In the Consumer Disputes Redressal Forum, Burdwan.
(Nivedita Pally, G.T. Road, P.O.-Sripally, Dist.-Burdwan)
Consumer Complaint No. - 185/2015.
Date of filing - 25.08.2015.
Date of final order - 18.03.2016
Present
i) Sri Asoke Kumar Mandal Honorable President.
ii) Sri Pankaj Kumar Sinha Honorable Member.
State Govt. Employees’ Consumers Co-operative Stores,
Distributor of L.P.G., having its office at Court Compound,
P.O., P.S. & District-Burdwan, Pin-713101.
Represented by its Manager.
Complainant.
VERSUS
- New India Assurance Company Ltd., having its branch office
at R.G. Bhawan (1st Floor), Parbirhata, Chotonilpur More,
G.T.Road, P.O.-Sripally, P.S. & Dist.-Burdwan, Pin-713103.
Represented by its Branch Manager.
- State Bank of India, Burdwan Main Branch, Court Compound,
Burdwan, Pin-713101.
Represented its Branch Manager.
Opposite Parties.
Appeared for the complainant : Ld. Advocate Subrata Ghosh & Debdas Rudra.
Appeared for the Opposite Party No.1 : Ld. Advocate Saurabh Dey.
Appeared for the Opposite Party No. 2: Ld. Advocate Soham Som
F I N A L O R D E R
This is a case U/S 12 of Consumer Protection Act, 1986 filed by the Bawa Singh for an award directing the O.Ps. to pay Rs.1,00,000/- towards indemnification of loss, to pay Rs. 50,000/- as compensation towards mental pain, agony and harassment and to pay Rs.20,000/- towards litigation cost.
The complainant’s case in short is that Mr. Shantashil Pal S/O Nirupam Pal, resident of Vill- Giara, P.O. Bara Kashiwara, P.S. & Dist. Burdwan, the employee of the complainant, being authorized went to deposit the complainant’s cash amount of Rs. 1,93,060/- keeping
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the same in a bag, in the current Account of the complainant lying with the State Bank of India, Main Branch, at Burdwan (O.P. No. 2) on 12-05-2014 at about 12.00 noon. Due to rush in the cash counter, Mr. S. Pal was sitting in sitting area in front of the cash counter inside the bank premises for his turn to deposit but when his turn came and when he was
making himself ready to deposit the money, he noticed that two numbers of bundles of Rs. 500/-, each bundle contained 100 pieces i.e. total Rs. 1,00,000/- had been stolen away by unknown person/persons by cutting the side of the bag. Mr. pal being confused started hue and cry in side the bank premises. Immediately he brought such fact into the notice of the Bank Authorities as well as knowledge of on duty security officer of the bank. He on the same day,requested the O.P. No. 2 in writing, to find out the unknown miscreant with the help of C.C.T.V. Footage and to recover & refund such stolen amount. Thereafter on 12-05-2014 before the I.C. Burdwan P.S. lodged a complainant which was registered as F.I.R. No. 656 of 2014 dt. 12-05-2014 u/s 379 I.P.C.
