PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service on the part of Opposite Party as it did not settle the legitimate insurance claim of the Complainant.
The facts of this complaint as stated by the Complainant are that the Complainant is a Company carrying on business of transport. It obtained an Insurance Policy NO.260600/48/05/7600000706. The sum insured was 5 Lacs. It covered cash handling. The said policy was renewed from time to time and is continued till today.
2) The Complainant has further stated that its employee one Mr. Vinayak Purohit was instructed to withdraw an amount of Rs.3 Lacs on 12/09/06 from Union Bank of India, Boradu Street, Mumbai– 09 and forward the amount through Angudia at Complainant’s branch office at Vapi and Anleshwar through Prafulbhai Patel having office at Kalbadevi Road, Mumbai. Accordingly, Mr. Vinayak Purohit withdrew the said amount while he was proceeding from the bank towards Kalbadevi Road, on 12/09/06 at 4.00 p.m. at Mohamad Ali Road, two unknown person snatched away the bag containing 3 Lacs cash & went away. Police complaint was lodged at Paydhuni Police Station vide FIR No.198/06. Claim was submitted to Opposite Party vide letter dtd.13/09/06. The Opposite Party appointed a surveyor. The Complainant cooperated with the surveyor in his assessment of loss. Thereafter, the Complainant time and again approached the Opposite Party but nothing was heard from the Opposite Party. So finally the Complainant sent a legal notice dtd.17/10/08 to the Opposite Party. In response to this notice Opposite Party wrote two letters dtd.06/11/08 and 24/11/08 and thereby asked to settle the claim for Rs.91,261/- only. Therefore, the Opposite Party has not settled the legitimate claim of Rs.3 Lacs of the Complainant. The Complainant has prayed for the sum of Rs.4,80,616/- with interest @ 25%.
3) The Complainant has attached the xerox copies of the following documents in support of his complaint –
a) Insurance Policy document.
b) FIR No.198/06.
c) Letter dtd.13/09/06.
d) Letter of Surveyor dtd.15/09/06.
e) Letter dtd.19/10/07.
f) Letter dtd.27/06/07.
g) Letter dtd.17/04/07.
h) Letter dtd.29/03/07.
i) Letter dtd.18/01/07.
j) Letter dtd.31/01/07.
k) Letter dtd.11/12/06.
l) Letter dtd.25/07/08 of Surveyor.
m) Letter dtd.06/11/08.
n) Letter dtd.24/11/08.
o) Notice dtd.17/10/08.
p) Notice dtd.01/12/08.
4) The complaint was admitted and notice was served on the Opposite Party. Opposite Party filed its written statement wherein it denied the allegations of the Complainant and specifically submitted that, the Complainant has not made any allegations of deficiency of service against the Opposite Party which entitles them to get the protection under Consumer Protection Act, the Opposite Party cannot be held guilty of deficiency of service. Therefore, the complaint does not come under the purview of the Consumer Protection Act, 1986 and therefore, deserves to be dismissed.
5) It is further stated by the Opposite Party that the Complainant had already exhausted his insurance cover of the policy.
6) The Opposite Party has further submitted that the policy period was from 25/11/05 to 24/11/06 for cash carried, stating estimated amount of likely cash carried during policy period for Rs.4,75,000/-. During the above said policy the Complainant reported loss of Rs.3 Lacs. The Surveyor was appointed by the Opposite Party. The Surveyor submitted his report on 11/04/07. He recommended Net loss assessed/recommended 3 Lacs. However, the Opposite Party did not find merit in the report of the Surveyor. Therefore, the Opposite Party called for the further information from the Surveyor regarding the total withdrawal of the amounts by the Complainant from the Bank during the period 25/11/06 to 12/09/06. This amount was Rs.8,40,75,000/- as per letter of surveyor dtd.09/09/08. This amount exceeded the amount of Rs.4,75,00,000/-. This was not informed by the Complainant. The Opposite Party submitted that this is breach of policy condition. The total cash withdrawal was Rs.11,72,75,000/- during the policy period.
