Tamil Nadu

South Chennai

293/2006

Vean Management Consultant (P) Ltd - Complainant(s)

Versus

National Insurance Co.Ltd - Opp.Party(s)

S.Raghavan

19 Aug 2015

ORDER

                      Date of complaint   : 12.05.2006

                      Date of Order          : 19.08.2015

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

      PRESENT:   THIRU.B. RAMALINGAM, M.A.M.L.,                   : PRESIDENT

                TMT. K.AMALA, M.A.L.L.B.,                                : MEMBER I 

                TR. T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II

                        

C.C.NO. 293/ 2006

WEDNESDAY THIS  19^TH  DAY OF AUGUST  2015

Vean Management Consultants (P) Ltd.,

Rep. by its Director,

Having  its office at

2A Prakasam Road,

T.Nagar,

Chennai – 17.                                               ..Complainant

                                                      .. Vs ..

 

National Insurance Company Limited,

Rep. by its Divisional Manager,

Divisional Office III,

751, Anna Salai,

Chennai 600 002.                                             .. Opposite party.

 

For the complainant                     :   M/s. S.Raghavan & another

  

For Opposite party                        :  M/s. Nageswaran & Narichania

 

 

        This complaint is being filed by the complainant u/s 12 of the C.P. Act 1986 for a direction to the opposite party to pay a sum of Rs.2,75,661/- to the complainant with interest and also to cost of the complaint to the complainant.     

ORDER

 

THIRU. B. RAMALINGAM PRESIDENT        

 

         

1.The case of the complainant is briefly as follows:-

        The complainant’s  company is one of the group of companies of  Shriram General Finance Private Limited and had taken Fidelity Guarantee Policy with the opposite party since 1991 and as such policy had been renewed every year.    The complainant company is one such company covered by the said Fidelity Guarantee Policy.    Under the terms  of the said policy, the opposite party has agreed to indemnify the complainant against any direct pecuniary loss sustained by reason of any act of fraud / dishonesty committed by its employees during their uninterrupted service.  As per the terms of the policy, the fraud / dishonesty should be discovered during the continuance of the policy or within 12 months  from the date of expiration of the policy.    

2.     In the instant case one Sanjay Kumar Khana was appointed as Accounts Officer at Delhi the said appointment was made by letter of appointment dated 21.6.1996.  The said employee was handling cash and was maintaining accounts.    During the course of auditing by the Accounts Department   it was found out that the said Sanjay Kumar Khana had misappropriated from the complainant company a total sum of Rs.2,75,661/. Immediately the complainant lodged a police complaint at Delhi.  The opposite party was notified of the claim by letter 19.9.1997.  Thereafter the formal preliminary claim was lodged with the opposite party by the complainant company.     

3.     The opposite party appointed V.K.Kharbanda and Associates to be surveyor to investigate the claim lodged by the complainant.     By letter dated 20.8.1999 the necessary information sought by the surveyor were furnished to the opposite party.  Again  by letter dated 29.9.1999 the surveyor was duly furnished with the information required by the surveyor.  The surveyors replied by letter dated 21.11.1999 that the matter should be pursued with the opposite party, without complying with request made to them by letter dated 15.11.1999. 

4.     The complainant has stated that despite of their claim made by them and surveyor was appointed the opposite party has not come forward to settle the claim to the complainant and legal notice was also sent by the complainant  on 17.4.2001 even then the complainant has not come forward to settle the claim.     As such the act of the opposite part amounts to deficiency of service and which caused mental agony and hardship to the complainant.  Hence the complaint.      

Written version of  opposite parties  is  as follows:-

5.      It denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.  It is true that the complainant obtained fidelity guarantee insurance policy from the opposite party.   The period of the policy is from 1.4.1997 to 31.3.1998.  The said policy was issued subject to the terms and conditions.  The complainant has not cause of action as against the opposite party and hence the complaint is liable to be dismissed.  The complaint filed by the complainant is beyond the period of limitation prescribed under section 24A of the Consumer Protection Act of 1986.   The complainant has violated the terms and conditions by not furnishing the particulars of documents in respect of the claim called for by the surveyor by the letter filed by the opposite party.   As such there is no deficiency of service on the part of the opposite party.  The complainant is not entitled for the relief prayed for and prays to dismiss the complaint.  

6.     Complainant has filed his Proof affidavit and  Ex.A1 to Ex.A27 were marked on the side of the complainant.    Opposite party have filed their proof affidavit and Ex.B1 to Ex.B3  were marked on the side of the opposite party.  

 

7.         The points that arise for consideration are as follows:-

1. Whether the complainant has failed to furnish proof  information and other      evidence in respect of the claim to the insurer as per the Caluse.1 of the terms and conditions of the policy?.

