DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE NO. 18/2007 Date of filing of the Case: 16.02.2007 Complainant | Opposite Parties | Bangiya Gramin Vikash Bank Created under the Regional Rural Bank Act. 1976; represented by its Chairman as competent authority Head Office, Rabindra Avenue, P.S.- Englishbazar, P.O. & Dist. - Malda | 1. | United India Insurance Co. Ltd., Head Office, United India House, 24, Whites Road, Madras- 600 014. represented by O.P. No.2. Notice to be served upon O.P. No.2 | 2. | Sr. Divisional Manager, United India Insurance Co. Ltd. Divisional Office, Joy Plaza Shopping Complex, 2nd Floor, N.H.–34, Rathbari, P.S. - Englishbazar, P.O. & Dist. – Malda, Pin – 732 101. | | | | | | | | | | |
Present: | 1. | Shri S.K. Chakraborty, President | 2. | Smt. Sumana Das, Member |
For the Petitioner : Archan Kr. Pramanik, Advocate For the O.P.s : Sankar Prasad Lala, Advocate Order No.11 Dt. 08.06.2007 The facts leading to the filing of this application are set out as hereunder. Complainant – Bank is a subscriber of the United India Insurance Company Ltd. bearing Banker’s Indemnity Policy No. 031400/46/02/00003 and the period of insurance is 01.04.2002 to 31.03. 2003 which has further been renewed up to 30.03.2004. Petitioner’s further case is that an incident of ‘kepmary’ took place in the bank on 23.07.2004 at about 10:40 A.M. situated in Sukanta More Branch, P.S. English Bazar, Distt. – Malda while the said bank was packed with customers. Seeing such position and opportunity some unknown miscreants entered into Cash Counter and escaped with the money amounting to Rs. 2,64,565/- from the drawer of the cashier’s counter which was intimated to the Chairman of the Bank. High officials of the bank rushed to the said branch and Police Authority was informed accordingly who, in their turn promptly reached the spot and made preliminary investigation. F.I.R. was lodged with the English Bazar P.S. on the self-same day of the occurrence. The present petitioner filed claim for insurance coverage for the aforesaid loss of Rs. 2,64,565 /- with the Senior Divisional Manager, United India Insurance Company Ltd., Malda. After proper investigation police submitted FRT No. 172/03 dt. 29.05.2003 and not found any fault against the employees of the Branch. Both the O.P.s have repudiated the claim of the petitioner on flimsy and baseless ground and communicated the same vide Letter No. 03140 / MISC.:CL / 0419 /02 dt. 21.08.2002 of the O.P. No.2 giving rise to the instant proceeding for the reliefs as have been mentioned in the petition of complaint. United India Insurance Company (O.P. No.2 ) contests the case by filing written version which has subsequently been adapted as written version of O.P. No.1 on prayer of ld.advocate. Specific averment made therein is that because of sheer negligence on the part of petitioner’s employees the bank has sustained loss of Rs. 2,64,565/- because the exception clause vide B speaks losses resulting wholly or partially from any negligence Act or ominission of the insured employee is an accepted peril of the Bank’s Indemnity Insurance Policy and on the basis of the Investigation Report, Final Report etc. and after observance of all formalities O.P. No.2 has expressed his inability to satisfy the claim of the petitioner and under such circumstances the prayer is for dismissal of the complaint. On pleadings of both parties, the following points have been emerged for effective disposal of the case. 1) Whether the petitioner is a ‘Consumer’ in terms of Section 2 (1)(d) of the C.P. Act ? 2) Whether the case is barred by limitation ? 2) Whether the service of the O.P.s suffers from any deficiency ? 3) Whether the petitioner is entitled to get any relief as prayed for ? :DECISION WITH REASONS: Point No.1 The word ‘Consumer’ as defined in Sec 2 (1)(d) of the C.P. Act means the person who hires any services for consideration. ‘Service’ means service of any description which is made available to potential users and includes the provisions of the facilities in connection with Insurance as defined in Cl(0) of Sub Sec (1) of Sec.2 of the Act. Having regard to the facts and circumstances of the present case as admitted by the O.P.s that there was one Banker’s Indemnity Insurance Policy between the petitioner and the O.P.s as is evident from Ext.- C read with Ext – B ( Insurance Policy), there can be no dispute that the complainant has hired the services of the United India Insurance Company in connection with Insurance for a consideration which remained in force for a period from 01.04.2002 to 31.03.2003 and hence the present complainant fulfils the condition required in the definition of the term u/s 2 (1)(d) of the Act. Accordingly, the present point is disposed of in the affirmative. Point No. 2 It has been urged on behalf of the O.P.s with reference to Para II of the petition of complaint that the O.P. No.2 has expressed its inability to consider the claim and review its decision vide Letter No. 031400/MISC.