Per Mr.Justice S.B.Mhase, Hon’ble President

This appeal takes an exception to an order passed by the District Consumer Disputes Redressal Forum, Thane in consumer complaint no.392/2008 decided on 07/3/2009.  This appeal has been filed by the original opponent/United India Insurance Co. Divisional office, Star Trade Centre, Sodawala Lane, Borivali(W).  Respondent is an original complainant.  We have perused the order in the original complaint.

In the original complaint United India Insurance Co. Ltd. is a party and since the Money Insurance Policy was taken by the complainant from the Dahanu branch of the said Insurance company, opponent no.1 is shown as said Dahanu branch.  Opponent no.2 is a branch located at Shelar building, second floor, above Canara bank, Naupada, Thane(W).  Thus, what is important is that the branch from which the insurance policy was taken is a party to the said complaint and even though complaint has been allowed, the said Dahanu branch has not challenged the order passed by the District Consumer Disputes Redressal Forum.

Original O.P.no.2 namely another branch located at Naupada, Thane has also not challenged the order. On the contrary, divisional office of United India Insurance Co. located at Borivali has filed an appeal.  In fact, parties to the proceedings are supposed to file an appeal and other branches are not supposed to file the appeal.  At the most, we can understand that Head office of the Insurance company could have filed the appeal but such is not the case in the present case and, therefore, initially filing of the appeal by Borivali Divisional office is itself incompetent.  Let the fact as it is.  In this appeal Ld.counsel for the appellant was present on 05/3/2010 & 21/4/2010.  It is interesting to note that when the first time appeal was listed for admission even at that time advocate was not present.

It appears from the order that the clerk of the appellant was heard and notice before admission was issued and stay was granted. Thereafter, on 05/3/2010, it was noticed that even though the notice was prepared, compilation was not submitted and unless the compilation is tendered, the office cannot send the notice.  Therefore, after obtaining stay order from this Commission, every attempt to protract the appeal and thereby to avoid service has been made by the appellant and, therefore, cost of `1000/- was imposed and appellant was directed to take further steps.  This cost has not been deposited and/or paid by the appellant to the respondent.  Thereafter, on 21/4/2010, respondent has filed vakalatnama and the matter was adjourned to 05/7/2010.  On 05/7/2010 it was adjourned to 22/9/2010 and on 22/9/2010 it was adjourned today i.e. on 02/12/2010.  Ld.counsel for the appellant and appellants are absent from 05/7/2010 till today. Thus, appeal could not be proceeded because notice in the compilation was not served and, thereafter, appeal could not be proceeded for admission because counsel for the appellant was absent.  Under these circumstances, we are constrained to consider the matter for admission. Ld.counsel for the respondent is present.  All these dates which have been stated above are already been notified on internet.  Therefore, even if appellants and their advocate are absent on these dates, they could have obtained these dates from internet board.  It is therefore deemed to be known to the appellants and their advocate.  Not only that the case has been also uploaded in the Confonet from 05/7/2010 and, therefore, information on case status is also available on internet.  This is clarified for this purpose that the appellants are aware of the dates which are fixed by the State Commission and the said information is equally available on internet.  Therefore, it was obligation for the appellants and their counsel to remain present for admission today.  Since in the above referred circumstances, they are absent, we are proceeding to hear the matter in their absence.

By impugned order it has been directed by the District Consumer Disputes Redressal Forum that the amount of `45,000/- be paid with interest @ 9% p.a. from 31/12/2007 to the respondent.  Appellant is further directed to pay an amount of `4,000/- towards mental agony and `1,000/- towards cost, etc.  It is to be noted at this stage that in the District Consumer Disputes Redressal Forum also the notices were served on both the original opponents and in spite of service, they have preferred to remain absent and failed to file their reply version as provided under section 13(1)(a) of Consumer Protection Act, 1986.  No explanation is coming forward as to why in spite of service appellant and/or original opponents’ branch offices have not participated in the proceeding.  However, this is not new for the State Commission.  In number of matters we notice that the banks and insurance companies always remain absent before the District Consumer Disputes Redressal Forum for no valid reasons so that complaint may be decided in their absence to invite remand from the Commission after filing appeal.  This they did strategically because it helps them to protract payment of lawful claim of consumer and to harass consumer inviting second round of litigation afresh.  These corporate body officers have nothing to pay from their pocket but consumer has to bear expenses out of his pocket.  So also time and energy of consumer is lost.  Thus consumer is not only harassed but equally penalized.  There are no grounds made by the appellants in the appeal memo for their remaining absent before the District Consumer Disputes Redressal Forum, thereby constituting sufficient grounds for remaining absent.  Apart from that that fact is not in dispute that the respondent has taken a policy which is known as ‘Money Insurance Policy’.  Said policy was valid for a period 07/08/2007 to 06/08/2008.  Under the said policy money in transit either with the insurer or with his employee was insured and, accordingly, policy clause contained in the policy at page no.7 under the head “Money Insurance policy”.  It is a case of the respondent that on 31/12/2007 amount of `45,000/- and `72,000/- was given to their employee one Mr.Bhiva so as to deposit in the bank.  While he was proceeding towards the bank, the unknown person came across said Bhiva and told him that there is some dirt on his shirt and he should clean it and he gave water bottle to him in order to clean the dirt.  He kept his bag on wire fencing and while he was cleaning his dress a packet of `45,000/- was taken by some unknown person and thereby loss was caused while money was in transit.  Therefore, claim was made with the insurance company.  Insurance company has repudiated the claim.  It has been repudiated on the ground that when the loss was caused, amount was not in possession of authorized person.

District Consumer Disputes Redressal Forum has considered this aspect and has directed to pay an amount of `45,000/-.  The clause in the insurance policy specifically stated as,

(a) “Money in transit, by the Insured or Insured’s authorized employee(s), occasioned by Robbery, Theft or any other fortuitous cause as detailed in Section I.

(b) Money by burglary robbery or hold up whilst in the insured’s premises as detailed in Section II in a Safe or Strong room provided always that the limit of the Company’s liability for any one loss shall in no case exceed the amount specified against the respective section in the said Schedule.”

On reading these sections it will be found that monies which are in transit or with insured authorized person were secured and the section I clause (i), (ii) & (iii) validly cover the case of respondent.

Therefore, ground raised by the appellant that at the time of theft money was not in the custody of the appellant is not a proper ground for the repudiation of the claim.  The contention that at the time of theft the employee had kept the amount with bag on wire fencing and, thus, parted with the possession of the amount is not correct.  Amount was in his custody and since he was cleaning his dress he has kept it there.  While the amount was in his custody, theft has taken place and, therefore, insurance clause covers the said liability and the insurance company is liable.  Thus, the claim has been validly considered and decided by the District Consumer Disputes Redressal Forum.

One of the grounds raised by the appellant is in respect of limitation and time barred claim.  However, we find that incidence has taken place on 31/12/2007. Two years period will be over by 30/12/2009.  As against repudiation has taken place on 18/3/2008 and the claim has been filed on 15/9/2008.  Therefore, from the date of repudiation also claim is within limitation and from the date of incidence also claim is within limitation and the ground raised in the appeal memo carries no weightage.  Appeal is without substance.  Amount which has been deposited by the appellant at the time of filing appeal shall be paid to the respondent after the period for approaching National Commission is over.  On receipt of this amount, respondent can file proceeding for execution in respect of rest of the amount.

ORDER

Appeal stands dismissed.

Copies of the order be furnished to the parties.