BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.334 of 2017
Date of Instt. 13.09.2017
Date of Decision: 21.01.2019
M/s Sankalp Enterprises, SCO-4, 2nd Floor, PPR Mall, Mithapur Road, Jalandhar through its Partner Smt. Anuradha W/o Sh. Arun Kumar.
..........Complainant
Versus
1. United India Insurance Company Ltd., Divisional Office No.2, Sayal House, Lajpat Nagar Market, Jalandhar through its Divisional Manager/Authorized Signatory.
2. United India Insurance Company Ltd., Registered and Head Office, 24, Whites Road, Chennai-600014, through its Chairman.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Jyotsna (Member)
Present: Dr. Balwinder Singh, Adv Counsel for the Complainant.
Sh. R. K. Sharma, Adv Counsel for the OPs No.1 and 2.
Order
Karnail Singh (President)
1. Brief facts of the complaint are that the complainant's firm is a partnership firm, which is distributor of M/s Pepsico India Holding (P) Ltd., and having its office at 2nd Floor, PPR Mall, Mithapur Road, Jalandhar. The said complaint is being filed by Smt. Anuradha, Partner of the complainant's firm, who is well conversant with the facts of the present case. The OP No.1 is the Division Office, where from the complainant had purchased the Insurance Policy and OP No.2 is its Head Office.
2. That complainant purchased Fidelity Individual Named Policy from the OP No.1, vide policy No.201300/46/14/12/00000049 (727121) w.e.f. 18.04.2014 to 17.04.2015, having insured sum of Rs.5,00,000/- each for its three sales person Mr. Amit Verma, Mr. Nikhil and Mr. Nitin Kumar and the same was renewed in the year 2015-16 and then 2016-17. One of the sales representative of the complainant's firm, namely Mr. Nikhil (Vishu), who was covered under the said policy committed a fraud, which came into the notice of complainant in the mid of March 2015. Accordingly, a police complaint was filed against Nikhil, before the Commissioner of Police, Jalandhar and accordingly, after making enquiry an FIR was registered against Nikhil, FIR No.161 dated 25.10.2015 under Section 406 I.P.C., P.S. Division No.7, Jalandhar. After the registration of FIR against its sales representative, namely Nikhil, the complainant lodged insurance claim to the tune of Rs.3,05,292/- with the OPs on 20.01.2016 and the same was duly received by the then D. M. Mr. Gurmeet Singh. Accordingly, the OPs deputed a Surveyor-cum-Chartered Accountant Mr. Rajesh Gupta on 22.01.2016. Mr. Rajesh Gupta submitted his final Survey Report on 25.03.2016, whereby approved the claim of Rs.1,65,292/- after deducting Rs.1,40,000/- from the total claim amount i.e. Rs.3,05,292/- as the said amount of Rs.1,40,000/- was recovered by the Police from Nikhil. Thereafter, the OPs took legal opinion of Mr. Raman Kumar Sharma, Adv who vide his legal opinion dated 06.10.2016, also endorsed the survey report dated 25.03.2016 of Mr. Rajesh Gupta and recommended that the claim to the tune of Rs.1,65,292/- be given to the complainant.
3. That even after the submission of Surveyor Report and Legal Opinion, the OPs did not pay the claim amount to the complainant and dilly delayed the matter on one pretext or other. The complainant wrote a number of emails to the OPs for the release of Insurance Claim, but of no use. To the utter surprise of the complainant, the OPs deputed M/s Swift Investigation Agency, as an Investigator. It is pertinent to mention here that the said M/s Swift Investigation Agency, is owned by Mr. Gurmeet Singh, with whom the Insurance Claim was lodged by the complainant, being the then D. M. of OP No.1. Thereafter, the said M/s Swift Investigation Agency, submitted a biased report dated 03.03.2017, whereby the claim of the complainant has been rejected arbitrarily and unlawfully. It is pertinent to mention here that OPs also procured the Supplementary Legal Opinion of Mr. Raman Kumar Sharma, Adv, who negated his previous Legal Report dated 06.10.2016 and recommended for repudiating the claim of complainant and accordingly, the claim of the complainant was rejected by the OPs arbitrarily, vide repudiation letter dated 07.03.2017. In such a way, the OPs have committed unfair trade practices and are guilty of rendering negligent and deficient services to the consumer and thus, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to release the Insurance Claim amount of Rs.1,65,292/- to the complainant and further OPs be directed to pay damages to the tune of Rs.2,00,000/- for the mental tension, harassment and agony suffered by the complainant and further OPs be directed to pay Rs.30,000/- as litigation expenses.
