Orissa

Cuttak

CC/23/2016

Mrs. Diptimayee Sethi - Complainant(s)

Versus

The Sr. Branch Manager, The National Insurance Co Ltd - Opp.Party(s)

J Sethi

28 Jan 2017

ORDER

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

                                                                                    C.C. No.23/2016

               

Mrs. Diptimayee Sethi,Proprietor,

Mahalaxmi Filling Station,

At:Mahajanpur,PO:Nischintakoili,

P.S:Salipur,Dist:Cuttack.                                                               … Complainant.

 

                Vrs.

 

1.         The Senior Branch Manager,

The National Insurance Co. Ltd.,

Branch Office,Link Road Square,

A.P.Market Complex,Madhupatna,

Cuttack-753010.

 

2.        The Senior Divisional Manager,

The National Insurance Co. Ltd.,

Divisional Office at:Mangalabag,

Cuttack.                                                                                           … Opp. Parties.

 

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   25.02.2016.

Date of Order: 28.01.2017.

 

For the complainant:               Mr. Jagabandhu Sethi,Adv, & Associates.

For Opp.Parties 1 & 2 :            Mr. Adam Ali Khan,Adv. & Associates.

 

 

Sri Dhruba Charan Barik,President.

                The complainant has filed this complaint alleging deficiency in service against the O.Ps and seeking appropriate relief against them in terms of the prayer in the complaint petition.

1. The facts of the complainant’s case stated in brief are that the complainant  is a dealer of Indian Oil Corporation(IOC in short) having her petrol filling pump named and styled as Mahalaxmi Filling Station situated at Mahajanpur near Nischintakoili under Salipur P.S in the district of Cuttack.  The O.Ps are the branch office and division office of National Insurance Company Ltd.  The cash collected at the filling station of the complainant by way of sale of petrol etc are deposited in the State Bank of India,Kendupatna Branch which is situated at a distance of about 4 Kms from the place of her business.  She has obtained a money in transit policy bearing No.163104/48/13/760000505 in respect of the period from 20.9.13 to 19.9.14 from the O.P.1 with insurance coverage of Rs.7,20,000/-.  She has been paying premium @ Rs.17,880/- to secure the policy.  Annex-1 is the xerox copy of the said policy issued in her favour.
2. On 25.8.14 one Amulya Kumar Senapati, the Manager and one Manoj Kumar Routray the Staff of the said filling station were going on motorcycle to deposit Rs.4.00 lakhs at S.B.I,Kendupatna Branch. That was the amount was collected at the place of business by way of sale of fuel to the public.  On their way at Jhania Chhack three unknown persons came on a pulsar motorcycle, obstructed them and kicked them.  They fell down on the ground and the culprits snatched away the  entire cash on the point of revolver.
3. Amulya Kumar Senapati, the Manager then lodged a written FIR at Salipur P.S but the police submitted final form after due investigation with endorsement that the fact is ‘true but no clue’.

Intimation was also given to the O.Ps about the occurrence and a surveyor was also deputed to the spot for investigation.  Ultimately, Engineer Chita Ranjan Das, the surveyor submitted his survey report No.CRT027/14 dt.24.3.15 to the O.Ps assessing the loss at Rs.2,50,000/- payable to the complainant U/S-1(a) of the policy. It is stated that the O.Ps instead of paying Rs.2,50,000/- to her has paid only Rs.1.00 lakh towards full and final settlement of her claim in violation of the terms and conditions of the policy.  As the complainant was in dire need of money, she put her signature on the discharge voucher under protest and intimated this fact to the O.Ps by her letter dt.14.9.14 wherein the O.Ps were requested to pay the balance amount of Rs.1,50,000/- to her which has been arbitrarily with held by them vide their letter dt.15.9.15.  Annexure-2 is the xerox copy of the letter of the complainant dt.14.9.15.  Annexure-3 is the xerox copy of the letter of the O.Ps dt.15.9.15.  Annexure-4 series are the copies of police papers about the investigation and its result made by the police and submitted to the competent court.

