SRI SAILARANJAN DAS, PRESIDING MEMBER
The brief fact of the case is that complainant is a stockist / distributor of ITC Limited. In its ordinary course of business the complainant maintained substantial stock of ITC manufactured cigarettes. The complainant purchased one fidelity guarantee insurance policy from the opposite party being Policy No.100400591710000276 by paying a total consideration amount of Rs.3,57,190/- (Rupees three lakh fifty seven thousand one hundred and ninety) only.
The complainant appointed one Sri Amit Sur as cigarette godown keeper and Mr. Uttam Singh as Driver-cum-Delivery Coordinator. Sri Amit Sur was appointed on 22/04/2009 as trainee godown keeper and was subsequently made permanent on 01/04/2014 as cigarette godown keeper. Uttam Singh was appointed by the complainant as driver on 01/01/2009 and was subsequently made permanent on 01/04/2014. Both the persons were duty bound to discharge duties diligently, honestly and faithfully. Any prejudicial illegal act causing loss and damage to the complainant were squarely covered under the fidelity guarantee insurance policy. Amit Sur was entrusted with store material / cigarette both incoming and outgoing maintenance of stock.
During physical verification of stock held on 10/01/2018 it was detected that Amit Sur had delivered huge excess materials / cigarettes without approval of the employer and without bills and challan.
Amit Sur thus has been alleged to have betrayed the trust of the employer in connivance and conspiracy with another employee Uttam Singh the driver. The total misappropriated amount was estimated to be Rs.41,69,000/- (Rupees forty one lakh sixty nine thousand) only.
On discovery of discrepancy of stock on 10/01/2018 the complainant immediately informed local Dum Dum Police Station by a written complaint on 11/01/2018.
Amit Sur admitted / confessed his misdeed by a written declaration dated 10/01/2018.
Under the circumstances the complainant submitted an insurance claim in the prescribed claim form under the fidelity guarantee policy in reference, raising the claim of Rs.41,59,768/- (Rupees forty one lakh fifty nine thousand seven hundred and sixty eight) only on 28/03/2018.
Subsequent to the submission of the claim one Mr. Dilip Kumar Saha was appointed as the Surveyor by the opposite party who visited the insurer’s office and made various correspondences. The complainant is stated to have cooperated with the surveyor all through and submitted all relevant documents. However, the complainant was never supplied with the surveyor report, preliminarily or final till date.
The service of Amit Sur was terminated on 31/01/2018. The service of Uttam Singh was also terminated on 22/02/2018.
FIR in the matter was lodged on 11/01/2018 bearing no. 14821 with the concerned police station. The police authority filed charge sheet before the Ld. ACJM, Barrackpore on / or about 27/11/2019 against Amit Sur, Uttam Singh and others. The opposite party repudiated the claim of the complainant. Thereafter the complainant pursued the opposite party to furnish a copy of the survey report and addendum, if any to the same invoking provisions of RTI, 2005. After such persuasion the insurance company forwarded survey report without any annexure on 27/07/2020. It transpires from the report that “…. It has caused financial loss to the insured as well as beyond any doubt. Accordingly, we have assessed the loss for Rs.33,99,743/- (Rupees thirty three lakh ninety nine thousand seven hundred forty three) only as assessed (net) hereinbefore. THUS THERE REMAINS A CLEAR LIABILITY ON THE PART OF THE INSURANCE COMPANY TO INDEMNIFY THE INSURED ABOVE LOSS ASSESSED ……..”
Thus there remains a proper liability on the part of the insurance company to indemnity the insurance above loss assessed.
The opposite party repudiated the claim of the complainant vide their letter dated 23/06/2020.
Being aggrieved by the repudiation by the opposite party, instant complaint case have been filed.