The complainant was insured under the coverage of the Multi Perils for LPG Dealers Policy bearing No. 51250248131300000006 issued by O.P. No. 1 New India Assurance Company Ltd. for the period from 13-12-2013 to 12-12-2014. The complainant intimated the fact of theft to the O.P. No. 1 on 13-05-2014 and made claim with necessary papers to indemnify the loss. On the basis of said claim the O.P. No. 1 appointed its Surveyor/Loss assessor who by his letter dt. 15-05-2014 asked the complainant to submit documents mentioned in the letter for settlement of the claim. The complainant submitted all the required documents which are copies of F.I.R., Annual Audit report 2012-2013, Cash & Bank Book from 01-04-2013 to 15-05-2014, Trade License, Pay Roll and Transit registration from 13-12-2013 to 15-05-2014. The complainant failed to submit certified copy of Final Police Report at that time. Showing such reason the O.P. No. 1 closed the claim file and intimated the complainant vide its letter dt. 23-12-2014. Thereafter the complainant submitted the certified copy of Final Police Report along with a letter dt. 03-02-2015 praying to re-open the claim file. But no fruitful action was taken. The complainant again made request the O.P. No. 1 to settle the claim re-opening the claim file vide letter dt. 28-02-2015. The O.P. No. 1 then re-opened the file but till this day, the claim has not been settled. The O.P. No. 1 intimating that they made a request to the O.P. No. 2 to intimate what steps they have taken on the basis of C.C.T.V. Footage and to provide the C.C.T.V. Footage dt. 12-05-2014, asked the complainant to obtain the C.C.T.V. Footage by persuasion etc. On various pretext the O.P. No. 1 killed time. In the matter of settlement of claim the O.P. No. 1 has gross negligence and deficiency in service. It is nothing but unfair trade practice.
The O.P. No. 2 in spite of due intimation, has not preserved the C.C.T.V. Footage and though, it was the duty of the O.P. No. 2 to protect safety and security of its customer in its premises, it did not take any steps to discharge its liability. So there are negligence and deficiency in service on the part of O.P. No. 2. The O.Ps. are liable to pay the loss amount, compensation and litigation cost. Hence this case with the prayer as mentioned above.
The O.P. No. 1 contested this case by filing its W.V. while stating inter alia that the case is not maintainable, this forum has no jurisdiction to try this case and the complainant has no cause of action. It has been further stated by this O.P. that the complainant as insured took
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a Multi Perils For L.P.G. Dealers’ Policy from this O.P.’s Burdwan Branch Office, being Policy No. 51250248131300000006 for the period from 13-12-2013 to 12-12-2014, covering the risk of Cash in Transit by Bag/Briefcase etc. with Sum Assured of Rs. 50,000/- amongst other Risks covered by under the said Policy in question but in this particular case, as per Exclusion Clause Nos. 2,3 & 11 the complainant is not entitled get any relief as there was no document showing authority of Mr. Shantashil Pal, the employee of the complainant, in the matter of
carrying the money, deposit of the same in bank, showing what action has been taken against Mr. S. Pal, etc. and as General Condition No. 3 was violated without taking reasonable care and by carrying money in a cotton Side Bag, immediately on receipt of the claim, this O.P. appointed Sri Krishna Binod Jash as Investigator/Loss Assessor, he investigated the matter, during the course of investigation he requested the O.P. No. 2 to supply the C.C.T.V. Footage but the O.P. No. 2 did not supply the same intimating that the same was haze and the police investigated the Branch and searched the C.C.T.V. Footage of the Branch, said investigator Krishna Binod Jash by submitting repot dt. 17-09-2014 intimated that Mr. S. Pal carried Cash Money of Rs. 1,93,060/- by a side bag to deposit the same in State Bank of India, Burdwan Main Branch but in the bank premises in front of Cash Counter, out of such amount Rs. 1,00,000/- [In two Bundles of 100 each of bundle denomination of Rs. 500/- Currency] was lost from said side bag and he has given an opinion that in this particular case, as per terms of policy the Insurer’s liability is to pay maximum of Rs. 50,000/- only, thereafter the O.P. No. 1 by writing a letter dt. 19-02-2015 requested the Branch Manager of O.P. No. 2 to give his opinion regarding alleged theft and to submit the statement along with C.C.T.V. Footage part, the Bank Authority did not pay any heed, as such the O.P. No. 1 requested the complainant to procure C.C.T.V. Footage from Bank and to submit the same, the complainant has failed to do so, the O.P. No. 2 did not co-operate this O.P. in this matter, as such this O.P. has kept pending the settlement of claim and this O.P. has no latches and deficiency in service in its part. It is therefore claimed by this O.P. that case should be dismissed with cost.