-CL/1194/03 dt. 03.03.2004 and the instant case has been filed on 16.02.2007 which, in view of submission of the O.P.s, is a clear bar on the part of the petitioner to institute the present case. But on scrutiny of the record it appears that the O.P.s issued a registered letter with A/D dt. 21.08.2006 addressed to Chairman of the petitioner Bank with reference to the present matter which has automatically extended the period of limitation. Accordingly, it cannot be said that the case is barred by limitation. Point No. 3 The question before us is whether in terms of the policy, the repudiation of the claim of the petitioner by the Insurance Company suffers from deficiency or in other words, the act of the O.P.s is justified. In this connection it seems prudent to reproduce the terms of the policy as defined in the policy. Be it kept in mind that the definition given in the policy is binding on both the parties. The policy is a contract between the parties and both parties are bound by the terms of the contract. Ext C is the Banker’s Indemnity Insurance Policy in which Item No. 3 of proviso (e) deals with the term ‘Reasonable Care ’ which runs as follows:- “ The insured shall take all reasonable steps to safeguard the property. The property insured against any accident, loss or damage and to secure all doors, windows and other openings and all safes, strongroom etc. ” In this connection it also seems necessary to refer to Clause 13 and 13 (b) which runs as follows: “The due observance and fulfillment of the terms, conditions and endorsements of this policy in so far as they relate to any thing to be done or complied with shall be a condition precedent to any liability of the Company to make any payment under the policy.” and Clause 13 (b) runs as follows: “Losses resulting wholly or partially from any negligent act or omission of the insured employee.” shall not be borne by the Company or in other words the Company shall not be liable in respect of exceptions referred to in Clause 13 (b) of Ext – C. Now let us examine the testimony of the witnesses. In this case one Mr. S.K. Kundu, Manager, ( Recovery ) has been examined as PW-1 who has narrated the incident of ‘kepmary’ stating further that the incident took place at about 10-40 A.M. when the Branch was packed with customers as it was pick hour on the part of the petitioner he has further stated that on receipt of a telephone call from an outsider he requested the Cashier, Sudhir Murmu to attend the call and the incident of ‘kepmari’ took place during that period which was noticed by the Cashier himself afterwards which was intimated to the higher authority immediately and to the Police Authority as well. The matter was investigated by S.P. himself alongwith some other police persons and F.I.R. was lodged and on completion of investigation F.R.T was submitted on the basis of which on 31.07.2002 the petitioner submitted claim petition which has been repudiated by the Insurance Company on 21.08.2006 causing financial loss to the bank to a great extent. It appears that in course of cross-examination this PW-1 has admitted, “ I was on my desk when the incident took place. At the time of incident the cashier was attending telephone.” This PW1 has stepped further to state about the procedure to be followed by a Cashier while leaving the Cash Counter which runs as : “ After taking reasonable precaution e.g. closing of the drawer and after locking the door of the Cash Counter the Cashier may leave his Cash Counter. All these formalities were observed by Murmu at the relevant time.” In the instant case Mr. S.K. Murmu the Cashier himself has been examined as PW-2 he stated, “…………………………I closed the drawer and went to the Manager’s table to respond to the call. PW-1 shut the door of my chamber …………….. After making minimum conversation on my return I found the entrance and the drawer open.” It appears that in course of his cross-examination the PW-2 has stated, “There is no such rule that a Cashier may go out of his counter leaving cash unguarded. It is not known to me. But it appears that he has stated in the same breath that he left his counter without closing the drawer.” After making a close scrutiny of the testimony of both PW1 &2 appearing in cross-examination of both of them a fact comes out that a Cashier may leave his Cash Counter after locking the door of the Cash Counter and after closing the drawer and though stated by PW-1 that these formalities were observed by the Cashier the Cashier himself has been constrained to admit at page – 3 that it is not known to him whether a Cashier may go out of his counter leaving cash unguarded. Now the question arises that the word ‘guard’ means all the cash in a case like the present one be kept in a safe manner in the Cash Counter but the Cashier himself has admitted that after closing the drawer he visited the Manager’s table to respond the call and PW-1 shut his chamber. It appears strange to see that shutting of the door of the Cash Counter as told by PW-2, does not find in the testimony of the Manager himself. That apart, the strict vigilance as required to be observed by the Cashier also appears to have been neglected. Proviso –3 of Banker’s Indemnity Insurance Policy ( Ext-3) shows that the insured is required to take all reasonable steps to safeguard the property insured against any accident, loss or damage and to secure all doors, windows and other openings and all safes, strongroom etc. have not been taken by the Cashier at the relevant time with reasonable care. The letter dt. 21.08.2002 sent by Sr. Divisional Manager, addressed to the Chairman of the present bank seems to be important wherein he has observed at Para – 4 (Ext-D), “It is palpably clear that there was sheer negligence and lack of responsibility displayed on the part of the Cashier, who due to his cavalier and callous manner, by not discharging his duty in a prudent manner, by not locking both the Cash Counter drawers as well as by not locking the main entrance door of the Cash Counter No.