Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 301.
Instituted on : 20.08.2013.
Decided on : 10.07.2015.
Satish Kumar s/o Sh. Raghunath Prop. M/s Satish Motors, having Shop at Hissar Road, Rothak.
………..Complainant.
Vs.
National Insurance Co. Division No.II, IInd Floor, Narain Complex, Rohtak through its Divisional Manager.
……….Opposite party.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
Present: Sh.Gulshan Chawla, Advocate for the complainant.
Sh.Anil Sharma, Advocate for the opposite party.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he is running a business in the name and style of M/s Satish Motors and has got the shopkeeper policy bearing no.421600/48/10/9800000057 for the period from 11.05.2010 to 10.05.2011 from the opposite party for the re-imbursement/compensation in case of loss. It is averred that on 05.08.2010 Vijay Pal s/o Sh. Dhanpat Rai-employee of the complainant got the withdrawal of Rs.49000/- from the PNB-Babra Mohalla, Rohtak, as complainant being the holder of the cheque, which was collected from the client of the complainant and the amount was to be deposited in Allahabad Bank-Jhajjar Road, Rohtak. It is averred that during the transit, some unknown persons took away the amount from the possession of Satish Kuamr and FIR No.620 dated 25.08.10 was lodged with the P.S.City, Rohtak and the intimation was given to the opposite party without any delay. It is averred that the complainant deposited the required documents with the opposite party for the settlement of claim but the opposite party lingered on the matter and vide letter dated 24.11.2011 had repudiated the genuine claim of the complainant. It is averred that complainant requested the opposite party to reconsider the genuine claim of the claim but to no effect. It is averred that the act of opposite party is illegal and amounts to deficiency in service. As such it is prayed that the opposite party may kindly be directed to make the payment of Rs.49000/- alongwith interest, compensation and litigation expenses.
2. On notice, opposite party appeared and filed its written reply submitting therein that after getting the information about the theft of money the opposite party deputed Major Mehar Singh Surveyor & Loss Assessor for finding out the facts regarding the loss of money in transit. But the surveyor/investigator pointed out in his report (i) that the amount loss in transit does not pertains to firm of the complainant. It was a self cheque of the third party and nor a firm’s cheque for which cash withdrawn by the messenger of the complainant (ii) that the messenger deviates from the objective/off routed the way where he was pick pocketed. The messenger Vijay Pal withdrew Rs.49000/- on the self cheque from PNB Babra Mohalla Rothak but he has deviated from his objective and route. Instead of going to his employer’s premises he went to State Bank of India for completion of his father’s pension/saving pass book and in that process alleged amount Rs.49000/- was pick pocketed. It is averred that keeping in view the investigator’s report and policy conditions which covered only cash in transit from business premises to bank and from bank to business premises and your firm must have lien on that money/cash. Thus the loss does not fall within the coverage of money in transit. As such as per terms and conditions of the policy, the claim was rightly repudiated by the opposite party. All the other contents of the complaint were stated to be wrong and denied. Opposite party prayed for dismissal of the complaint with cost.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant in his evidence tendered his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C6 and has closed his evidence. On the other hand, Ld. counsel for the opposite party tendered affidavit Ex.R1, documents Ex.R2 to Ex.R6 and has closed his evidence.
5. We have heard ld. counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case it is not disputed that as per policy schedule Ex.C1 under the shopkeepers Insurance Policy there was a money insurance: ‘In transit’ for a sum of Rs.100000/- per carrying. It is also not disputed that as per copy of FIR Ex.C2 an amount of Rs.49000/- was pick-pocketed from the employee of the complainant which he had withdrawn from the same day from PNB, Babra Mohalla, Rohtak. After the incident complainant filed the claim with the opposite party but the opposite party vide its letter Ex.C6 has repudiated the claim of the complainant on the ground that (i) that the amount loss in transit does not pertains to firm of the complainant, the messenger deviates from the objective/off routed the way where he was pick pocketed. It is further submitted in the letter that the policy covers only cash in transit from business premises to bank and from bank to business premises and the firm must have lien on that money/cash.
7. After going through the file and hearing the parties it is observed that to prove the fact that the amount so pick-pocketed from the employee of the complainant, the complainant has placed on record copy of bill Ex.C5 dated 05.07.2010 whereby he had sold the material of Rs.49300/- to one Amit Nagpal. It is also observed that as per document Ex.C1/Ex.R6 the Money in transit upto Rs.100000/- per carrying was insured under the policy. However it is nowhere mentioned in the policy that the policy covers only cash in transit from business premises to bank and from bank to business premises. Moreover at the time of occurrence he was on its way from bank to business premises. It is also on record that neither the terms and conditions of the policy have been placed on record nor the supply of the same to the complainant has been proved on file. In this regard we have placed reliance upon the law cited in 2013(1)CLT 589 titled as New India Asurance Co. Ltd. Vs. Pabbati Sridevi & Others whereby Hon’ble National Commission has held that: “Terms and conditions therein, not communicated to the insured-Whether can be used by Insurance Company-No-Held that the terms and conditions were never issued to the insured-Policy is in the nature of standard, printed documents. There is nothing to show that its contents were part of the policy document issued to the insured-Terms and conditions in insurance policy cannot be rely upon by insurance company” and as per 2008(3)CLT 377 titled Dharmendra Goel Vs. Oriental Insurance Co. Ltd., Hon’ble Supreme Court of India has held that: “If a particular claim to compensation is possible on the material on record, it should not be denied on hyper technical pleas that claim was limited by complainant to a lower amount”. Therefore in view of the aforesaid law which are applicable on the facts and circumstances of the case, it is observed that the repudiation of the claim of the complainant by the opposite party is illegal and amounts to deficiency in service and the opposite party is liable to pay the insurance claim to the complainant.
8. In view of the aforesaid findings and discussions, it is observed that opposite party shall pay the amount of Rs.49000/-(Rupees forty nine thousand only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 20.08.2013 till its actual realization and shall also pay a sum of Rs.2500/-(Rupees two thousand five hundred only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the opposite party shall be liable to pay interest @ 12% p.a. on the awarded amount from the date of decision. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs.
10. File be consigned to the record room after due compliance.
Announced in open court:
10.07.2015.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