The opposite parties have resisted the claim of the complainant by way of filing written version. The opposite parties have stated that the complainant did not submit any registration/partnership/resolution that they were stockist of ITC brand cigarette. They further stated that in the appointment letters dated 01/04/2014 issued to both the named employees the duty and responsibility by an employee was not observed. Even though the appointment letters mentioned about Standard Organization Policy the same was not attached with the same.
The complainant did not keep any security deposit prior to giving appointment in such a sensitive post. Therefore, the insured company gave employment without maintaining proper guidelines to safe-guard the company against defalcation of such a huge magnitude done over a period of 15 to 20 days.
In the appointment letters dated 01/04/2014 nothing about detail job specification and responsibility with the recovery terms in case of defalcation was mentioned.
On discovery of the irregularity FIR was lodged in Dum Dum Police Station on 11/01/2018 though there was no mention of the name of Uttam Singh. Also the insured did not lodge any further FIR for the other employee and outsiders for recovery of defalcated amount even after knowledge of involvement of other employees and outsiders as per charge sheet or Court proceedings.
A copy of Court Challan / Court’s admission on charge sheeted persons including not employee were not provided including Court’s apportionment about degree of involvement by each person. The statement made in paragraph no.12 of the consumer complaint is further admission of the complainant that only Amit Sur was involved in the total defalcation.
Although the name of Uttam Singh surfaced during police investigation along with two other persons who happen to be whole seller in the books of complainant, addition in FIR and/or acceptance/deletion by Court was not provided to the opposite parties in spite of repeated reminders.
It has further been contended that the date of knowledge of loss was 10/01/2018 but the date of intimation was 28/03/2018 with a delay of 77 days which itself is a huge delay in intimating the loss and tantamount to dismiss the case ab initio.
According to the opposite parties such action by the complainant prevented the opposite parties to appoint independent investigator forthwith to collect information about sundry debtors and /or sundry creditors immediately to minimize the loss, if any with recovery aspect. The opposite parties have stated that surveyor and investigator were different and have their specific jobs under terms of reference here. Opposite parties being deprived of appointing investigator at the first place had to appoint surveyor as per rules of IRDA.
The complainant is alleged to have not shared the various correspondences exchanged with the surveyor for reasons best known to them but the same is bad at law. The complainant is alleged to have played a clever trick by not showing the correspondence made by the opposite parties subsequently calling various documents/information/clarification by their following mails which were either not replied or given an evasive reply not to the specific points raised by the opposite party for admission of liability under the policy.
The opposite party called for the following documents on 11.06.2019 from the surveyor who forwarded the same to the complainant which are as under :-
- Certified copy of statement under 161 & 164 for 2nd accused person i.e. Uttam Singh.
- Whether charge sheet is given by court of law or not. If yes, certified copy of charge sheet should be submitted.
Since no reply was received, the surveyor sent a reminder mail on 07.11.2019.
Meanwhile the opposite party raised 9 (nine) queries with the surveyor including the documents called for vide mail dated 11.06.2019. Complainant gave evasive and incomplete reply on 20.11.2019.
Since the mail dated 20.11.2019 of the complainant was not conclusive the complainant was reminded that the report of the surveyor would be considered after submission of required information/documents as mentioned in the mail dated 19.05.2019.
Surveyor issued the addendum report dated 13.02.2020 in which liability was reduced to 22,80,000/- (Rupees twenty two lakhs eighty thousand) only.
However the complainant failed to submit all the documents/information save and except the charge sheet which did not specify the degree of involvement by all accused persons.
Opposite party sent two reminders dated 21.08.2019 and 23.09.2019.
The opposite party waited for nine months and repudiated the claim on 23.06.2020.
It is stated by the opposite party in the written version that the claim was repudiated due to non-submission of documents. It has further been stated that the claim was not repudiated on any merit ground which could have been considered on submission of all the documents as called for vide mail dated 19.05.2019.
We have heard the submissions of both the sides and perused all the relevant records.
Complainant and the opposite party have submitted affidavit in chief and written cross-examination of each other.
