FINAL ORDER / JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is an application filed by the complainant U/s 12 of the CP Act, 1986 as amended up to date.
The fact of the case in brief is that the complainant is a company within the meaning of Companies’ Act 1986.
The complainant further stated that the OPs are the Insurance Company within the meaning of Insurance Act and both are running their business within the jurisdiction of this forum.
The complainant further stated that it is the distributor of FMCG Goods of Hindustan Unilever Ltd. and Zydus Wellness Ltd. (formerly Heinz India Pvt. Ltd.) one of the most reputed manufacturers of diverse consumable, household articles etc. as the distributor of the said Hindustan Unilever Ltd. and Zydus Wellness Ltd. (formally Heinz India Pvt. Ltd.), the complainant maintains about 50 marketing executives out of which about 10 heads are under the direct payroll of the complainant and rest 40 are the under the 3rd party of the complainant. namely Smollan India Pvt. Ltd. (SIPL) and Smollan India Filed Force Management Pvt. Ltd. (SIFMPL) that SIPL and SIFPL are the companies indirectly linked with the Hindustan Unilever Ltd. for providing field force on PAN India basis. The role of said marketing executives was to report to the office of the complainant on daily basis, where their attendance are taken and recorded by bio-metric basis as the registered office of the complainant. The primary duties of marketing executives were to take/receive orders from diverse parties listed with the complainant to collect against bills lying unpaid to such various parties.
It is further stated by the complainant that total turn in the year 2018-19 was about Rs.78 crore which were collected by such marketing executive, whereas the daily average cash collection amounts to round Rs.25,00,000/- maximum collected by one marketing executive and one such marketing executive is around Rs.10,00,000/- or more or less.
It is the further case of the complainant on or about 17th Jan, 2018. The complainant submitted a proposal form for money insurance with the OP Insurance Company for money Insurance, from/to the Insured Premises/Bank/Post Office/ to any other specified premises to the tune of Rs.10,00,000/- with a single carrying limit for the period between 17.01.2018 to 16.01.2019. The proposal form for such money insurance for the aforesaid period is annexed herewith as annexure-A.
Accordingly, a money insurance policy being policy No. 0311001218P113357099 was issued by the OPs for the aforesaid period on received the required premium of Rs.75,519/- which covers with infidelity of employees beyond for the 8.00 hrs for a sum insured to the tune of Rs. 10,00,000/- for each single carrying limit which ,inter alia covers dishonesty of employees. The copy of the said money insurance policy issued by the OP is marked herewith as annexure-B.
It is further stated by the complainant in the petition of complaint that in normal course of business Marketing Executives (Sales) Company used to collect daily collection from its retailers and at the end of the day used to deposit the same with the Complainant Company which are normally paid in the safe of the company until deposited with the banker on the next working day. The complainant further stated that it paid the annual premium to the insurance coverage for the year of a sum of Rs. 75,519/- which was duly enclosed by the Insurance Company. (Annexure- C).
It is further stated by the complainant that during continuation of insurance policy some of field staffs namely Parth Sarthi Choudhary and an employee under the third party working marketing executive (Sales) namely Amit Kr. Gupta committed huge criminal conspiracy between each other and committed breath of trust with the company cheated by sale and purchase of stolen article, forgery etc. hereby monetary loss suffered by the company under infidelity of employees for which a sum of Rs. 10,00,000/- as single carrying limit.
It is further alleged that the said employees of the complainant collected a huge amount of money from its retailers to the tune of Rs. 50,00,000/- during the period from April, 2018 to Aug, 2018 but they did not deposit the same in the complainant office. Accordingly, two complaints were lodged on 21.08.2019 and 30.08.2019 through the company’s authorized signatory before the officer-in-charge Barabazar PS. being Barabazar PS case Nos. 211 dated 21.08.2019 and. 217 dated 30.08.2019 U/s 120 B /408/420/467/468/471 of I.P.C (Annexure-E). Thereafter on 21st August 2019, the complainant Company informed the matter to the Insurance company (Annexure-F).
The complainant further stated on or about 21.08.2019 that the complainant lodged a claim for a sum of Rs. 10,00,000/- with the OP Insurance Company in accordance with the money cum infidelity guaranty, covered under the policy (Annexure-F).
But one of the officials of the OPs Company made an email communication dated 26.08.2019 to the complainant stated inter alia that “theft of goods by the employees is not insured peril under money insurance policy” thereby repudiated by the OP on 30th August, 2019, the complainant further made mail communication informed the OP Insurance Company that the official of complaint company committed criminal offence and he collected a sum of Rs 35,00,000/- from the dealer and not deposited a sum with the company and the complainant duly informed the matter to local PS So, the Complainant Company vide mail dated 05.08.2019 again requested the OP to take necessary step in the matter to do the needful. The communication dated 30.08.2019 and 05.09.2019 are annexure-G.