7) The Opposite Party has further submitted that it sent a letter dtd.30/04/07 to the Complainant stating that the cash carried exceeded during the relevant period against the sum insured Rs.4,75,00,000/-. According to the Opposite Party, the Complainant is having insurance policy since 2003. According to the Opposite Party, the Complainant made a wrong statement in letter dtd.19/10/07, that the actual cash carried during the relevant period was Rs.4.50 to 5 Crores.
8) The Opposite Party further submitted that it sent a letter dtd.02/11/07, and 29/12/07 to the Complainant to provide details of cash carried during the policy period 23/06/03 to 22/06/03. The Complainant was unable to provide the required information.
9) The Surveyor has stated in his letter dtd.09/09/08 that the cash withdrawal was of Rs.11,72,75,000/-. Opposite Party may consider the withdrawn amount as insured amount and accordingly premium be regulated during the subject policy period.
10) The Opposite Party has further stated that vide letter dtd.06/11/08 and 24/11/08, it offered to settle the claim for Rs.91,261/-. This amount was arrived at taking into consideration the fact that the insured had taken Money Transit Policy for an amount of Rs.4,75,00,000/- as against Rs.11,72,75,000/-. Loss amount was 3 Lacs. It was therefore, proportionately reduced by applying a formula sum insured/actual amount carried (here the equation give by the Opposite Party is not correct).
11) Finally the Opposite Party stated that the Complainant has failed to prove any deficiency in service on its part and hence, the complaint be dismissed with cost.
12) The Opposite Party has attached the xerox copies of the survey report dtd.11/04/07, and other correspondence between the Opposite Party and the Surveyor, correspondence between the Opposite Party and the Complainant.
13) Thereafter, the Complainant has filed its affidavit of evidence and written argument wherein the Complainant reiterated the facts mentioned in its complaint. The Opposite Party filed the affidavit and written arguments wherein it reiterated the facts and points mentioned in its written statement.
14) We heard the Ld.Advocates of both the parties and perused the papers submitted by them. It is the fact that the Complainant has obtained a Money Insurance Policy bearing No.260600/48/760000706 valid from 25/11/05 to 24/11/06. During the validity of this policy there was a theft of Rs.3,00,000/- cash from the person of an employee of the Complainant. The theft of the cash from bank to the office of the Complainant is covered by the insurance policy. Hence, the claim of Rs.3 Lacs was submitted to the Opposite Party for indemnifying the loss sustained by the Complainant during the transit as stated above. The Opposite Party appointed the surveyor. The surveyor after investigation, submitted his report and after scrutinizing the survey report, the Opposite Party has communicated to the Complainant vide its letter dtd.06/11/08 that –
“1) The estimate of annual carrying as declared by you at inception of policy was not at all a fair estimate.”
“2) The total cash carried from the date of policy inception till the date of incident had well exceeded the estimate provided,
yet you did not deem it necessary to inform the underwriting office of the same.”
“3) Vide letter dtd.19/10/07 your have provided information as to the actual amount of cash carried during the period in question.”
“Under theses circumstances we offer to settle the claim as per the following formula for Rs.91,261/- being full and final settlement of this claim, provided the claim is otherwise admitted.”
“Formula = Assessed amount of loss x Sum insured”
Actual amount of cash
This is not a correct formula in any way.
15) The above letter is certainly a vague letter. The Opposite Party has issued this letter after 2 years and two months of the submissions of the claim by the Complainant. The Complainant has submitted his claim on 13/09/096. The Surveyor was appointed and he also submitted his claim on 11/04/07. The Opposite Party was expected to take an appropriate decision on the claim of the Complainant within 3 months of the incident but the Surveyor appointed by the Opposite Party took 7 months to submit his report and thereafter the Opposite Party took about more than one and half year to send his letter to partially approve the claim and only after the receipt of the legal notice of the Complainant through his advocate. This is certainly a deficiency on the part of Opposite Party as not taking decision on the claim of the Complainant. Even in this letter also the Opposite Party has not clearly sanctioned the amount of Rs.91,261/- but subject to provision that “offer of Rs.91,261/- provided claim is otherwise admitted. This clearly shows the callous attitude of the Opposite Party i.e. noking ay unambiguous decision on the claim of the Complainant.