The O.P. No. 2 also contested this case by filing separate W.V. while stating inter alia that the case is not maintainable, the complainant is not a consumer and the complainant has no cause of action. It has been further stated by this O.P. that being intimated about the alleged stolen of Rs. 1,00,000/- by cutting bag by unknown persons, the Branch Manager and Security Officer of the branch jointly investigated the matter and review the C.C.T.V. Footage but no such irregularities was found, on the basis of the F.I.R. lodged by the complainant the police investigated the matter but found no irregularities, the police did not seized the C.C.T.V. Footage and did not ask this O.P. to preserve the C.C.T.V. Footage, the O.P. No. 1 did not claim any C.C.T.V. Footage for their investigation, the complainant never claimed the C.C.T.V. Footage, the C.C.T.V. Footage was deleted automatically after three
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months, so there was/is no deficiency in banking service on the part of the O.P. No. 2 and this O.P. has no liability to pay the loss amount and other amount as claimed and the relation of serving of the C.C.T.V. Footage to the complainant is not the banking service. It is therefore claimed that complaint is liable to be dismissed with cost.
DECISIONS WITH REASONS
In support of his case, the complainant has adduced evidence on affidavit and copies of several documents which are letter dt. 12-05-2014 written to the O.P. No. 2, written
complaint dt. 12-05-2014 made before the police, letter dt. 13-05-2014 written to the O.P. No. 1, related insurance policy including policy schedule, letter dt. 14-05-2014 asking show cause, letter dt. 15-05-2014 written by surveyor Mr. Jash, letter dt. 08-12-2014 issued to the complainant, letter dt. 23-12-2014 issued to the complainant, letter dt. 03-02-2015 issued to the O.P. No. 1, F.I.R. No. 656/14 dt. 12-05-2014, written complaint of G.R. No. 2195/14, final police Report submitted in G.R. Case No. 656/14, letter dt. 28-02-2015 written to the O.P. No. 1 and letter dt. 30-03-2015 written to the complainant. In support of its case the O.P. No. 1 has relied upon the documents submitted by the complainant, copies of survey report dt. 17-098-2014, letter dt. 15-10-2014 issued by O.P. No. 1, letter dt. 19-02-2015 written to O.P. No. 2, letter dt. 27-02-2015 issued by the surveyor and Evidence on Affidavit given by the surveyor Mr. Jash. From the side of the O.P. No. 2 no separate evidence has been adduced except its W.V. supported by affidavit.
We have gone through the contents of the pleadings and the evidence on record carefully.
Before deciding the question whether there were negligence and deficiency in service on the part of the O.P. No. 2 and whether the O.P. No. 2 has any liability to pay compensation to the complainant, we like to decide whether there were negligence, deficiency in service & unfair trade practice on the part of the O.P. No. 1 the insurer.
