DR. INDER JIT SINGH, MEMBER

1. The present Complaint has been filed under Section 21 (a) (i) of Consumer Protection Act, 1986 (for short ‘the Act’) by the Complainant against Opposite Party (OP) as detailed above, inter alia praying for:-

1. To direct the Respondent, to immediately process the entire claim of the   Complainant pertaining to “Package Policy in line with Bankers’ Indemnity Policy” bearing No. 76060346122400000056 dated 12.01.2013.

2. To direct the respondent to “disburse” the claim amount of Rs. 66,99,342/-(Rupees Sixty Six lakhs ninety nine thousand three hundred forty two only) to the Complainant, alongwith interest @ 18% p.a., with effect from 17.06.2013, till realization.

3. To award a sum of Rs. 35,00,000/- in favour of the Complainant, and against the Respondent, as compensation/damages, on account of the harassment, agony, loss of reputation suffered by the Complainant Company due to the deficiency in service on the part of the Respondent.

4. To award the cost of the present proceedings, in favour of the Complainant Company and against the Respondents.

2. Notice was issued to OP on 30.05.2018 giving them 30 days time to file written statement. Written statement by OP was filed on 18.07.2018, Complainant filed their rejoinder on 13.03.2019.

3. It is averred/stated in the Complaint that: -

1. The Complainant availed a “Package Policy in line with Bankers’ Indemnity Policy” from the Opposite Party covering the risk of it’s various branches all over the Country for the period 12.01.2013 to 11.01.2014 for Total sum insured (S.I.) of Rs.102 Crores /-.

2. On 11.06.2013, at about 02:10 PM an incident of armed dacoity took place at the Complainant’s Branch situated at P.P. Road, opposite Alka Cinema, Buxar, causing heavy loss of gold ornaments, cash and other items in the Branch to the Complainant. The Complainant computed a total loss of Rs 66,99,342/-,( including 2123.90 grams of gold, Rs.1,94,894/- as cash, DVR, CCTV camera etc.)

3. As per the procedure, the Complainant registered an FIR bearing No.265/2013 under Section 395 IPC in the Durgapur Police Station and informed the Opposite Party about the incident on 11.06.2013. Some of the robbers/ dacoits were arrested by the Police. On receipt of information, the Insurance Company appointed Mr. R.C. Bajpai Surveyor and Investigator to assess loss and investigate the claim.

4. OP vide letter dated 02.11.2016 communicated to Complainant that after the inspection of surveyor and terms of the policies the total amount that has been approved is Rs.17,04,024/-.(Assessed loss at Rs.38,66,114/- and settled claim amount at 60% of assessed loss i.e Rs 23,19,668/- and further deducted Rs 6,00,000/-on account of alleged policy excess and further deducted sum of Rs 15,645/- on alleged reinstatement premium)

5. Computations and calculations of OP are baseless, fallacious and arbitrarily made and asked to be accepted by the Complainant and an inordinate delay of about three and a half year has been done by the OP in giving the partial amount mentioned above, which is unjust and without any cogent reason.

4. The OP in their written statement/reply stated that: -

1. Each and every allegation of unfair trade practice, delay in providing the assessed loss are denied.

2. The Complaint is not maintainable as the Complainant was not a “Consumer” as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 and the same is without cause of action.

3. This Commission lacks pecuniary and territorial jurisdiction to entertain this complaint.

4. The present complaint is neither signed nor verified by the competent person and same is liable to be dismissed.

5. There is no deficiency of service and delay on part of OP, the Complainant was made aware of the stages of processing of claim from time to time.

6. The surveyor after assessment and scrutiny of document assessed the total loss Rs.43,05,373/- which further worked out to Rs.38,66,114/- by claim handling office. As per terms and conditions of the policies a net amount of Rs.17,04,024/- was offered to complainant which was refused to be accepted by them.

7. The Surveyor observed that there were serious security lapses on the part of the Complainant such as use of unlocked wooden/plywood cabinets for storing gold ornaments, violation of guidelines for office key holding, keys to strong room and grill door, burglar alarm was not raised by the employees, and the security personnel made no effort to resist the entry of miscreants. As per terms & conditions of the Policy, there must be lock and key in the almirah/cabinet inside the strong room, which was not there. The Surveyor, therefore, observed that there were lapses on the part of the Insured in providing proper security measures in the strong room. If proper security measures would have been taken, it would have minimized the extent of damages.

5. Complainant in his rejoinder denying each and every allegations made by OP in their written statement stated that: -

1. Their was no breach on part of policy by the complainant. The Complainant took all reasonable steps to safeguard the property.

2. The dacoits were armed with guns, weapons and threaten the security guard with death.

3. OP was coercing the Complainant to accept the partial amount which is not justified on their part.

6. Evidence by way of an Affidavit was filed by the complainant on 13.03.2019 and OP on 30.05.2019 broadly on the lines of averments made in their respective complaint/reply. Written Synopsis was also filed by the Complainant on 21.10.2020 and 07.09.2022 and OP on  24.11.2021.

7. This Commission, without prejudice to the rights and contentions of the parties, vide order dated 18.04.2022 ordered OP to release Rs.17,04,024/- to Complainant within four weeks and Complainant to provide the compliance report of it. However till date the status of compliance has not been filed by the parties.

8. Heard counsels of both sides. The learned counsel for the complainants while reiterating the contentions of the complaint, submitted that, since the present matter pertains to insurance policy, it should be considered and interpreted strictly and beneficially in favour of the complainant and cited Hon’ble Supreme court judgements to support their contention. The learned counsel for the OP reiterated the contention of their written statement and prayed for dismissal of complaint with heavy cost.