The complainant vide its letter dated 18.11.2019 requested the OP Insurance Company to arrange immediate settlement of an amount for Rs.10,00,000/- in a single carrying limit which is annexed as annexure-H. The OP did not made any reply to such communication. It is the claim of the complainant that one of the terms of insurance coverage being infidelity of employees beyond 48 Hrs to the extent of Rs.10,00,000/-. The complainant is entitled to reimbursement of such sum at the earliest. But the OP Insurance Company violated the terms and conditions of the Insurance Company and repudiated the claim which is nothing but the deficiency in service on the part of the OP and the complainant is entitled to get compensation of Rs.1,00,000/- for harassment, mental pain and agony along with litigation cost of Rs.20,000/-.
The complainant further stated that he is entitled to reimburse of Rs.10,00,000/- from the Insurance Co. for such period as may be directed by this forum together with interest thereon @ 18% p.a. w.e.f. 21.08.2019. Hence, the instant application is filed with the prayer to give direction to the OP Insurance Company to pay Rs.10,00,000/- to the complainant towards single carrying limit with interest @ 18% p.a. on the said sum w.e.f. 21.08.2019 and also prayed for giving direction to the OP Insurance Company to pay compensation of a sum of Rs. 1,00,000/- for harassment, mental pain, and agony along with litigation cost of Rs. 20,000/-.
The OP Insurance Company has contested the claim application by filing a WV denying all the material allegations leveled against it.
Admittedly, the Complainant Company took money Insurance policy in the year 2018 on payment of required premium of Rs.75,519/- commencing on and from 17.01.2018 to 16.01.2019 which was later renewed for the period from 17.01.2019 to 16.12.2020 being policy No. 0311001218P113357099 the risk of money in-transit, money by bargilign, etc. subject with its terms and conditions exclusion, special conditions, policy excess, etc. the copy of said insurance policy is annexed as annexure P-1.
During sub-sitsntnce of policy, the complainant through email intimated the OP on 21.08.2019 that one marketing executive namely Parth Sarthi Choudhrary fraudulently did not deposit a sum of Rs. 20,00,000/- to the Complainant Company which he collected from various retailers and the complainant informed the matter to the local PS Barabazar and also lodged the claim under the money Insurance Policy with the OP.
It is further case of the OP that immediately thereafter the OP having a meticulous look into the copy of FIR lodged with the pertinent Barabazar PS being case No. 211 dated 21.08.2019 and 217 dated 30.08.2019 U/s 120B/408/420/467/468/471 of IPC and the provisions of said policy including the scope and purport thereof. The present OP repudiated the said claim vide its email dated 26.08.2019 stating inter alia that theft/cheating was done by namely Parth Sarthi Choudhary the Marketing Executive of Complainant Company theft of goods by the employee of complainant Company is not insured peril under the subject money Insurance policy. Hence, the claim is not admissible under this policy.
The copy of emails dated 21.08.2019 and 26.08.2019 are marked as annexure P-2 and P-3.
OP Insurance Company further stated that it is apparent from the schedule of subject policy that indefinite cover was taken U/s A infidelity of the employee within 48 hrs and money in strong room basic cover.
It is further case of the OP that money for the payment of wages, salaries and other earning or for petty cash indirect transit from the insured premises to the bank and also from bank to the insured premises by the insured or the authorized employee/employees of the insured until delivered at the premises or other base of disbursement are covered and out of the business Hrs. Such cash shall be kept with secure in locked safe or in locked strong room in the premises. Cheques drawn by the insured to provide such cash are covered in-transit from the insured premises to the bank but infidelity of the employees beyond 48 hrs. referred infidelity of carrying cash by the employee/employees of the insured from the insured premises to the bank and visa-versa is covered. Therefore, it is crystal clear that the money should be in-transit when infidelity takes place and that becomes of the subject matter of the coverage. But the Insurance Company shall not be liable in respect of loss of money in-transit to any person other than insured or an unauthorized employee of insured as per exclusion clause No. 2. but in the instant case, the loss incurred by the complainant company from the facts and that one of its sales man namely Parth Sarthi Choudhary, with in-convince with another van puller cheated the insured by stealing products of their company amounting to Rs. 20,00,000/- for some unspecified period.
So, in this case the money is not in-transit and was not lost due to infidelity of the employee. So, it is not covered under the subject policy.
It is specifically stated by the OP Insurance Company that the Complaint Company has no cause of action to file this case. The petition of complaint is false, frivolous and baseless. Moreover, once the claim was repudiated by showing reasons for such rejection then repetition of the request to reconsider the claim cannot treated as the continuation of the claim pendency. So, the petition of claim is baseless and not maintainable. Thus, the same is liable to be dismissed.
In view of the facts and circumstances, the points of consideration are as follows:-
- Whether the petition of complaint is maintainable in eye of law?
- Whether this forum has got the territorial and pecuniary jurisdiction to try this case?
- Is the complainant Company a consumer?
- Is there any deficiency on the part of the OP Insurance Company?
- Is the complainant entitled to get relief as prayed for?
Decision with reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.