It is not disputed that that the complainant as insured took a Multi Perils For L.P.G. Dealers’ Policy from this O.P. No. 1 through Burdwan Branch Office, being Policy No. 51250248131300000006 for the period from 13-12-2013 to 12-12-2014, covering the risk of Cash in Transit by Bag/Briefcase etc. with Sum Assured amongst other Risks covered by under the said Policy in question. The policy schedule for Multi Perils For L.P.G. Dealers’ Policy shows that in said policy ‘Sum Insured’ was Rs. 55,000/- In the W.V. the O.P. No. 1 has stated that Sum Assured was of Rs. 50,000/- The content of the document will prevail the contents of W.V. So we hold that in the policy in question ‘Sum Insured’ was Rs. 55,000/-. The letter dt. 13-05-2014 shows that on next day of the occurrence, the complainant intimated the incident of theft to the O.P. No. 1 and by said letter the complainant made claim the ‘Sum Insured’. From the other documents and admission of the complainant & O.P. No. 1, it appears that the O.P. No. 1 appointed its surveyor Sri Krishna Binod Jash to
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investigate the alleged theft and to assess the loss payable by the O.P. No.1 to the complainant, Sri Krishna Binod Jash investigated the incident after obtaining the necessary document from the complainant and without getting the C.C.T.V. Footage from O.P. No. 2 and submitted his report confirming the loss of cash money of Rs. 1,00,000/- from the side bag of the insured’s employee Mr. Pal by cutting a portion of the same in front of S.B.I. Burdwan Main Branch Cash Counter and observing that Mr. Santasil pal was carrying cash money of Rs. 1,93,060/- by a side bag to deposit the same in S.B.I. Burdwan Main Branch but there from Rs. 1,00,000/- (in two bundles of 100 pieces of Rs. 500/- currency each) was stolen. In the report, he has admitted that during the course of investigation, he verified necessary documents including cash book, cash transit book, bank statement etc. and interrogated the persons concerned. The O.P. No. 1 has relied upon the evidence on
affidavit of the investigator Mr. Jash. On perusing such evidence on affidavit it appears that Mr. Jash has corroborated his report as mentioned above, by his evidence on affidavit. It has already been mentioned that the O.P. No. 1 itself appointed Mr. Jash as investigator. Till this day the O.P. No. 1 has not cancelled such report. In spite of that the O.P. No. 1 has not settled the claim of the complainant. Moreover the to kill time and to harass the complainant, the O.P. No. 1 made several correspondences with the complainant and O.P. No. 2 asking to provide the C.C.T.V. Footage which could be considered as a piece of evidence only but it could not be said that in absence of said evidence the claim of the complainant shall not be settled where the investigator of O.P. No. 1 has confirmed the loss as claimed by the complainant.
In view of our above discussions we are of the opinion that the O.P. No. 1 (the insurer ) has liability to pay Rs. 55,000/- as loss suffered by the complainant and to pay Rs. 10,000/- as compensation for harassment and mental pain, to the complainant. For the fault of the O.P. No. 1, the complainant was forced to come before this Forum. So the O.P. No. 1 is also liable to pay Rs. 1,000/- to the complainant as litigation cost.
Now it is essential to consider whether there were negligence, deficiency in service & unfair trade practice on the part of the O.P. No. 2 the banker. It is admitted that the complainant has a Current Account with the O.P. No. 2 (S.B.I. Burdwan Main Branch). So the complainant is the customer/consumer of the O.P. No. 2 and the O.P. No. 2 is the service provider. In deciding the Revision Petition No. 1046 of 2003/A. [Col. D. S. Sachar (Retd.) Vs. Punjab & Sind Bank case reported in [2005 2 CPJ (NC) 130/ [2005] 0 NCJ (NC) 540/ [2005] 2 CPC(NC) 61] the Hon’able National Commission has been pleased to observe that the basic duty of the armed guard of the Bank is to provide protection to the bank’s cash/valuables and property and employees/customers against dacoity/robbery, snatching, pilferage, sabotage and presently, the bank armed guards are provided with 12 Bore DBBL guns to protect the interest of the bank, its employees and customers against criminals. In said case the Hon’able National Commission has been pleased to hold further that ensuring safety of the money to be deposited and/or withdrawn inside the Bank premises is
