DATE OF FILING: 06.03.2013
DATE OF DISPOSAL: 09.01.2018
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the Opposite Parties (in short the O.Ps) and for redressal of his grievances before this Forum.
2. Briefly stated the case of the complainant is that the complainant being an unemployed earns his livelihood out of the profession of Gas dealer at Bhanjanagar. The complainant insured his unit with the O.P.No.1 through the O.P.No.2 under a policy in the name & style “LPG DEALERS PACKAGE POLICY” and as such the complainant is a consumer within the meaning and scope of the Consumer Protection Act, 1986. The complainant obtained a policy for a period of one year in the said name and style vide policy bearing No.034500/46/08/22/00000200 covering the risk, towards different perils expressly and impliedly enumerated therein with effect from 27.09.2008 till midnight of 26.09.2009 and paid a sum of Rs.15,482/- towards premium vide receipt No.34500/81/08/0000003439 and as such the risks covered under the policy was admitted and undisputable undertaken by the O.Ps as per the terms and conditions of the policy in question under the contract of insurance entered into between the complainant and O.P.No.1. During the subsistence of the policy an unfortunate incident on 15.12.2008 at about 9.30 P.M happened while the authorized agent of the complainant was carrying the transacted cash amounting to Rs.1,94,806/- to the house of complainant located within a short distance from the gas agency, all of sudden three unknown culprits suddenly attacked him with pistol and looted/snatched away cash bag and the money. The matter was immediately reported to the Bhanjanagar Police Station and was also informed to the O.P. No.1. Basing on the complaint, the Police lodged an FIR vide P.S. Case No.279/2008 and investigated matter. However, despite all out efforts, police failed to nab the culprits and the investigation was closed with the submission of final report as “facts true but no clue”. It is also stated that as per the terms and conditions of said policy the complainant is assured by the O.P.No.1 in the event of risk towards loss of cash whilst in transit in the custody of authorized employee, a maximum amount of Rs.1,50,000/- is duly covered under the impugned policy and a further sum of Rs.31,000/- is also covered towards loss of ‘money whilst in transit in any one accident’. Under the above circumstances and on account of the unfortunate incident, the complainant herein is entitled to get a assured sum of Rs.1,50,000/- plus another sum of Rs.31,000/- towards loss suffered as was assured under the perils expressly coded under Sl. No.17.IV.2 & 6.IV.1 of policy schedule. It is also alleged that upon receipt of intimation along with documents, the O.P.No.1 slept over the matter for two years and finally on issuance of an Advocate’s notice settled the claim partly on payment of Rs. 31,000/- vide cheque No. 002104 dated 31.03.2010 which was received by the complainant on protest on submission of an indemnity bond. It is further alleged that while making part settlement of the claim, the O.P.No.1 illegally insisted to execute a letter of indemnity relinquishing the complainant’s right over the stolen property which the complainant had to execute with protest. It is quite unfortunate that through as per the terms and conditions of the policy in question the complainant is entitled to Rs.1,50,000/- towards loss of cash whilst in transit in the custody of authorized employee, the O.P. No.1 settled the claim on payment of Rs.31,000/-. The complainant thereafter repeatedly approached the O.P.No.1 to settle his claim as per the terms and conditions of policy in dispute but the O.Ps did not give any heed to his grievances. When the O.Ps gave a deaf ear to his claim, the complainant filed this consumer dispute alleging deficiency in insurance service on the part of the O.Ps and prayed to direct the O.Ps to pay assured sum Rs.1,50,000/- along with 18% per annum from the date of claim and to pay Rs.50,000/- towards compensation for suffering from mental agony, physical paid and financial loss in the best interest of justice.
