Maharashtra

StateCommission

A/09/1367

THE NEW INDIA ASSURANCE CO LTD, - Complainant(s)

Versus

M/S ACE TOURS & INFORMATION CENTRE, THROUGH BHARAT J. CHOKSHI, PARTNER, - Opp.Party(s)

Urmila Sanil

28 Jul 2010

ORDER

BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
 
First Appeal No. A/09/1367
(Arisen out of Order Dated 24/07/2009 in Case No. 155/2006 of District DCF, South Mumbai)
 
1. THE NEW INDIA ASSURANCE CO LTD,
M.R.O.1, NEW INDIA BHAVAN, 1ST. FLOOR, FORT,
MUMBAI-20
...........Appellant(s)
Versus
1. M/S ACE TOURS & INFORMATION CENTRE, THROUGH BHARAT J. CHOKSHI, PARTNER,
F-22-23, JOLY ARCADE, GHOD DOD RD.,
SURAT-395007
...........Respondent(s)
 
BEFORE: 
 Hon'ble Mr.Justice S.B.Mhase PRESIDENT
 Hon'ble Mr. S.R. Khanzode Judicial Member
 Hon'ble Mr. Dhanraj Khamatkar Member
 
PRESENT:Urmila Sanil, Advocate for the Appellant 1
 R.K.Dave, Advocate for the Respondent 1
ORDER

Per Mr.Justice S.B.Mhase, Hon’ble President

Heard Mrs.Urmila Sanil-Advocate for the appellant.  Mr.R.K.Dave-Advocate for respondent.

This appeal can be disposed of at the admission stage itself. This appeal takes an exception to an order passed by the South Mumbai District Consumer Forum in consumer complaint no.155/2006 decided on 24/7/2009.  By this order complaint was partly allowed.  Appellants/original opponents were directed to pay an amount of Rs.4,96,000/- in view of the insurance policy. They were directed to pay the said amount within a period of two months, otherwise, to pay interest @ 7% p.a.  Rs.25,000/- were directed to be given for the purpose of mental agony and harassment.  By way of cost Rs.500/- were awarded. Present appeal has been filed by the original opponent.  Respondent is an original complainant.

Admitted facts are as follows:-

The complainant is a tourist company. Complainant has taken insurance policy known as ‘Money Insurance Policy’ and it was valid for a period 25/4/2005 to 24/4/2006. One Mr.Vinit Patel was an employee of the complainant and he was under obligation to inform the daily transaction of the complainant company to one Mr.Hiren Somaiya.  Said Vinit Patel was discharging various functions including deposits to be made in the banks.  On 20/5/2005 one of the passengers was desirous of going to Singapore has booked tour through Mr.Vinit Patel and gave a cheque of Rs.2,13,960/- and also gave cash amount of Rs.1,30,000/-. Said cheque was placed by Vinit Patel in the complainant’s account but the cash even though informed to Mr.Somaiya was not deposited in the bank account. Thereafter, Mr.Hiren Somaiya examined the account and it is/was revealed that Mr.Patel had taken amount of Rs.4,96,000/- from various places and had not deposited the said amount.  Therefore, first information report was lodged on 30/5/2005, as against Mr.Vinit Patel as Vinit Patel had committed a theft and/or breach of trust. The claim in respect of this amount was lodged with the opponent/present appellant. Said claim was rejected by opponent/appellant on a ground that it is a case of breach of trust and not of theft and, therefore, not covered under the insurance policy.  These facts are not in dispute. Only we have to consider whether claim made by the complainant is covered under the policy so as to uphold order of District Consumer Forum.  The original policy is before us.  From the policy, we find the following clauses are important:-

“……Description of Money to be insured : Cash and/or coins kept in locked safe/table drawer/cupboards/locked cash box.  Rs.10 lakhs atPrakash Talkies, Station Road, Surat.  Rs.10 lakhs at F-22/23 Jolly Arcade, Ghodod road, Surat, Rs.1 lakh at 308 Samir complex, Municipal Market, Opp.C G Road, Navrangpura, Ahmedabad. Rs.1 lakh at 213, 1st floor, Ashoka Shopping Centre, G T Hospital complex, L T Road, Fort, Mumbai.

Additional conditions (if any) as below:

Insured’s offices located at Surat Ahmedabad and Mumbai to various banks vice versa and such other places as per insured’s necessity and vice versa.

Cash in safe 51.22 lakhs is at 2 location 1. At Prakash Talkies, Station Road, Surat 2. F,22,23, Jolly complex, Ghoddod Road, Surat.