 

2. Whether the complaint filed by the complainant is barred by limitation ?.
3.  Whether the deficiency of service alleged against the opposite party by the complainant is proved?.
4. Whether the complainant is entitled for the claim sought for in the complaint against the opposite party and what relief ?

 

8.       POINT No.1

       Perused the complaint filed by the complainant, written version filed by the opposite party  proof affidavit of both parties  and documents Ex.A1 to Ex.A27  filed on the side of the complainant and the documents Ex.B1 to Ex.B3  filed on the side of the opposite party  and considered the both side arguments.     There is no dispute between the parties that the complainant’s  company is one of the group of companies of  Shriram General Finance Private Limited and had taken Fidelity Guarantee Policy with the opposite party since 1991  and such policy has been renewal every year was in force for the period  from 1.4.1998 to 31.3.1999 during which the complainant’s company’s employee namely Sanjey Kumar Khana who was working as Accounts Officer at Delhi branch had committed misappropriation of the company’s amount of Rs.2,75,661/-.    The said misappropriation was discovered in course of auditing by the Accounts Department from  17.7.1997 onwards and the same was informed to the opposite party by letter dated 19.9.1997 and the police complaint against the said delinquent was made by the complainant on 23.7.1997 and necessary FIR also registered against the delinquent. 

9.     The opposite party has also appointed as a surveyor V.K. Kharbanda & Associates for the purpose of investigation of the said claim and the said investigation by the surveyor was pending due to non compliance of requirement i.e. furnishing necessary document called for by the surveyor from the complainant.  The letter communications Ex.A5 to Ex.A16 between the complainant and the surveyor and the opposite party filed on  the side of complainant proves the same. 

10.    The complainant has stated that despite of their claim made by them and surveyor was appointed the opposite party has not come forward to settle the claim to the complainant and legal notice was also sent by the complainant  on 17.4.2001 even then the complainant has not come forward to settle the claim as such the complainant has filed this complaint against the opposite party before this forum on 12.5.2006. 

11.    Where as the opposite party has resisted the said complaint stating that the said claim of the complainant has not been settled due to non compliance of the requirement made by the opposite party / insurer and  as per Clause-1 of the terms and conditions of the policy.  As such the complainant has violated the terms and conditions and by not furnishing the particulars of documents in respect of the claim called for by the surveyor by the letter filed by the opposite party.   As such there is no deficiency of service on the part of the opposite party.   Whereas the complainant itself is irresponsible and not perform their part of terms and conditions, as such the complaint is to be dismissed.

12.    On going through Clause -1 (c ) of the terms and conditions is read as follows: -

       “ Supply at the request of and free of expense to the company all such proof, information and other evidence (verified by statutory declaration if so required) relating to the claim as the company may require. “

As per the surveyor letter during the investigation issued to the complainant and the reply sent by the opposite party filed herewith proves that during the investigation of surveyor called for several particulars of documents to be furnished by the complainant among them though some of the documents were furnished by the complainant to the surveyor and till this date some of the documents  particulars in respect of the particulars of amount of salary and provident fund to the credit of Ex-employee Mr. Sanjey Kumar Khana was not furnished by the complainant to the surveyor as per exchange of letters Ex.A15 and Ex.A16 which were dated 22.2.2001 and 20.3.2001.  Though the complainant as mentioned in letter Ex.A16 that those documents well be traced out and will be produced at the time of settlement of claim the complainant neither produce the said document to the surveyor before filing of this complaint nor even filed the said documents as exhibit.   Therefore in order to  complete the surveyor investigation and to arrive amount of settlement in his report the document required by the surveyor in letter Ex.A15 is of necessary in nature but the complainant has remained not producing the said documents.  As such will be amount to breach of clause-1 (c ) of the terms and conditions of the policy on the part of the complainant is acceptable as contented by the opposite party.  Therefore we are of the considered view that the complainant having without producing necessary particulars or documents to the opposite party or to the surveyor appointed for the investigation of the claim  despite of their demand as agreed in the Clause-1 (c ) of the terms and conditions  on the part  of the complainant due to the same the claim of the complainant was allowed but not settled by the opposite party on the act of the complainant.  Accordingly the point-1 is decided in favour of the opposite party as against the complainant.

13.    POINT No.2.

        The opposite party has resisted the complaint filed by the complainant on the ground that the complaint filed by the complainant is not in time but barred by limitation as per Sec. 24 (A) of the Consumer Protection Act.  The learned counsel appearing for the opposite party has argued that the misappropriation of the delinquent mentioned in the complaint was taken place during the year 1997 and the same was discovered by the complainant during the General Auditing on 17.7.1997 and was notified through letter by the complainant on 19.9.1997.  The surveyor appointed for investigation and the surveyor was not able to complete the investigation and to furnish report due to non compliance of particulars called for by the surveyor from the complainant.   Further legal notice Ex.A17 is dated 17.4.2001.   After lapse of five years this complaint has been filed by the complainant before this forum on 12.5.2006.   As such the complaint is not filed in time  as per Sec.24 (A) of the Consumer Protection Act which require the complaint is to be filed within two years from the date of cause of action.   As such the complaint is to be dismissed. 