3. Upon notice the O.P.No.1 appeared through learned counsel Mr. K. Dillip Kumar, Advocate, Berhampur and filed written version on 01.08.2013 and written argument on 17.02.2016. In the written version/argument it is stated that all the allegations made by the complainant in his complaint are not true and correct and the complainant is put to strict proof of the same as required under law. The complaint petition is barred by time and is liable to be dismissed since the cause of action arose on 15.12.2008 and on 31.03.2010 respectively when the O.P.No.1 settled the claim of the complainant as per the claim filed by the complainant and the rest of dates mentioned as para-14 of the complaint petition by the complainant is only for the purpose of limitation to create a case against this O.P.No.1. It is also stated that the allegations made at para-1 of the complaint petition are not to the knowledge of this O.P.No.1. At para-2 is a record of right on documentation and at para-3 as mentioned is an extravaganza made by the complainant since the O.P.No.1 is one of the Govt. of India undertaking sectors. At para-5 of the complaint petition is not totally true and correct rather the complainant approached O.P.No.1 to insure his unit and obtained the mentioned policy as mentioned in his complaint petition. At para-6 of the complaint petition were not to the knowledge of the O.P.No.1, however during the process of claim and on deputation of surveyor by O.P.No.1 the O.P.No.1 came to know the facts of the case. At para-7 of the complaint petition is not totally true and correct and the complainant misunderstood the terms and conditions of policy which enumerates as per the section-IV money insurance the company will indemnify the insured in respect of - (a) Loss by accident or misfortune whilst the insured’s money in the hands of the insured or the insurer’s employees is in transit within a radius of 25 Kms from the insured’s premises as stated in the schedule sl. No.6.IV. I i.e. an amount of Rs.31,000/-. (b) Loss or damage to money by burglar whilst contained in safe, burglar resisting or otherwise in steel cupboards/cash box and /or such other containers under lock and key as stated in the schedule SL. No.8.IV.3 i.e. an amount of Rs.75,000/- (c ) Loss of money whilst in the insured premises other than sale, during business hours, consequent in or following upon assault and /or violence against the insured or any employee of the insured or any thereat thereof, burglary and/or house-breaking provides always that such monies are in the custody of the responsible employee entrusted with the work of handling cash means as to have been stated in the schedule SL. No.7, IV.2 i.e. an amount of Rs.1,50,000/-. It is further averred that at para-9 of the complaint petition is not correct, the O.P.No.1 on receipt of survey report and after getting all required papers processed the claim and as per the terms and conditions of policy assessed the claim to the tune of Rs.31,000/- and settled the same with the complainant which the complainant knowing dully well the terms and conditions of policy accepted the said amount of Rs.31,000/- as full and final settlement towards his claim. At para-10 of the complaint petition is not totally correct rather it is misinterpretation of policy, policy schedule and policy terms and conditions by the complainant and the loss assessed as well as the payment made by the O.P.No.1 to the complainant is in accordance with the terms and conditions of policy. At paras-11 to 14 are vague and are created by the complainant for the purpose of this case and are not sustainable under law. The complainant has no cause at all against this O.P.No.1 and has foisted this false case only to grab the public fund by getting a false relief from this Hon’ble Forum and this case is devoid of any merit and should be dismissed.
4. Upon notice the O.P.No.2 appeared his advocate and filed written version of his case. However, despite several opportunities availed, the O.P. No.2 failed to file his written argument. In the written version it is stated that the facts as stated in the complaint petition are all not true and the complainant is put to strict proof of the same which are not specifically admitted herein. The facts stated in the complaint petition from para-1 to 5 are true to the extent that the complainant is a gas dealer of this locality. He has availed loan facility from the Bank i.e. the O.P.No.2. The rest facts as stated in para-5 of the complaint petition are basing on documentary evidence and as such it needs no answer. In Para 6, 7, 8 and 9 of the complaint petition are to be proved by the complainant beyond reasonable doubt and as such it needs no further answer. In Para 10, 11, 12 and 13 of the complaint petition are clearly depending on documentary evidence as well as legal position. If legally the complainant is entitled to get the claim amount as reflected in the complaint petition then the O.P. No.2 has no objection to it. Whether the act of O.P.No.1 amounts to gross negligence and deficiency in rendering service to the complainant is a mixed question of law and facts? It can be ascertained from the facts of this case. The O.P.No.2 is not aware regarding such deficiency of service. The O.P.No.2 is no way concerned with the facts as alleged by the complainant. Hence addition of O.P.No.2 in this case is not required. Hence the O.P.No.2 prayed to pass appropriate orders in this matter as the Hon’ble Forum deems fit and proper under such circumstances of the case.