16) Though the Opposite Party has written very ambiguous letter to the Complainant, it has clarified in its written statement (when the Complainant filed a consumer complaint and a notice was issued to the Opposite Party) that Complainant had availed the insurance policy from 25/11/05 to 24/11/06 for cash carried as stated in the policy stating estimated amount of likely cash be carried during the policy period. The Opposite Party required to know Bank accounts statements to see how much withdrawal was made by the Complainant from his concerned bank during the relevant period i.e. from 25/11/05 to 12/09/06 to ascertain the actual cash carried between the premises. Accordingly the Opposite Party asked its Surveyor to provide cash withdrawal by the Complainant from the bank. The Surveyor vide his letter dtd.18/04/07, submitted the details that the amount is 8,40,75,000/-. This amount exceeds the amount of Rs.4,75,00,000/- the estimated insured amount. Thus, the Complainant violated the condition of insurance policy. This does not entitle the Complainant for insurance claim in view of exhaustion of insurance coverage. The Opposite Party has further stated in the written statement that it has sent a letter dtd.30/04/07 to the Complainant clearly stating that the cash carried exceeded during the period against the insured amount of Rs.4,75,00,000/-.
17) The Opposite Party has further explained as to how the amount of Rs.91,261/- was arrived at. The formula it adopted was as below –
Sum insured
Actual amount carried x Rs.3,00,000/-.
i.e. 4,75,00,000/- x 3,00,000/- = 1,21,509/-.
11,72,75,000/-
The Opposite Party has erred in calculating this amount also. This also indicates a very very apathetic nature and callous attitude of the Opposite Party which also reveals the nature that does not allow the Opposite Party to indemnify the Complainant.
18) In this respect we have also perused the letter of the Surveyor dtd.09/09/08 in which it ha been clarified by the Surveyor to the Opposite Party that the total amount of withdrawal during the policy period (25/11/05 to 24/11/06) is Rs.11,72,75,000/-.
It is further stated by the Surveyor that the insured has taken Money Transit Policy for sum insured of Rs.4,75,00,000/-. Therefore, it is clear from the Surveyor’s letter that the insured has taken the “money transit” policy for Rs.4,75,00,000/- but the actual cash transaction was Rs.11,72,75,000/-. The premium is calculated for the sum of Rs.4,75,00,000/- and actual transaction is of Rs.11,72,75,000/-. Thus, the amount exceed by Rs.6,97,75,000/-. Therefore, the amount payable will be
4,75,00,000/- x 3,00,000/- = 1,21,509/-. But the Opposite Party has calculated
11,72,75,000/-
the sum payable as Rs.91,261/-. The Opposite Party has wrongly calculated this amount and therefore, they are certainly deficient in their services as elaborately discussed above. The Complainant has prayed for the amount of Rs.4,80,616/- to be paid by the Opposite Party. but as per the above discussed points, the Complainant is not entitled to the amount of Rs.3 Lacs which were robbed from its employee as the total cash transactions exceeded by Rs.6,97,75,000/-. The Complainant is also not entitled for the interest @ 25% on this amount of Rs.3 Lacs but only 9% from the date on which the Opposite Party must have settled Complainant’s claim 13/12/06 i.e. within 3 months from the receipt of the claim. Therefore, in our candid view, taking into consideration the points discussed above we pass the order as follows -
O R D E R
1. Complaint No.60/2009 is partly allowed.
2. The Opposite Party is directed to pay to the Complainant an amount of Rs.1,21,509/- (Rs. One Lac Twenty One Thousand Five Hundred Nine Only) alongwith interest @ 9% p.a. from 13/12/2006 till its payment.
3. The Opposite Party is also directed to pay to the Complainant an amount of Rs.5,000/- (Rs. Five Thousand Only) towards the cost of this complaint.
4. Opposite Party is directed to comply with the above said order within 30 days of the receipt of this order.
5. Certified copies of this order be furnished to the parties.
