Orissa

Cuttak

CC/182/2014

Srigopal Periwal - Complainant(s)

Versus

Senior Branch Manager,The Oriental Insurance Company Limited - Opp.Party(s)

R Sharma

31 May 2017

ORDER

 

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.182/2014

 

Proprietor, Srigopal Periwal,

M/s. Shree Gopal Nandkishore,

Whole Sale Cloth Merchant,

Pithapur,Cuttack.                                                                   … Complainant.

 

                Vrs.

 

1.        Senior Branch Manager,

The Oriental Insurance Company Limited,

City Branch Office,1/A,N.K.House,

Station Square, Bhubaneswar.

 

2.        Senior Divisional Manager,

The Oriental Insurance Company Limited,

Divisional Office-1, Bajrakabati Road,Cuttack                   … Opp. Parties.

 

Present:              Sri Dhruba Charan Barik,President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:    09.12.2014

Date of Order:  30.05.2017.

 

For the complainant        :       Sri R.Sharma, Advocate & Associates.

For the O.Ps.                     :       Mr. M.Sinha,Adv. & Associates.

 

Sri Bichitra Nanda Tripathy, Member.

                The complaint is against deficiency in service on the part of O.Ps.

1. The case in nutshell is that the complainant is a whole seller on cloth and sales cloth to various shop owners throughout Odisha.  He sales on credit and subsequently collects cash from various shop keepers.  He has taken an insurance policy from the Oriental Insurance Company Limited vide policy No.345304/48/2009/2215 dt.31.10.2008.  The said policy provides coverage for carrying cash/cash in transit up to 8 lakhs and Rs.50,00,000/- for petty cash, expenses, payment of salary etc and risk of burglary inside the business premises.(copy of insurance policy vide Annexre-1).  On 31.10.2009 while Sri Bajranglal Periwal S/O: Srigopal Periwal, Proprietor, M/s. Shjree Gopal Nandkishore was returning from Nayagarh after collecting cash from various shop owners of Jatni,kHurda,Pubasahi,Baghamari,Kalapathar,Bhapur,Kualisahi,Nayagarh,Itamati and Rajsunakhala with approximately Rs. 10 to 10.5 lakhs in a car i.e. Tata Indica bearing No.OR-05-AG-0620 along with his driver and staff Sri Biswa Narayan Tripathy at about 9.15 P.M. in between Pichukuli and Tikatala 4 persons stopped the car, attacked them with weapons like Bhujali and Revolver.  They caused serious injury to Mr. Bajranglal Periwal and looted the bag in which money receipt and entire cash amounting to Rs.10 lakhs to 10.5 lakhs was kept.  They also looted the mobile, purse, chain and some other  documents etc. from Bajrangilal Periwal.  FIR was lodged with Begunia Police Station vide FIOR No.123(11) on 01.11.2009. (copy of FIR vide Annedxure-2).  Police investigated the matter and two of the culprits were arrested and a sum of Rs.2,02,000/- was received from them.(copy of charge sheet dt.03.03.2010 vide Annexure-3).  The complainant lodged money in transit insurance claim with the O.Ps on 05.11.2009 stating there in that the total cash loss was Rs.10,32,770/-(Annexure-4).  After receiving the claim form from the complainant the O.P appointed Er. S.C.Senapati, Surveyor to conduct survey and submit report.  The complainant submitted documents as required by the surveyor.  The complainant also submitted copy of money receipts vide M.R No.411 to 469, all 59 in nos. as obtained from respective parties who had paid money and obtained receipts for the purpose on the date of robbery i.e. on 31.10.2009. (Copies of such receipts vide annedxure-5).  The surveyor verified such money receipts along with son of the complainant on 19.09.2010 and on 21.009.2010.  The surveyor visited Jatni, Khurda, Baghamari, Pubusahi, Kalapathar, Kalisahi, Bhapur, Rajsunakhala on 19.09.2010, Itamati and Nayagarh etc. on 21.09.2010.  Out of 21 nos. of shop owners, 13 shop owners have produced 38 nos. of money receipts for verification whereas rest  8 nos. of shop keepers could not furnish the money receipts for verification as because their Accountants were not present on that date.  Such shop keepers also stated that the money receipts which were shown by the surveyor to them were genuine and the same can be produced before the surveyor if he visits again.  Although the surveyor had stated that he will visit again for doing the needful in respect of shop owners who had failed to produce the receipts on the concern dates, the surveyor did not visit again and submitted the survey report on 30.03.2011 before the O.Ps(Copy of survey report dt.30.0-3.2011 vide Annexure-6).  