14.    Whereas the counsel appearing for the complainant has argued that though the complainant has made claim before the opposite party as per the policy the claim was not settled nor repudiated by the opposite party till this date.  As such the complaint filed by the complainant is in time not barred by limitation.

         

15.    However considering the facts and circumstances of the case as contended by the opposite party the cause of action for the complaint mentioned claim is of the year 1997 when the misappropriation of the complaint mentioned employee of the complainant was taken place.  Further though the complainant has made a claim by sending letter to the opposite party on 19.9.1997, having remained not complying or furnished documents called for by the surveyor till today and legal notice sent by the complainant dated 17.4.2001, this complaint filed by the complainant after lapse of five years of the said legal notice are proves very clearly that the claim made by the complainant is of barred by limitation as per Sec.24 (A) of the Consumer Protection Act.  

16.    The said contention of the opposite party is sustainable and relying upon the decision the Hon’ble National Commission rendered in the case 

Ganpat Rama Madhavi

Versus

New India Assurance Company Ltd.,

 

Published in IV (2011) CPJ 210 (NC)  and the decision rendered by Hon’ble Supreme Court in the case

Kandimalla Raghavaiah & Co.,

Versus

National Insurance Company Ltd.,

 

Published in III ( 2009) CPJ 75 (SC)

Further the decision rendered by the Hon’ble The Tamil Nadu State Consumer Disputes Redressal Commission, Chennai in CC.No.55 / 2005 dated 8.3.2012 which is relied upon by the learned counsel appearing for the opposite party in support of their contention is also squarely applicable for the present case.

 

17.    Therefore we are of the considered view that this complaint filed by the complainant is barred by limitation as per Sec.24 (A) of the Consumer Protection Act and as  such the point-2 is answered accordingly.

 

 

18.    POINTS 3 & 4 :

        As per the above points 1 & 2 were discussed and decided as against the complainant the deficiency of service alleged by the complainant against the opposite party in the complaint is not proved and as such the complainant is not entitled for any relief sought for in the complaint  against opposite party and the complaint is liable to be dismissed.  Considering the facts and circumstances parties have to bear their own cost of litigation and as such the points 3 & 4 are also decided accordingly.

        In the result this complaint is dismissed. No costs.  

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this  19^h   day of August  2015.

 

MEMBER-I                                   MEMBER-II                                                    PRESIDENT.

Complainant’s Side documents :

Ex.A1- 23.7.1997 -  Copy of the police complaint.

Ex.A2- 19.9.1997 -  Copy of letter to the Insurance Company.

Ex.A3- 28.1.1998 -  Copy of claim form.

Ex.A4- 20.8.1998 -  Copy of letter to the Insurance Company.

Ex.A5- 29.10.1999- Copy of letter to the Surveyor.

Ex.A6- 8.11.1999   - Copy of letter from the Surveyor.

Ex.A7- 15.11.1999 – Copy of letter to the Surveyor.

Ex.A8- 15.11.1999 – Copy of letter from the Insurance company.

Ex.A9- 21.11.1999  - Copy of letter from the Surveyor.

Ex.A10-24.11.1999  - Copy of letter to the surveyor.

Ex.A11- 25.11.1999 – Copy of letter to the Insurance company.

Ex.A12- 2.12.1999   - Copy of letter to the Insurance company.

Ex.A13- 11.1.2001  - Copy of letter from the Surveyor.

Ex.A14- 15.2.2001  - Copy of letter to the Surveyor.

Ex.A15- 22.2.2001-  Copy of letter from the surveyor.

Ex.A16- 20.3.2001  - Copy of letter to the Insurance Company.

Ex.A17- 17.4.2001  - Copy of legal notice.

Ex.A18- 23.5.2001  - Copy  of reply notice.

Ex.A19- 20.2.2001  - Copy of letter.

Ex.A20- 5.1.2001   - Copy of letter to Surveyor.

Ex.A21- 30.12.2000- Copy of letter.

Ex.A22- 12.9.1997  - Copy of letter.

Ex.A23- 23.7.1997  - Copy of police complaint.

Ex.A24- 17.7.1997  - Copy of letter from delinquent employee.

Ex.A25-     -         - Copy of cheque.

Ex.A26-     -         - Copy of Memo of dishounor.

Ex.A27-     -         - Copy of FIR.  

 

Opposite party’s Side documents :

Ex.B1-         -           - Copy of terms and conditions.

Ex.B2- 20.10.2001    - Copy of Survey Report.

Ex.B3- 23.5.2001    - Copy of Advocates Reply.

 

MEMBER-I                                   MEMBER-II                                                    PRESIDENT.