Terrorist Cover: No        

SRCC Cover :Yes

Rate on Cash in Transit (%0) : 55000

Cash in safe (%) : 000.3

Total sum insured : Rs.1,22,00,000/-

Stamp duty : Rs.1 lakh

Service Tax : Rs.1247/-

Net premium : Rs.12,222/-

PREMISES

            Section 1A : Money for the payment of wages, salaries and other earning 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 delivered at the premises or other place of disbursement and whilst there until paid out provided that out of business hours such cash shall be secured in locked safe or locked strong room on the premises.  Cheques drawn by the insured to provide for such cash are covered in transit from the premises of the Bank.

Section 1B: Money (other than descried 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 post office and vice versa.

Section 1C: 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 vice versa.”

Thus, on going through these terms and conditions of the policy, it is evident that the total sum for the insurance coverage provided is Rs.1,22,00,000/- and from that view the premium has been paid by the complainant. 

The submission on behalf of the appellant is that Mr.Vinit Patel who has collected the amount from the various customers of the complainant even though admittedly has failed to deposit the amounts in the bank account of the complainant, said act of Mr.Vinit Patel cannot be termed as ‘theft’.  It is submitted that Mr.Vinit Patel is an employee and in the capacity of employee he has received this money and, therefore, non deposit of these amounts by Mr.Patel is an act of misappropriation or a criminal breach of trust and not of a theft.  Ld.counsel submitted that this policy is applicable to the thefts and it is not a fidelity policy.  According to him for fidelity of the employees, the separate policy was/is necessary, which was not taken by the complainant and, therefore, order which has been passed by the District Consumer Forum requires to be set aside.

Ld.counsel appearing for the respondent submitted that the policy nowhere uses the word ‘theft’ and, therefore, he invited our attention to the various clauses which we have reproduced above. He submits that if the loss has been caused to the complainant whilst the amounts are in transit, then said loss may be caused due to the act of the employee and/or because of the act of the third party.  What is important to be noted is that that the amounts were in transit as provided in the terms Section 1A, 1B & 1C and if under these circumstances loss has been caused, the Insurance company is liable to pay the amount. It is his submission that reading of the word ‘theft’ in the said policy is something which is being read by the Ld.counsel for the appellant which is not part of the agreement in the policy.  He submitted that we cannot read words and conditions which are not emphatically reflected from the policy. It is submitted that the document has to be interpreted as it is.  In short, he emphasizes that the word ‘theft’ is nowhere used in the said policy and more specifically section 1A to 1C reproduced above.  We have anxiously given consideration to this aspect. We note that nowhere the policy makes a reference to the ‘theft’ and/or to a wording of criminal breach of trust. The policy simplicitor makes the conditions.  In clause 1A, it is stated that the money for the payment of wages, salaries and other earning or for petty cash in direct transit from the bank to the Insured’s premises received from time to time either by the insured or the authorized employee/s of the insured, therefore, amounts which are stated above whilst in transit may be with the insured and/or may be with the authorized representative.  Same is the case in respect of clauses 1B & 1C. Only difference is that in clause 1B monies which have been covered are other than described in clause 1A and 1C, and in clause 1C, monies which have been covered are other than described in clause nos.1A & 1B.  What is important is that that in clause 1B the money 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 post office and vice versa is covered, while in clause 1C 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 vice versa are covered. 

Therefore, if we read these three clauses together, we find that these clauses deal with monies in transit when the money comes to the insured and/or authorized representative of the insured.  So far as Vinit Patel is concerned, there is no dispute over the fact that he was an authorized employee of the complainant.  He has received the amount is also not disputed and that he failed to deposit the said amount is also not disputed.  Whether the said failure to deposit the amount is covered under the insurance policy is not the question which arises in the facts of case since we have noticed that three clauses nowhere uses the word ‘theft’ or criminal breach of trust.  Whatever may be the reason if the money whilst in transit is not deposited either with the insured and/or with the bank, the liability arises is the simplicitor and literal meaning of these three clauses and, therefore, we find that the submission of the Ld.counsel that only in case of ‘theft’ insurance policy can be invoked is without any merits.  We reject the said contention.  We simplicitor find that this consumer complaint is covered by the Insurance company and District Consumer Forum has rightly directed to make payment.  Order passed by the District Consumer Forum requires no interference at the hands of State Commission and, therefore, appeal stands rejected.  Copies of the order be furnished to the parties.

 

 
 
[Hon'ble Mr.Justice S.B.Mhase]
PRESIDENT
 
[Hon'ble Mr. S.R. Khanzode]
Judicial Member
 
[Hon'ble Mr. Dhanraj Khamatkar]
Member

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