9. The question before us is whether settlement of the claim of the Complainant by the OP in part only (Rs.17,04,204/- against a claim of Rs. 66,99,342/- and rejection of the balance claim due to breach of warranties/ policy conditions and/or lapses stated in the letter dated 02.11.2016 is justified or not. A perusal of the Surveyor’s report dated 08.03.2014 confirms the plea of the Complainant that there is no mention of violation of any guidelines in the report. Surveyor, in his report has clearly mentioned that he has conducted survey, instituted necessary enquiries, verified cause and circumstances of loss/modus operandi, and the quantum of loss. He further stated that they have made physical verification of gold packets and also verified the available records. They also made enquiries with police department, staff members and customers for the cause and quantum of loss and the said report has been submitted after completion of their survey, physical verification and scrutiny of available records. Under ‘para 6- cause of loss’, after narrating the version as per insured and as per FIR, he gives his own version as follows:-

“The robbers committed dacoity, used deadly weapon such as pistol and threatened to cause grievious hurt to the staff members if they will not co-operate for handing over the gold packets lying in the strong room and the cash lying in cash counter.The cause of loss is day time dacoity. In any case the risk is accidental in nature and covered under the Policy.”

10. Further, giving details of police investigation, the surveyor has mentioned in the report that the Buxar Police have registered the case, arrested some accused, who have confessed the case, but till date no recovery of gold packets has been made. There is also a mention of vigilance enquiry interim report in Surveyor’s report, as per which both the security guards were present in the branch at the time of dacoity, unarmed guard was frisking the customers/visitors properly, two customers entered the branch posing themselves as customers, after some minutes they took out their pistol and other 6-8 criminals also entered the branch with pistols and overpowered the security guards, all staff members were pushed in the pantry on pistol point, all were in fear due to which they handed over the keys of the strong room. Under para 12- security measures and lapses observed, of the Surveyor’s report, it is mentioned that the seven culprits very easily one by one entered the branch without resistance from the security guard, the culprits being well planned, committed the burglary in a pre-planned conspiracy, there were seven alarm points present in the branch but on the date of incident none of the alarm points was raised at the time of incident.

In para 13 (a) observation of compliance of standing instructions, Surveyor has clearly mentioned that

“We have verified the compliance of standing instructions relating to safe custody of gold packets, cash and found that:

• Gold packets pledged were kept as per standing instructions.
• The amount of cash was separately entered in cash denomination register.”

11. In para 13(b) on compliance relating to strong room management and key discipline, in report says, the verification of the compliance with the laid down procedure for custody of keys under strong room operation is found in agreement. Every strong room has a main door and grill gate. The main door is operated by a master key (which is in possession of principle custodian) and two custodian keys. Similarly, the grill gate has two sets of custodian keys, branch manager is the principal custodian and accounts assistant is the joint custodian. The strong room and grill gate are operated by the joint custodian . Regarding key movement register, in para 13(c) the surveyor has mentioned ‘we have verified the compliance of standing instructions relating to key movement register and found that everything was strictly followed, as per instructions laid down’ . The Surveyor further stated that they have physically verified the gold packets left after the incident, have verified the quantity of gold found on physical verification with the records maintained by the insured, and gold packets before the incident have been checked from the gold movement register, have verified the cash book and cash denomination register and co-related with the cash loss claimed.

12. In para 16, the Surveyor’s report inter-alia states the following:-

• “There were two security guards one with the arms and the other was without the arms.

• In branch office, the alarm points are present at various places but at the time of incident none of the person could raise the alarm. In our enquiry & investigation we found that employees were at gun point and due to fear of their life they could not operate the alarm.

• The gold packets were duly packed, sealed and safely kept in the almirah/racks inside the strong room.

• The gold packets lodged are daily recorded in Gold movement register.

• As per our verification it appears that almost all the gold packets kept in the strong room has been looted by the culprits.

13. Regarding basis of indemnification, the report states that gross and net weight of gold packets lost in the incident has been provided by the insured. Although insured has claimed gross weight of gold lost. Surveyor have considered the net weight of each item and then also correlated with the physical verification and records submitted by the insured.

Surveyor has assessed the total loss as under and recommended the insurer to settle the claim as per terms and conditions of the policy:-

14. In view of the above facts and after careful consideration of the Surveyor’s report, we find that reasons advanced by the OP for settlement of claim for lessor amount of Rs.17,19,669/- for alleged breach of warrantee, vide their letter dated 02.11.2016 are not valid. They ought to have processed the claim as per the report and recommendations of the Surveyor. There is no breach of warranties/policy conditions on the part of Complainants. The Complainants took all reasonable care in this case. Surveyor has assessed the loss at Rs.43,05,373/- while the OP, after consideration of Surveyor’s report assessed the loss at Rs.38,66,114/-. No reasons have been given in their letter dated 02.11.2016 addressed to the Complainant for reducing the assessed loss from Rs.43,05,373/- as assessed by the Surveyor to Rs.38,66,114/- . Hence the Complainant is entitled to the claim as recommended by the Surveyor in his report dated 15.01.2016.

15. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -

1. OP is directed to pay the amount as assessed by the Surveyor i.e. Rs. 37,05,373/- (Rupees thirty seven lakh five thousand three hundred seventy three only) (Net assessed loss minus excess clause)

2. OP shall also pay simple interest on the due amount @ 9% p.a. from  17.12.2013 ( i.e. six months from the date of filing the claim) till the date of actual payment. Amount paid by the OP in pursuance of order dated 18.04.2022, if any, shall be adjusted from the total amount to be paid.

3. The OPs shall pay a sum of Rs.25,000 /- as cost of litigation to the    complainants. 

4. The payment in terms of this order shall be paid within three months from today.

16. The pending IAs, if any, also stand disposed off.