4. It is clearly stated that the O.Ps have not considered the request of the complainant in making payment of the balance amount and as such they are deficient in rendering service to her.  They are also following unfair trade practice by not adhering to the terms and conditions of the policy issued by them.
5. It is therefore prayed that the O.Ps may be directed to pay remaining sum of Rs.1,50,000/- along with 9% interest to her from 8.9.15 till the date of realization, to pay a sum of Rs.50,000/- towards compensation and Rs.5000/- towards litigation expenses in the interest of justice.
6. Both the O.Ps have jointly filed written version of their case denying the material averments of the complaint.  It is stated that the complaint petition  filed in this case is not maintainable both in fact and law and there is absolutely no deficiency in service on the part of the O.Ps nor have they adopted any unfair trade practice as alleged in the complaint.  It is categorically stated that the claim of the complainant squarely falls U/S-1(c) as claimed by the complainant and accordingly Rs.1.00 lakh has been paid to her and she has already signed on the discharge voucher by acknowledging receipt of the amount towards full and final settlement of her claim.  Annex-A is the copy of the insurance policy issued in favour of the complainant.  Copy of the FIR of the complaint’s case lodged with the Salipur Police has been filed and marked as Annexure-B.
7. It is important to leave a mention here that the O.Ps had deputed a surveyor Er. Chitta Ranjan Das to the spot for investigation of this case and ultimately he submitted his survey repot assessing the loss at Rs.2,50,000/- under wrong impression Under Sec-1(a) of the policy condition.  When the surveyor was again requested to look into the matter and submit a fresh report, the said surveyor admitted his mistake in assessment of the loss and submitted his addendum investigation report to the O.Ps on 20.8.15 and the loss of the complainant in that case was assessed at Rs.1.00 lakh not U/S-1(a) but U/S-1(c) of the condition of the policy and accordingly the payment was made to indemnify the complainant.  Annexure-C is the copy of the said addendum report of the surveyor filed in this case.
8. In view of the above, it is prayed by the O.Ps that the complaint of the complainant is not sustainable under Law and accordingly it is prayed the same may be dismissed with cost.
9. We have heard the learned advocates from both the sides and also gone through the documents filed by the respective parties.
10. The bone of contention between the parties is with regard to applicability of Sec-1(a) or 1(c) of the terms and conditions of the policy to the present case.  The maximum limit of loss is Rs.2,50,000/- U/S-1(a) and Rs.1.00 lakh U/S-1(c) of the conditions of the policy.  For better appreciation, both the sections are quoted here under:

Section-IA “Money for the payment of wages, salaries and other earning or for petty cash in direct transit from the bank to the insured’s premises from the time the cash is received at the bank by the insured or the authorized employee/s of the insured until delivered at the premises or other place of disbursement and whilst there until paid out provided that out of business hours such cash shall be secured in locked safe or locked strong room on the premises.  Cheques drawn by the insured to provide for such cash are covered in transit from the premises to the bank.”

Sec-1C “ Money(other than described in IA and IB above) collected by and in the personal custody of the insured or the authorized employee/s of the insured whilst in transit to the premises or bank within a period not exceeding 48 hours from the time of collection and vice versa”.

11. The learned counsel for the complainant has advanced his argument stating that the claim of the complainant will squarely fall U/S-1(a) of the policy in as much as it is stated in the said section “ cheques drawn by the insured to provide for such cash and covered in transit from the premises of the place of her business to the bank”.  It is further stated that the money drawn through cheques by the complainant is also covered under this policy in view of Sec-1(a) and as such the complainant is entitled to be indemnified for maximum loss of Rs.2,50,000/-.  The learned advocate for the O.Ps has fairly argued that the claim of the complainant clearly comes U/S-1(c) of the terms and conditions of the said policy where the maximum limit of loss has been fixed at Rs.1.00 lakh.
12. We have gone through the policy conditions submitted to us.  Nowhere in the complaint petition it is stated that the amount drawn through cheque were in the custody of the employees of the said filling station which was in transit to the S.B.I,Kendupatna branch on the date of occurrence.  Rather it is crystal clear from the complaint that the sale proceeds of oil collected at the filling station were taken by the staffs for deposit in the bank at Kendupatna.  The acknowledgement of the learned counsel for the complainant is not found inconformity with the averment in the complaint and to that extent it is materially contradicted.  On the other hand Sec-1© clearly envisages that the money (other than the described a & b above) collected by the authorized employees of the complainant were in transit from the place of business to the bank which was snatched away by the culprits at Janhia Chhack.  The learned advocate for the O.Ps has also placed reliance on a decision reported in 2013(2) CPR 315(S.C) ( Vikram Greentech (I) Ltd. and another Vrs. New India Assurance Co. Ltd.).  It has been held by his lordship that since upon issuance of  insurance policy, insurer undertakes to indemnify loss suffered by the insured on account of risks covered by insurance policy, its terms have to be strictly construed to determine the extent of liability of insurer.  It has further been held that endeavor of court must always be to interpret the words in which contract is expressed by the parties.  While construing the terms of policy court is not expected to venture into extra liberalism that may result in re-writing contract or substituting terms which were not intended by the parties.  It has also been held that the insured cannot claim anything more than what is covered by the insurance policy.  Surveyor’s report cannot be taken aid of nor can it furnish basis for construction of the policy.  Such outside aid for construction of insurance policy is impermissible.  Keeping in view the ratio of the aforesaid decision it is crystal clear that the claim of the complainant squarely falls U/S-1( C) of the conditions of the insurance policy and accordingly she has been indemnified and has received Rs.1.00 lakh from the O.Ps towards full and final settlement of her claim.  In absence of anything to the contrary, it cannot be said that the O.Ps were found rendering deficient service to the complainant or following unfair trade practice.  Hence ordered;

ORDER

The prayer of the complainant is found devoid of merit and accordingly stands dismissed on contest.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 28^th day of January, 2017 under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                       President.

                                                                                                                 (Sri B.N.Tripathy )

                                                                                                                      Member.

                                                                                                              (Smt. Sarmistha Nath)

                    Member(W)