Vide the said survey report the surveyor had estimated the loss at Rs.4,35,000/- as stated at page 9 & 10 of the survey report.  The surveyor did not believe the version of shop owners who had failed to produce their receipts and calculated the total loss at Rs.4,35,000/- even if the total loss sustained by the complainant was Rs.10.32,770/- against the sum assured worth Rs.8,00,000/-.  The O.Ps settled the claim at Rs.4,35,000/- on 14.03.2013 and the complainant received a discharge voucher for the purpose on dt.14.3.2013.  The complainant enquired regarding the matter and was supplied with a copy of the survey report and was also intimated that basing on the said survey report the discharge voucher was prepared. (Copy of discharge voucher dt.14.03.2013 vide Annexure-7).  The complainant vide his letter dt.18.03.2017 intimated to O.Ps that the amount indicated in discharge voucher is not acceptable to him (Annexure-8),  The O.Ps requested the complainant to submit copy of final police report vide their letter dt.23.04.2013(Annexure-9).  The complainant submitted copy of such report i.e. G.R. case converted to S.T case No.25/97124/13/11/10 on 09.09.2014.(Annexure-10) and certified copy of order sheet.  O.Ps wanted the complainant to submit copy of final police report on 15.9.14(Annexure-11).  Till date the claim of the complainant is not settled on some plea or other.  Finding no other way, the complainant has taken shelter of this Hon’ble Forum.  He has prayed to direct the O.Ps to pay full claim amount i.e. Rs.8,00,000/- along with interest @ 18% from the date of incident i.e. 31.10.1009 along with compensation worth Rs.50,000/- towards mental agony and harassment and a sum of Rs.10,000/- towards cost of litigation.
2. The O.Ps (1 & 2) vide their written version dt.02.04.2015 have intimated that Insurance Policy No.345304/48/2009/2115 was valid from 02.11.2008 to 01.11.2009.  The sum insured in the policy was as under Section-IA single carrying limit Rs.50,00,000/-, Section-IB,IC,ID single carrying limit Rs.7,00,00,000/- Sec-I Estimated total amount of money in transit per annum Rs.7,00,000/- and Section-II Rs.50,00,000/-.  The surveyor Sri S.C.Panigrahi was deputed by the O.Ps to survey and submit the report.  Surveyor Sri Panigrahi visited various shops at different places on 19.09.2010 and 21.09.2010 in order to verify the original money receipts and to ascertain the genuineness of the money collected and said to have looted subsequently.  Upon verification of various money receipts, the surveyor found that some of the names of the debtors and the amount received from them were not reflected in the balance sheet prepared of the insured for the year ended 31.3.2009 and 31.3.2010 by the insured’s Chattered Accountant which were submitted to the surveyor.  The insured could not reconcile the same.  The surveyor has also reported that the cash flows  for the period from April,2009 to October,2009 (actual cash collection) was in the overall of Rs.54,86,683/-.  The surveyor has also observed that some of the credit holder could not furnish the related cash memo against the collection amount paid to the insured.  The money receipts which were furnished to the surveyor comprises a total sum of Rs.6,37,000/- and the insured could not produce money receipt as against his so-called collection of Rs.3,95,770/-. Since a sum of Rs.2,02,000/- was recovered by the police and was paid to the complainant, the net loss was assessed by the surveyor @ Rs.4,35,000/- which is payable only after submission of all required documents for processing and settling the claim.  Vide their letter dt.21.03.2013 the O.Ps requested the complainant to furnish the certified copy of police report in the final form including the present status of the criminal case (Annexure-A) but the same remained not attended.  The complainant was reminded on 23.04.2014 that unless he submits the relevant documents the matter relating to settlement of claims will not be reopened. (Annexure-B).  The complainant failed to give a satisfactory reply for which the O.Ps send a pre-repudiation notice to the complainant on 15.12.2014.  The O.Ps vide the above letter also intimated that the claim is not tenable for non-submission of final police investigation report from the concerned SDJM court with the order of the court towards acceptance of the investigation report of the police and certified copy of the latest position of the  case(as on date).  