5. On the date of final hearing of the consumer dispute the learned counsel for the complainant as well as for the O.P.No.1 are present and learned counsel for O.P.No.2 on repeated calls found absent and failed to file written argument even after availing several opportunities. In fact, the learned counsel for the O.P.No.2 remained absent consecutively from 03.12.2015 to till on the date of final hearing. Hence, the consumer dispute is disposed after hearing the learned counsel for the complainant as well as for O.P.No.1.
6. We have heard the submissions of learned counsel for the complainant as well as for O.P.No.1 and thoughtfully considered the same. We have also gone through the written arguments and materials placed on the case record. During the course of hearing, the learned counsel for the complainant submitted that the present complainant has filed this consumer dispute against O.Ps for deficiency in insurance service for non-settlement of insurance claim pertaining to policy No.034500/46/08/22/00000200. It is submitted that the present complainant had obtained the aforesaid policy on payment of Rs.15,482/- towards annual premium charges received the “LPG DEALERS PACKAGE POLICY” which was valid for the period 27.09.2008 to mid night of 26.09.2009. While the policy was in force unfortunately on 15.12.2008 at about 9.30 P.M. while the authorized agent of the complainant was carrying cash amounting to Rs.1,94,806/- was theft by the miscreants for which a police case was filed bearing P.S. Case No. 279/2008. It is pertinent to mention here that as per the terms and conditions of the said policy an assured sum of Rs.1,50,000/- is insured under the said policy for loss of cash whilst in transit in the custody of authorized employee. Accordingly, the complainant intimated the theft of the cash from the authorized employee to the O.P.No.1 and submitted all required documents along with claim application. However, the O.P. No.1 settled the claim for Rs.31,000/- towards loss of money as per the conditions money whilst in transit in any one accident. The complainant was dissatisfied with the settlement made by the O.Ps and on execution of an indemnity bond received an amount of Rs.31,000/- with protest. Thereafter he made several correspondences and requested the O.P. No.1 to settle his claim but despite requests the O.P.No.1 did not give any heed to his grievances. Finally, the complainant issued an advocate notice on 12.08.2011 for settlement of his insurance claim on payment of Rs.1,50,000/- with interest 18% per annum and prayed to direct the O.Ps to pay Rs.50,000/- as compensation for gross deficiency in service harassment, mental agony and financial loss.
7. On the contrary, the learned counsel for the O.P.No.1 in his arguments contended that the present complaint is barred by limitation and liable to be dismissed since the cause of action arose on 15.12.2008 and on 31.03.2010 when the O.P.No.1 settled the claim of the complainant. It is also contended that this Forum has no jurisdiction to try this case so the complaint is liable to be dismissed. The learned counsel for the O.P.No.1 further argued that the complainant misunderstood the terms and conditions of the policy as enumerated in the policy schedule Sl. No.6, IV.1 of money insurance policy and the company has settled the claim of the complainant on payment of Rs.31,000/- which has already been received by the complainant vide cheque No.002104 dated 31.03.2010. It is further submitted that as per the policy scheduled of ‘LPG Dealers Package Policy’ the complainant is entitled to Rs.31,000/- towards his loss vide schedule SL. No.6 IV.1 i.e. money whilst in transit any one accident. Similarly, as per policy schedule Sl.No.7-IV.2, money lost whilst in transit in the custody of authorized employee the O.P. No.1 has assured to pay sum assured of Rs.1,50,000/- and as per scheduled Sl.No.8, IV.3 in safe cup/board/ cash box the insurer is liable to pay Rs. 75,000/- as per the terms and conditions of the policy. Accordingly, the O.P. No.1 has already paid assured sum of Rs.31,000/- to the complainant as per scheduled Serial No.6-IV.1 of the policy which has already been received by the complainant on 31.03.2010. So the complaint of the complainant has no merit and liable to be dismissed as the O.P.No.1 has already settled the insurance claim of the complainant.
