JUDGEMENT

          Complainant by filing this complaint has submitted that complainant is a company carrying Gold and Silver business having its Registered Office at 57, Monohar Das Street, Sonapatty, Kolkata – 700007 and complainant company insured for a total sum of Rs.1,75,00,000/- out of which a sum of Rs.1,00,00,000/- for risks concerned under total amount of money in transit further limiting to Rs.25 lacs per transit under Money Insurance Policy being No.0303004808070001009 for a period of 22.05.2009 to 21.05.2010 issued by United India Insurance Co. Ltd.

          Fact remains that on 27.01.2010, Mr Udesh Singh, an employee of the company defalcated cash amounting to Rs.20,00,000/- which was handed over to U.K. Singh at about 2:45 P.M. by the company to deposit the money in Axis Bank accompanied with another employee Mr Shyam Sundar Agarwal.  Mr Udesh Singh taking benefit of the rush on the road parted from the company of his colleague, Mr Shyam Sundar Agarwal and decamped with the cash.  Mr S.S. Agarwal reported back to office and narrated the incident to the Director of the company and when all efforts to trace Sri Udesh Singh but they failed and a written complaint was lodged at about 8:15 PM with the police station on the same day and on the strength o written complaint a criminal case was registered against the accused Umesh Singh but finally the case was concluded with the observation that the accused Umesh Singh still absconding and no money could be recovered.

          Thereafter complainant reported the incident to the insurance company on the very next day of occurrence i.e. on 28.01.2010 and on the strength of claim intimation Insurance Company deputed M/s Bararia and Associates to assess the loss who issued their report on 28.05.2010 to the insurance company after assessing the loss at Rs.19,97,400/-.  Thereafter complainant submitted Final Police Report, the only document pending for settlement of claim, vide their letter dated 09.07.2011 which was received by the op no.1 on 11.07.2011.

          Despite submission of all documents including report in final form and other papers, complainant received a loss voucher after about one year of long persuasion from Rs.14,97,000/- was sent with a letter but no detail calculation of the assessed loss has been sent.  Although it was a bounden duty of the op no.1 to furnish them with the detail calculation of the loss, but op no.1 denied to furnish with the same.  Op no.1 submitted that loss had been approved by higher authority and it has been done correctly and looking into delay factor and compelling situation complainant finally forwarded the loss voucher with Bank details on 11.07.2012 and the amount of Rs.14,97,000/- was remitted to the account of the complainant on 16.07.2012.

          Subsequently on 28.04.2012 op no.1 informed the complainant with the detail calculation of claim when it was observed that 25% of the assessed loss was deducted for breach of reasonable care as per policy condition and the Reasonable Care Clause appears in the policy condition as general condition, not as special.  But even then complainant made demand and prayed for releasing the balance amount and subsequently on the basis of Survey report dated 28.05.2010 claim note sheet was prepared by op no.1 on 19.03.2012 recommending to their higher authority op no. 2 for an amount of Rs.17,83,490/-  after deducting 10% penalty as recommended by the Surveyor and reinstatement premium for remaining 115 days for Rs. 13,910/- together with unpaid salary of U. K. Singh.  Incidentally it may be noted in his report on 28.05.2010 the surveyor did not recommend to deduct any penalty and did not mention any percentage of deduction as mentioned in the note sheet.

          Practically op took a plea that U. K. Singh was a new employee and S.S. Agarwal was a senior citizen for whose negligence, callousness or unreasonable care on the part of the complainant the incident took place and op’s plea is that no reasonable care was taken for safety of the money is completely baseless in view of the fact they were the employees and they were acting for that purpose and so to deduct of Rs.5,00,000/- by the op arbitrary should be released and prayed for relief.

          On the other hand op Insurance Company by filing written statement submitted that the entire claim is not maintainable and there was no deficiency or negligence on the part of the op.  Fact remains that Reasonable Care and Safety for transmitting that huge amount was not taken by the op and moreover no security arrangement has been made for transmitting such huge amount and moreover surveyor assessed the loss subject to riders as stated earlier and therefore the assessed loss cannot be approved by the op without considering the other factors including violations of general condition under the subject policy and thus the relevancy of the said survey report is to be segregated from its being absolute. 

          Moreover complainant has accepted the settled claim without any objection.  So, there is no question of negligence and deficiency on the part of the op.  Further it was submitted that complainant handed over the money to an employee who was only working for only two months prior to the date of incident and no authentic staff was deputed with security only purpose for transmitting the same with the bank.

          Further it is submitted that as because the settlement has been made and complainant voluntarily without any coercion has accepted the settled sum, the plea for deficiency of service or unfair trade practice does not arise and in the circumstances, op has prayed for dismissal of this case.