The complainant was also allowed a period of 2 weeks to submit a suitable reply to this effect failing which the claim shall stand repudiated. (Annexure-C).  The complainant did not reply to the letter dt.15.12.14 of the O.Ps for which the claim was repudiated vide letter dt.6.1.2015 of the O.Ps.(Annexure-D).  The O.Ps have denied the fact that the complainant was issued with a discharge voucher dt.14.3.2013.  The O.Ps have also intimated that they have not received any letter dt.18.3.2013 from the complainant and the letter dt.18.3.13 as said to be submitted by the complainant vide annexure-8 is a manufactured document.  Vide letter dt.22.11.2011 the insured was asked to submit the final investigation report in original as the original report is mandatory to settle a burglary claim.  Subsequently upon receipt of the final police investigation report dt.21.12.2011, the O.Ps found that the investigation was not complete for which the complainant was requested vide letter dt.21.03.2013 to furnish the certified copy of the order sheet to show the present status of the case.  It was also clear from the letter dt.23.04.2014 of the O.Ps(Annexure-B) that the G.R  case was still pending for which the complainant was requested to submit the final investigation report vide his letter dt.9.9.2014 (Annexure-10 of the complainant ) the complainant submitted the certified copy of the learned SDJM relating to the present status of the case from which it was revealed that the trial and investigation were in progress and not complete.  The complainant was again requested to submit the final investigation report along with order of the court so that the burglary claim can be processed.  Since there was no response from the complainant the claim was repudiated vide letter dt.6.1.2015 of the O.Ps (Annexure-D).  The O.Ps have also stated that the complainant has agreed to file an affidavit at this belated stage to show genuineness of some money receipts which could not be verified cannot be said to be free from manipulation and by way of afterthought, the possibility of filing of such affidavit to suit the case of the complainant cannot be ruled out.
3. We have gone through the case in details and perused the documents minutely as filed by the complainant and as sell as by the O.Ps.  We have also heard the learned advocates from both the sides at length and we have observed that the complainant had taken an insurance policy from the O.Ps vide policy No.345304/48/2009/2215 dt.31.10.2008.  The said policy was valid from 2.11.2008 to 01.11.2009 and a sum of Rs.8,00,000/- was covered under cash in transit under the said policy.  On 31.10.2009 while the son of the complainant was returning from Nayagarh to Cuttack after collecting money from his debtors, some culprits attacked them and took away the collected money and other items by injuring the complainant.  FIR was lodged at Begunia Police Station on 01.11.2009 and a claim was lodged with the O.Ps for settlement of the loss amounting to Rs.10,32,770/-.  Er. S.C. Senapati was appointed as surveyor who visited the spot on 19.09.2010 and 21.09.2010 from where the money was collected and subsequently reported as looted to examine and investigate the genuineness of the claim.  During the visit to respective shop keepers/credit holder of the insured by the surveyor some of the reported credit holders could not furnish the related cash memo against the collection amount which was actually paid to the insured on that particular date of loss which amounts to Rs.3,95,770/-.   8 nos. of credit holders failed to produce the required money receipt for verification) whereas 13 nos. of credit holders produced the required money receipts for verification which amounts to Rs.6,37,000/-.  The police charge sheet dt.3.3.2010 confirms that a sum of Rs.2,02,00/- was recovered from the culprits.  Since it is essential to find out the exact amount stolen, the surveyors calculated the same at Rs.6,37.000/- against which the money receipts were provided by the shop keepers/credit holders for verification.  A sum of Rs.3,95,770/- was ignored and not calculated in total loss since money receipts relating to this amount were not produced before the surveyor for verification. The reason given by the complainant for non-submission of the money receipts before the surveyor by some of the shop keepers who failed to produce such receipts is that their Accountant was not present does not appear to be a proper reply because such documents are supposed to be kept with the records and not with the Accountant.  