complainant is a wholesale medicine distributor having money policy No. 512402/48/02/01288 covering the period from 21.02.03 to 20.02.04 and the sum insured was Rs. 1,00,00,000/-. It is the specific case of the complainant that one Sukomal Das alias Jewell Das was his authorized employee and was entrusted with the task of depositing the collection money to UCO Bank, Ranaghat Branch. Accordingly he deposited collection money of the complainant of Rs. 56,000/- on 21.07.03, Rs. 50,200/- on 06.09.03, Rs. 47,950/- on 16.09.03, Rs. 1,01,700/- on 29.03.03 and on 17.11.03 of Rs. 41,100/- and submitted the deposit slips of the bank to the complainant also. But from the bank record, it was revealed that actually that Sukomal Das did not deposit the said amount before the bank and the receipts were all forged. After detecting the fact the complainant lodged a complaint case against that Sukomal Das on the ground of misappropriation and that case is pending for disposal before the Court of ACJM, Kalyani. It is his further submission that on 30.11.03 he sought for directions of the OP Insurance Co. narrating the incident at which the OP Insurance Co. intimated him by a letter dtd. 02.12.03 repudiating his claim as ‘no claim’. It was decided by the Hon’ble State Commission that actually on that date the complainant did not lodge any claim report before the OP Insurance Co. So no question of repudiation does arise. From the petition of complaint it is available that on 08.01.04 the complainant intimated the OP Insurance Co. by a letter that the insured money under the insurance coverage was lost in transit and also requested to make payment of the lost amount. But no reply was given to him by the OP. Thereafter he sent a lawyer’s notice on 17.02.08. By a letter dtd. 06.03.08, the OP denied his liability to pay the claim amount considering the claim as repudiated. Now the question is whether the complainant is entitled to get the claim amount on the ground of lost in transit. From the documents filed by the complainant it is available on record that the money was misappropriated by his authorized agent, Sri Sukomal Das at the time of depositing the same to the UCO Bank, Ranaghat Branch. Regarding this misappropriation of money he filed a criminal case which is pending for disposal before the Court of ACJM, Kalyani vide Ranaghat Court case No. 499 dtd. 29.11.03 under section 420/ 467/ 468/ 469/ 470/ 471/ 472/ 120(B)/34 I.P.C. and another case No. 7/04 dtd. 03.01.04, which is revealed from his letter dtd. 08.02.04 addressed and sent to the Branch Manager, New India Assurance Company Ltd., Kalyani Branch. In this letter it is categorically stated by him that under this facts and circumstances stated above it will appear that the money dispatched by the firm on the dates noted above were not actually deposited. It was lost/misappropriated during transit. So the claim under the policy does stands good. From the letter dtd. 08.01.04 it is clear that the money was misappropriated by the authorized employee of the complainant at the time of transit to the OP from his office. It was not at all lost otherwise as it is the specific contention of the complainant that the money was misappropriated by his authorized employee, Sri Sukomal Das against him two criminal cases are still pending for disposal. It is admitted by both the parties that in course of transit if the money is lost it will be compensated by the OP Insurance Co. Ld. lawyer for the complainant has relied upon the policy condition No. Section 1B which speaks “Money (other than described in 1A above) in the personal custody of the insured or the authorized employee/s of the insured whilst in direct transit between the premises and the bank or the post office vise versa.” So we find as per policy condition Section 1B if the money is lost in transit between the premises and the bank the Insurance Co. is to compensate as the money was insured under him. Section 1C of the policy condition speaks that “Money (other than described in 1A and 1B above) collected by and in the personal custody of the insured or the authorized employee/s of the insured whilst in transit to the premises or bank within a period not exceeding 48 hours from the time of collection and vise versa.” On the other hand ld. lawyer for the OP has drawn our attention to the money insurance policy conditions of the OP Insurance Co. Item 3 of the money insurance policy speaks that “Loss of money where the insured or his employee is involved as principal or accessory, except loss due to fraud or dishonesty of the cash carrying employee of the insured, occurring whilst in transit and discover within 48 hours” From this policy condition we find that in the loss of money by an employee the principal i.e., the insurer is not entitled to get the compensation except loss due to fraud or dishonesty of the cash carrying employee of the insured occurring whilst in transit and discover within 48 hours. In this case the money was misappropriated by the employee of the complainant whilst in transit but it was not discovered within 48 hours. Rather it was discovered by the complainant on 30.11.03 for the first time though the misappropriation took place on 21.07.03, 06.09.03, 16.09.03, 29.09.03 and 17.11.03. So considering the dates of misappropriation and the actual date of discovery of this misappropriation we find that there is a long gap beyond 48 hours regarding which there is no whisper on the side of the complainant in his petition of complaint. So considering this money insurance policy rules and the rules on the complainant’s policy taken together we find in this case as available on record that the complainant’s agent / employee one Sukomal Das misappropriated the money on different dates at the time of transit from the office of the complainant to his authorized bank, UCO bank, Ranaghat Branch. At the same time it is also established that as per the rule of money insurance policy this alleged fraud / misappropriation of money was not discovered by the complainant within the period of 48 hours since the dates of misappropriation. We have already discussed that the complainant has not given any satisfactory reply for his detection of the fraud or misappropriation beyond the period of 48 hours.
Money insurance policy rule 9 speaks that “The due observance and fulfillment of the terms, conditions and endorsements of this policy in so far as they relate to anything to be done or complied with by the insured, shall be a condition precedent to any liability of the company to make any payment under this policy.” In the present case we find that the complainant failed to comply with the terms and conditions of the policy specially not discovering the fraud committed by his employee in transit of money from him to the bank within a period of 48 hours since the time of misappropriation of the said money on several dates starting from 21.07.03 to 17.11.03.
Therefore, in view of the above discussions and considering the facts of this case along with the annexed documents and the policy rules we are inclined to hold that the complainant is not entitled to get any benefit as prayed for violation of the policy rules. In result the case fails.
Hence,
Ordered,
That the case, CC/08/38 be and the same is dismissed on contest against the OPs without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