On perusal of all the records and exhibits of both the sides it is observed that various points have been raised in favour and also against entertaining the claim submitted by the complainant.
However in our view the whole point at issue has been ingrained in the repudiation letter dated 23.06.2020 of the opposite party. We quote the same which reads as follows :
“Despite our various reminders to submit the vital documents to consider the above claim, we have not received the same from your end.
Kindly note that the said documents/information are essential since it is a criminal case, establishment of which has a bearing on the admission of own liability.
In view of the above we are repudiating the above claim which is lying in our books as very old claim due to non-submission of documents.”
A plain reading of the above quoted repudiation letter clearly and unambiguously bears out the fact that the opposite parties had repudiated the claim of the complainants on the grounds of non-submission of vital and pertinent documents.
This point has been stressed upon in para 26(c) and (d) of the written version which clearly states that the claim was repudiated due to non-submission of document and was not repudiated on any merit ground.
The opposite parties have stressed upon the same point in para 7(c) of their affidavit in reply.
From the above factual matrix the points to be decided become limited to the question as to whether the complainant had complied with the request of the opposite parties by way of furnishing all the relevant information.
It is observed that the opposite party had sent a mail on 19.05.2020 to the complainant. In that mail it is mentioned that they had raised six points seeking clarification from the complainant. The points were raised through the surveyor. As per the mail the complainant submitted response to point no.1 and 2 only whereas they did not reply to other points raised by opposite party.
In a mail dated 20.11.2019 to the surveyor it is observed that the complainant had exhaustively replied to all the queries raised by the opposite parties serially.
Further in a mail dated 09.12.2019 a mail was sent to the surveyor Shri Dilip Kumar Saha with the specific mention that the complainants have addressed all the queries raised by the opposite parties. In this particular mail they had attached certified copy of the charge sheet.
It is pertinent to mention here that the opposite parties have never made an issue that the replies of the complainant were not satisfactory or evasive in nature. The letter in which the complainant was intimated about the repudiation of claim; only stated that the complainant did not furnish the documents/information as asked for by the opposite parties.
But as discussed and pointed out in the previous paragraphs, the complainant had submitted reply to all the queries elaborately to the surveyor.
Therefore the points taken by the opposite party has no legs to stand upon. It is a clear case of high handedness on the part of the opposite parties which is a clear case of deficiency in service and unfair trade practice.
It is pertinent to mention here that the surveyor had submitted its report dated 26.12.20218 before the opposite party wherein the total amount of loss was assessed as Rs.33,99,743/- (Rupees thirty three lakhs ninety nine thousand seven hundred and forty three) only. But in the addendum dated 13.02.2020 to the initial survey report the liability of the insurer i.e. the opposite party; was reduced Rs.22,80,000/- (Rupees twenty two lakhs eighty thousand) only.
It was stated that Amit Sur had initially committed the infidelity and as such they have revised their assessment confining the loss to one person only.
The logic put forward by the surveyor in restricting the liability to a single person does not stand the scrutiny in the eye of law. It is the settled principle of law that all the accomplices in a criminal act are equally liable for punishment and the same cannot be segregated depending on the roles and times of involvement of different accomplices.
Hence, it is
O R D E R E D
that the complaint case be and the same is allowed on contest with cost.
- The opposite party is directed to pay a sum of Rs.33,99,743/- (Rupees thirty three lakhs ninety nine thousand seven hundred forty three) only along with simple interest @7% to the complainant within two months from the date of repudiation. In default, the opposite party will pay simple interest @ 9% per annum from the date of repudiation till payment.
- The opposite parties are directed to pay a sum of Rs.1,00,000/- (Rupees one lakh) only as compensation to the complainant within two months from the date hereof, in default to pay simple interest @ 9% p.a. till payment.
- The opposite parties shall pay a sum of Rs.50,000/- (Rupees fifty thousand) only as litigation cost to the complainant within two months from the date hereof.
Dictated and corrected by me
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Presiding Member