Vide annexure-10(of the complainant) the complainant has requested the O.P.1 to settle the claim within 15 days.  Vide the same letter the complainant had also stated that “the police has filed charge sheet and copy of the report has been submitted to you.  The trial of the case in the court of Addl. Sessions Judge,Khurda is continuing.  Certified copy of the order sheet in S.T Case No.25/97124/13/11/10 is enclosed here to”.  It is pertinent to record it here that out of “Rs.3,95,770/- against which the money receipts were not provided to the surveyor for verification, a sum of Rs.35,770/- was said to be collected from one Gagan Bihari Sahoo against which no money receipt was issued but surprisingly the amount was included in total claim which does not appear to be proper. Since a sum of Rs.2,02,000/- was recovered during the police investigation, the net loss was assessed by the surveyor  at Rs.6,37,000/-  less   Rs.2,02,000/- = Rs.4,35,000/-. Vide letter dt.23.4.2014, the complainant was advised by the O.Ps to submit the certified copy of police investigation final report from the concerned SDJM court with order of the court towards acceptance of the investigation report of the police.  Vide letter dt.9.9.2014 the complainant has intimated the O.Ps that the trial case in the court of Addl. Sessions Judge,Khurda is continuing.  The O.Ps vide their letter dt.15.12.2014 again advised the complainant to submit final police investigation report from the concerned SDJM Court with the order of the court towards acceptance of the investigation  report of the police and certified copy of the latest position of the case.  The complainant vide the above letter was also advised to submit the required information’s within 2 weeks from the date of receipt of such letter failing which the claim shall stand repudiated.  Vide letter dt.6.1.2015 the O.Ps repudiated the claim since the complainant failed to produce the required documents. But the Police final report confirms that there was a burglary and monetary loss was caused to the complainant. The surveyor of the O.P Insurance company has also assessed such monetary loss at Rs 4,35,000/-(Net loss).Hence the claim appears to be genuine and cannot be repudiated. Vide Revision Petition No 2582 of 2016 ( Against the order dt 10-05-2016  in Appeal No 274/2015 of the State Commission Kerala) it was decided by Hon’ble  National Commission on 13.4.2017 that “a bonafied Insurance claim cannot be repudiated by Insurance Company”.

Basing on the facts and circumstances as stated above and to meet the ends of justice we have observed that the O.P s are at fault since they have not settle the claim till date.

                                                                ORDER

The O.P shall settle the claim at Rs4,35,000/- ( as calculated by the surveyor Er. S.C.Senapati vide his report dt.30.03.2011) . O.Ps will also pays a sum of Rs30,000/- as compensation towards mental agony and harassment and cost of litigation Rs5,000/-.The above amount shall be pay to the complainant (Rs4,35,000/-+ Rs30,000/-+Rs5,000/-=RS4,70,000/- in total) within a period of 45days from the date receipt of this order failing which the complainant is at liberty to take shelter under this Hon’ble Forum as C.P Act 1986.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 30^th day of May,2017 under the seal and signature of this Forum.

 

                                                                                                                                       (Sri B.N.Tripathy )

                                                                                                                                             Member.

                                                                                                                                        (  Sri D.C.Barik  )

                                                                                                                                               President.

                                                                                                                             

                                                                                                                                           (Smt. Sarmistha Nath) 

                                                                                                                                         Member(W).