                                                        Decision with reasons

          On careful consideration of the entire materials and also considering the fact and circumstances of this case including the materials on record, it is clear that complainant already received a sum of Rs.14,97,400/- as settled amount on 13.07.2012.  it is equally true as per clause of the agreement Reasonable Care must be taken and all reasonable step should be taken to safeguard the property insured against accident, loss or damage and no doubt it is a mandatory clause and fact remains any Court or Forum cannot go beyond the terms and conditions of the policy and as per mandatory provisions of law both the parties shall be guided by the terms and conditions of the policy and there is no scope on the part of the Forum to give any exception and relaxation on the ground of equity.  But in view of the judgement reported in 2013(4) CPR 165 NC we are of view that the parties are strictly governed by policy condition and no exception or relaxation can be made on the ground of equity.  When that is the fact, then it is clear that the clause Reasonable Care must be applied in this case.  So we shall have to consider whether Reasonable Care or safeguard was given during transmission of such a huge amount of Rs.20 lakhs to the bank by the complainant.  In this regard we have gone through the rulings and the fact reasons that complainant handed over the said Rs.20 lakhs to a person anyhow he is an employee but he was recently appointed and his service tenure was only for two months and he was neither a security nor a cashier, nor an accountant and in fact he is fourth grade employee and no special authority was given by the complainant that he was appointed only for the purpose and carrying the cash as security.

          So, it is clear that Rs.20 lakhs were transmitted by handing over to a newly appointed person in respect of whom complainant has no previous knowledge or history whereas about or his past characteristics.  Another factor is that it is a big company of selling and purchasing of gold and silver and in all such companies they have their securities and it is mandatory provision of law huge amount of money if it is transmitted from office to bank, there must be some security.  But in the present case there was no security deputed by the complainant for transmitting the same.  It was handed over to a fresh person of fourth grade staff for transmitting and who is fresh appointed person, that means the complainant did not take any reasonable step to safeguard the property and practically chance of theft on the road was there, because there was no security and truth is that this fellow fresh appointee of the complainant defalcated because taking such chance he fled away at the time of transmitting the huge money and police failed to search out him along with money.

          So, apparently it is proved that reasonable care has not been taken, no security was deputed for transmitting the such bulk amount to the bank but casually it was sent through one newly appointed fourth grade staff who has no liability and responsibility and complainant has also failed to prove for what reason complainant did not depute their security when in their companies their security are there and considering that fact we are convinced to hold that for not taking reasonable step to safeguard the property insured against such loss rightly op deducted such amount as penalty.

          Most interesting factor is that a big company sent Rs.20 lakhs without any guard, without any security, then it is clear that insured is at a mood that their money may be stolen, may be defalcated and for that they have their no headache because insurance is there and it has become a practice of private company not to take any reasonable care or safety in respect of and to safeguard the property insured during transit and it has been a common practice.  So we are convinced that the op authority rightly deducted Rs.5 lakhs and the amount as paid by the op is no doubt sufficient and fact remains complainant has failed to prove by any means the deficiency and negligence on the part of the op by any means and in our view when deficiency and negligence on the part of the op is not proved then how the complainant can claim that they have adopted an unfair trade practice.

          After thorough consideration of the entire materials on record we have gathered that complainant has miserably failed to prove the unfair practice as adopted by the op in this case.  But anyhow in this case Ld. Lawyer for the complainant submitted two rulings reported in FA No.219/1995 of National Commission (Singareddy Ramana Murty – Vs – M/s National Insurance Co. Ltd. & Ors.) and another ruling i.e. R.P. 870/2001 dated 10.05.2001 of the National Commission (United India Insurance Co. Ltd. – Vs – K. Gangadharan) and tried to convince that “despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like.  If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, misrepresentation, undue influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief”.

          After considering those rulings and the present fact and circumstances we have gathered that op never misrepresented about final settlement matter, op only sent discharge voucher and settlement amount with a copy whether complainant is willing to accept it or not and if complainant accepts in that case complainant was directed to send the detail of his bank account and it was sent by letter and if complainant had no desire to accept it in that case complainant had his option not to accept it and to report that he is not willing to accept such settlement amount.

          So, he may return the said discharge voucher along with his objection note but it has not been done.  But in view of that complainant accepted the settlement amount signed in the settlement amount voucher supplied his bank account transmitting the amount as it was completely complainant’s unilateral decision and in this regard op did not create any pressure upon the complainant.  Because only they sent a letter that is offer letter of settlement and option in the hand of complainant to refuse or accept it and when complainant after realizing the entire matter at his own accord signed in the settlement voucher and supplied his bank account where the said amount shall be transmitted.  Then it is clear that it was complainant’s own action and for that op did not create any pressure or no misrepresentation has been made by the op and op also sent the details of the fact.

          So, considering the present fact and circumstances and also ruling we are confirmed that those two rulings are not applicable in the present case because in the present case complainant has failed to prove the deficiency and negligence on the part of the op or any sort of other act of the op in this regard about settlement, on the contrary failure of the complainant to take proper step and security at the time of transmitting to the bank is well proved that means complainant’s failure to take reasonable care in respect of the insured amount is completely proved and for which rightly op deducted Rs.5,00,000/- out of total Rs.20,00,000/- and that decision was given not by the company but the company’s higher authority. 

          So, in our view that the present complaint is not at all proved and the deficiency and negligence on the part of the op is not proved.  On the other hand deficiency and negligence on the part of the complainant is well proved for not taking reasonable care to give proper safety and security of the money or property at the time of transmission of the same from the office to bank.

          In the result the complaint fails.

          Hence, it is

                                                               ORDERED

          That the complaint be and the same is dismissed on contest with a cost of Rs. 5,000/- against the ops.