From the fact and circumstances of the case as well as material and evidence on record, it is revealed that the case is well maintainable in eye of law and this forum has got ample jurisdiction to try this case.
On a close scrutiny of the facts and circumstances and evidence on record, it appears that admittedly, the complainant company purchased the subject money insurance policy from the OP Insurance Company in the year 2018 for the period of 17.01.2018 to 16.01.2019 on payment of the required premium of Rs.75,519/-.
The policy in question is issued by the OP is being No. 0311001218P113357099 commencing on 17.01.2018 covering the risk of money in transit, money by barredgarly etc. purchased the subject money insurance to its terms and conditions execlution, special condition policy excess etc.
From the facts and circumstances of this case, it is crystal clear that the complainant company is a consumer within the ambit of CP Act, 1986 and the OP Insurance Company is the service provider.
It is alleged by the complainant Company that during subsistence of policy one marketing executive of the complainant namely Parth Sarthi Choudhary fraudulently did not deposit a huge amount of money collected from its retailer to the tune of Rs. 55,00,000/- during the period of April 2018 to August 2018 but he did not deposit a same in the office of the complainant inconvenience with one Amit Kr. Gupta and committed breach of trust and cheated a sale and purchase of stolen articles, forgery etc. thereby huge monetary loss was suffered by the complainant company under infidelity of employees for which the sum was insured of Rs. 10,00,000/- as single carrying limits. The authorized signatory of the complainant lodged two FIR dated 21.08.2019 and 30.08.2019 respectively at Brabazar PS against criminal conspiracy of its employee Parth Sarthi Choudhary and Amit Kr. Gupta and the case was registered as PS Barabazar Case Nos. 211 dated 21.08.2019 and 217 dated 30.08.2019 U/s 120B/408/420/467/468/471 IPC. Thereafter, on 21.08.2019, the complainant placed a claim for a sum of Rs. 10,00,000/- with the OP in accordance with money-cum-infidelity guaranty, covered under the policy.
Now let us see, whether such loss of money comes under the Money-Cum-Infidelity Guaranty or whether it was covered under the subject policy?
From the facts and circumstances as well as evidence on record, it is revealed that the loss of money of a sum of Rs. 20,00,000/- as claimed by the complainant due to fraudulent act of one of its marketing executives namely Parth Sarthi Choudhary, who collected the money from the retailers of the company and fraudulently did not deposit the same with the company but mis- appropriated it which proved the matter that the money lost by the complainant amounting to Rs. 20,00,000/- was not in-transit. The act of particular person that Parth Sathi Choudhary collected the money from the retailer of the company and mis-appropriated the same which cannot be considered as loss in transit due to infidelity.
So, the money lost by the complainant was not in-transit or direct-transit or any other modes as per terms and conditions rather it can be said that it was fake/ cheated by the person in concern. The complainant further tried to create the story that he immediately after the occurrence informed the OP Insurance Company and placed the claim of the subject policy being policy No. 0311001218P113357099 vide email dated 21.08.2019, claiming a sum of Rs. 10,00,000/- for the OP in accordance with company- infinditly guaranteed cover under the policy (Annexure-A), but it is alleged that the OP Insurance Company repudiated the claim stating inter alia that “theft of goods by the employee is not insured peril under the money insurance policy”. We have carefully gone through the terms and conditions of the policy wherefrom it is revealed that in the Exclusion Clause Nos. 2 and 4, it is clearly mentioned that loss of money interested to any person other than insured is excluded from client.
The OP rightly stated that the theft of goods by the employees is not inured peril under the subject money insurance policy. From the content of the petition of complaint as well as from the evidence adduced by the complainant, we have got it that the complainant admitted that its field staff namely Parth Sarthi Choudhary and marketing executive namely Amit Kr. Gupta committed huge criminal conspiracy between each other and committed breach of trust and also cheated the company by sale and purchase of stolen article, forgery etc. There was huge monetary loss of the company. The complainant tried to establish the fact that the loss suffered by the complainant was under Infidelity of employees for which the sum insured of Rs. 10,00,000/- as single carrying limit is entitled to get from the OP Insurance Company which is claimed is beyond the terms and conditions of the subject policy.
In view of discussion made above, this forum is of view that the loss of money is incurred by the company caused by cheating and stealing committed by the employee and marketing executives on its personal level. There is no transit of money direct or indirect or other valid conditions covered under the subject policy.
The OP Insurance Company rightly repudiated the claim by stating that theft of goods by the employee is not insured peril under the subject money policy and the complaint is not entitled to get the relief as prayed for because the Complainant Company is failed to prove its case by adducing sufficient evidence beyond all reasonable doubt.
Hence, in a nutshell though the Complainant Company is a consumer, it fails to prove its case beyond all reasonable doubt and is not entitled to get the relief as prayed for.
All the points are thus considered and decided accordingly.
The case is properly stamped.
Hence,
Ordered
that case be and the same is dismissed without any cost.
Copy of the judgment be uploaded forthwith on the website of the Commission for perusal.