8. We have heard the above submissions and perused the pleadings and verified the documents. On perusal of documents it appears that there is no dispute or doubt that the complainant has received Rs.31,000/- through cheque No.002104 dated 31.03.2010 towards settlement of his claim as per scheduled Sl. No.6 IV.1 of the LPG Dealer Package Policy. As per the said policy schedule, the insurer is liable to pay Rs.31,000/- in case of loss of money whilst in transit in any one accident of the insured. However, as per the submissions of the learned counsel for the complainant the said incident is not coming under schedule Sl. No. 6 IV.1 of the policy schedule rather it comes under Sl. No.7 IV.2 of policy schedule where it has clearly be stated that loss of money whilst in transit in the custody of authorized employee. During the course of hearing the learned counsel for the complainant drew our attention towards the policy terms and conditions mentioned in the policy scheduled and contended that the instant case comes squarely under schedule Sl. No. 7, IV.2 of LPG Dealers Package policy schedule. So the O.Ps are liable to compensate the loss of Rs.1,50,000/- the sum assured under the said policy and the O.P. No.1 is not justified by settling the claim on payment of Rs.31,000/-. It is also admitted that the complainant has received the amount with protest, so the O.P. No.1 is liable to pay the rest amount as prayed. Accordingly, during the course of hearing we examined the policy conditions and on verification of terms and conditions we are convinced that the present incident attracts the policy condition at Sl. No.7 IV.2 of LPG Dealers Package Policy and in our considered view the O.P. No.1 is liable to pay Rs.1,50,000/- to the complainant towards his insurance claim since the case of the complainant squarely comes under the above schedule and the O.Ps are liable to compensate the said loss. It is also a fact which is not disputed that as per the final report of the police investigation, the ‘incident is true but there is no clue’ of theft and it is an admitted fact due to that incident the complainant has sustained the loss as stated above. As per the policy conditions as discussed vide Sl.No.7 IV.2 of schedule of said insurance policy, the O.P.No.1 is liable to compensate the loss as agreed through the contract of insurance. In the present case, as admitted by the complainant, he has already received a sum of Rs.31,000/- on 31.03.2010 partly towards his insurance claim hence the insurer is liable to pay the rest of amount of Rs.1,19,000/- towards the insurance claim of the complainant after deducting a sum of Rs.31,000/- which has already been received by the complainant.
9. In the instant case, the complainant has prayed to direct the O.P. No.1 to pay Rs.50,000/- as compensation along with 18% interest on the sum insured. However, we are not convinced to award such a huge amount as compensation since the complainant has not filed any cogent and convincing documentary evidence to prove the same. But, we are convinced to award Rs.3,000/- towards cost of litigation to meet the legal expenses which will be just and proper as per the fact and circumstances of the case. Similarly, we are also convinced to direct the O.P.No.1 to pay interest at the rate of 6% per annum on the rest insurance claim amount of Rs.1,19,000/- from the date of filing of this dispute till actual payment is made to the complainant. In the light of the foregoing discussions and taking into account to the facts and circumstances of the dispute, the case of the complainant is allowed against O.P.No.1 and dismissed against O.P.No.2 since there is no specific prayer against O.P.No.2 i.e. bank as in this case the insurer is liable to compensate the loss but not the bank so the bank is exempted from their liability.
10. In the result, the case of the complainant is allowed against O.P.No.1 and dismissed against O.P.No.2. The O.P.No.1 is directed to pay Rs.1,19,000/- with 6% interest per annum from the date of filing of this case i.e. from 06.03.2013 till actual payment is made to the complainant along with cost of Rs.3,000/-. The above orders shall be complied by the O.P.No.1 within 45 days of receipt of this order failing which the complainant is at liberty to recover the whole amounts under Section 25/27 of the Consumer Protection Act, 1986. The case of the complainant is disposed of accordingly. However, there is no order as to compensation.
11. The order is pronounced on this day of 9th January 2018 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