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impliedly part of service rendered by a Bank to a customer. Relying upon the above observations we are of the opinion that the O.P. No. 2 being the banker had liability to protect Mr. Shantashil Pal the employee of the complainant in side its premises on 12-05-2014. The complainant has brought the case that Mr. Shantashil Pal S/O Nirupam Pal, resident of Vill- Giara, P.O. Bara Kashiwara, P.S. & Dist. Burdwan, the employee of the complainant, being authorized went to deposit the complainant’s cash amount of Rs. 1,93,060/- keeping the same in a bag, in the current Account of the complainant lying with the State Bank of India, Main Branch, at Burdwan (O.P. No. 2) on 12-05-2014 at about 12.00 noon but due to rush in the cash counter, Mr. S. Pal was sitting in sitting area in front of the cash counter inside the bank premises for his turn to deposit but when his turn came and when he was making himself ready to deposit the money, he noticed that two numbers of bundles of Rs. 500/-, each bundle contained 100 pieces i.e. total Rs. 1,00,000/- had been stolen away by unknown person/persons by cutting the side of the bag, Mr. pal being confused started hue and cry in side the bank premises, immediately he brought such fact into the notice of the Bank Authorities as well as knowledge of on duty security officer of
the bank and he on the same day, requested the O.P. No. 2 in writing, to find out the unknown miscreant with the help of C.C.T.V. Footage and to recover & refund such stolen
amount. On the other hand the O.P. No. 2 has stated in its W.V. that being intimated about the alleged stolen of Rs. 1,00,000/- by cutting bag by unknown persons, the Branch Manager and Security Officer of the branch jointly investigated the matter and review the C.C.T.V. Footage but no such irregularities was found. No document has been produced from the side of the O.P. No. 2 to show that the Branch Manager and Security Officer of the branch jointly investigated the matter and review the C.C.T.V. Footage. The O.P. No. 2, knowing fully well that the O.P. No. 1 being the insurer started investigation by appointing Investigator Mr. Jash who in writing requested it to provide the C.C.T.V. Footage and interrogated the concerned employees of it and knowing fully well that a criminal proceeding was started by the police on the basis of written complaint made by the present complainant, allowed the C.C.T.V. Footage of 12-05-2014 to be deleted with the expiry of the stipulated period without preserving the same. From the evidence on record it appears that in spite repeated verbal and written requests the O.P. No.2 did not provide said C.C.T.V. Footage to the complainant, the surveyor or to the O.P. No. 1. The O.P. No. 2 did not take any steps nor started any departmental investigation to identify the miscreant or to recover the stolen amount where ensuring safety of the money to be deposited and/or withdrawn inside the Bank premises is impliedly part of service rendered by it to a customer. Nothing is coming to show that this O.P. No. 2 co-operated the complainant and O.P. No. 1 to identify the miscreant and to recover the money stolen. The evidences on record clearly show that there was negligence and deficiency in service on the part of the O.P. No. 2 and for such negligence and deficiency in service, the complainant was harassed and suffered mental pain and agony and also has been forced to come before this Forum to get relief. So the O.P. No. 2 is liable to pay compensation equals to the loss. In foregoing lines it has been decided that the complainant has suffered a loss of Rs. 1,00,000/- and the O.P. No. 1 has liability to pay Rs. 55,000/- to compensate the loss. The complainant should be given double benefit. So the O.P. No. 2 is liable to pay Rs. 45,000/- to the complainant to compensate the loss of money. The O.P. No. 2 is also liable to pay Rs. 10,000/- as further
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compensation for mental pain and agony and Rs. 1,000/- as litigation cost to the complainant.
In view of the above findings the complaint case succeeds. Fees paid is correct.
Hence it is
ORDERED
that the complaint case is allowed on contest against the O.Ps.,
that the complainant do get an award directing the O.P. No. 1 and O.P. No. 2 to pay
Rs. 55,000/- (Fifty five Thousand) and Rs. 45,000/- (Forty five Thousand) respectively to
compensate the loss/stolen amount, to pay Rs. 10,000/- (Ten Thousand) each as
compensation for harassment & mental agony and to pay Rs. 1,000/- (One thousand) each
as litigation cost to the complainant within 45 days from this day, failing which the entire
awarded amount will carry interest @ 9% p.a. for the default period and the complainant
will be at liberty to put this award in execution in accordance with law.
Let the copies of this order be supplied to the parties free of cost.
(Asoke Kr. Mandal)
Dictated and corrected by me. President,
D.C.D.R.F., Burdwan
(Asoke Kr. Mandal)
President,
D.C.D.R.F., Burdwan
(Pankaj Kr. Sinha)
Member,
D.C.D.R.F., Burdwan