-1 by lock/ S but instead has very irresponsibly and indifferently and with caring a bit for the security of the cash walked away to attend the telephone call which clearly was not a part of his duty. Also it is surprising that the Branch Manager himself would not tackle this minor telephone call, without disturbing the attention and calling away the Cashier from the Cash Counter, particularly during the busy rush hour the Branch Manager who after bolting the door of the Cash Counter simply walked away from the scene leaving the heavy cash in the Cash Counter exposed to monitory harassment by criminal / outside forces. He could have acted as a prudent man by waiting outside the Cash Counter till return of Shri S. Murmu to the Cash Counter and / or locking the gate of the Cash Counter. In this connection further observation of Sr. Divisional Manger appearing in Ext-D appears to be relevant and this Forum cannot but to quote the same which runs as follows: “Taking advantage of the sheer negligence and lackadaisical manner and conduct of the Insured’s employees, further ingeniously manipulated by the miscreants through use of deviatory tactics, it is possible that the miscreants, or any unknown outsider for that matter, could gain entry inside the Cash Counter, as all the other bank employees were busy during the peak hour, taking advantage of the insecure and unsafe manner in which the Cash Counter was left completely unguarded.” Further the report also speaks as under: “ It was also observed that there was no proper security inside the Insured Bank and even any of the customers could have had an easy access inside the Bank’s working area. Moreover, there was no armed and/or unarmed guard at the entrance door of the Bank of monitor the activities of the customers coming in an leaving the Bank premises.” In addition what has been discussed above the O.P. has filed the investigation report which has been marked Ext-A in this case and the investigator has been examined in this case as Surveyor and examined as OPW-2 stating therein that during survey period this OPW-2 examined employees of the bank and investigated the case considering the procedures and had also categorically denied to be a man of Insurance Company. It is also apparent from his statement that he is a man of independent agency. This witness has also stated about the procedure to be followed to safeguard the Cash Counter in case to come out of the same happens and in that context it is very much clear that PW-2, the Cashier did not take proper steps regarding safeguarding the Cash Counter before leaving the same to attend the telephone call. Thus, given out anxious consideration over the matter and the detail discussion made hereinbefore as well as relevant portion of the detailed report appearing in Ext-D this Forum is of considered opinion that the incident of taking away money from inside the Cash Counter happened which was not locked, nor was safeguarded has taken place due to sheer negligence of the Cashier and this act at the part of the Cashier manifests his callousness and failure to take reasonable steps to safeguard the property as has been envisaged in Item No. 3 of Ext-C and also in a case like the present one the Insurance Company could not be held liable for losses resulting wholly or partially from the negligent act of the insured employee as has been defined in Clause B of Item No. 13 of Ext- C. It is settled law that the terms of policy shall govern the contract between the parties they have to abide by the definition given therein and all those expression appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide opened, they cannot rely on definition given in other enactment. It has been observed by Their Lordships in (1966) 3 SCR 500 that the policy document being a contract it has to be read strictly. Their Lordships have been pleased to observe: “In interpreting documents relating to a contract of insurance, the duty of the Court is to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however, reasonable if the parties have not made it themselves.” Therefore, it is settled law that the terms of contract have to be strictly read and natural meaning to be given no outside aid should be sought unless the meaning is unambiguous. From the above discussion, this Forum is of considered opinion that ‘theft with design’ ( as written in para-3 of the petition of complaint ) cannot but be said to have taken place due to callousness on the part of the Cashier which is a clear violation of para-3 of Page – 2 and 13(b) of Ext-C, and accordingly the Insurance Company is well within their right to repudiate the claim of the insurer Bank. Accordingly, it cannot be said that the service of the Insurance Company suffers from any deficiency which disposes the point in the negative. Point No. 4 In the result, the case fails. Proper fees have been paid. Hence, Ordered that Malda D.F. Case No. 18/2007 stands dismissed on contest against both the O.P. Nos. 1 & 2. However, considering the peculiar circumstances of the case there will be no order as to cost. Let a copy of this order be given to both the parties free of cost. Sd/- Sd/- Sumana Das,08.06.2007 S.K. Chakraborty,08.06.2007 Member President D.C.D.R.F., Malda D.C.D.R.F., Malda | 