4. Notice of the complaint was given to the OPs, who appeared through its counsel and filed joint reply and contested the complaint by taking preliminary objections that the complainant has concealed the material facts from this Forum and has not come to the Forum with clean hands and therefore, complaint is liable to be dismissed. It is further averred that despite having knowledge of the dishonesty of the employee namely Nikhil (Vishu), the complainant did not take any immediate steps to prevent further losses rather kept on entrusting the money to the said employee. It is wrong that the complainant firm came to know for the first time about the fraud committed by its employee namely Nikhil (Vishu) in the month of March 2015. The complainant firm was aware of the previous reoccurring acts/conduct of Nikhil (Vishu) of non deposit of the funds of the complainant. Even the FIR finds mentioned that during investigation, the statement of Nikhil @ Vishu was recorded by police, wherein he stated that in the year 2012, his mother fell ill and he used Rs.2,00,000/- of his employers for the treatment of her mother and in year 2013, when there was some disputes amongst the employers, on accounting his employers found Rs.4,00,000/- due from him to the employers on which he told to the employers that only Rs.2,00,000/- had been taken from the shopkeepers and remaining two lacs were got recovered and when the employers demanded more amount, he deposited Rs.60,000/- in the bank account of the employers and kept on repaying the remaining amount from his salary and out of Rs.2,00,000/-, he had paid Rs.1,55,000/- to the employers and only Rs.45,000/- is payable. It is evident that the complaint was aware of the credentials of its employee Nikhil @ Vishu and despite that the complainant did not take any immediate steps to prevent further loss by terminating him rather kept on availing the services of Nikhil @ Vishu. FIR also finds the mention that Vishu had given in writing to the complainant firm that he had used Four Lacs and shall return the same and the said writing was annexed by and on behalf of the complainant with the complaint to the police, but the said writing of Vishu has been intentionally not produced before the Forum to conceal the actual facts and reoccurring acts of fraud of Vishu even prior to the insurance policy and the complainant was fully aware of such acts of Vishu. There is clear breach of policy terms and conditions and the claim of the complainant was not payable as such, the claim of the complainant was repudiated, vide letter dated 09.03.2017 as per terms and conditions of the insurance policy on the ground that the intimation of loss was given to the insurance company on 20.01.2016 after a period of more than nine months after expiry of the insurance policy/discovery of fraud, which as per terms and conditions of the insurance policy was required to be given forthwith a writing to the policy issuing office of the company. The complainant firm continued entrusting the employee with the money even after having the knowledge of material facts bearing the dishonesty of the employee and at the same time, kept on recovering the amount from the employee by different modes i.e. equal EMI, Cheques, Committee, Direct Payment etc. Even the desired precautions, checks and measures to secure accuracy of accounts were not applied properly and even queries raised, vide letter dated 20.12.2016 were not fully and properly replied. The policy in question is first policy obtained by the complainant with a motive to claim the previous loss. It is further submitted that the adjudication of the matter in question in the present complaint requires examination and cross-examination of witnesses and such matter in question can not be adjudicated in summary proceedings rather the complainant should be asked to go Civil Courts and further alleged that there is no deficiency in service on the part of the OPs. On merits, it is admitted that the complainant obtained an insurance policy, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
5. In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavit Ex.CA-1/A along with some documents Ex.C-1 to Ex.C-9 and closed the evidence.
6. Similarly, counsel for the OPs tendered into evidence affidavit of Rakesh Sharma as Ex.OA along with some documents Ex.O-1 to Ex.O-6 and closed the evidence.
7. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
8. Precisely, the factum of the complaint to the extent that the complainant obtained insurance policy for the year 2014-15 and 2015-16, then 2016-17 is not in dispute. It is also admitted fact that after submitting an insurance claim by the complainant, the matter was probed from the Surveyor, who submitted his report Ex.C-6, whereby recommended that the total loss caused to the complainant is Rs.3,05,292/-, out of which Rs.1,40,000/- had been already recovered from the Nikhil (Vishu), who committed fraud and remaining amount Rs.1,65,292/- was recommended to pay to the complainant subject to terms and conditions of the policy and thereafter, admittedly the OP got legal opinion from its counsel Sh. Raman Kumar Sharma, Adv who gave his opinion and copy of the same is Ex.C-7, wherein he endorsed the report of the Surveyor and also recommended that the company should pay the claim as assessed by Sh. Rajesh Gupta, Surveyor and Loss Assessor. After getting opinion from the legal person as well as getting a survey report, the OP became frustrated and did not agree to pay the insurance amount rather further got investigated the matter from M/s Swift Investigation Agency, who is run allegedly by a person, who is previously working as DMA with the OP Company and obviously, when the second investigation got conducted by the OP, the same is for the purpose to decline the claim of the complainant and similarly the said investigation agency, vide its report Ex.C-8 recommended for not paying the said amount rather gave a suggestion to repudiate the claim and upon that investigation report, a supplementary legal opinion was again obtained from the same legal person Sh. Raman Kumar Sharma, Adv, who again follow the report of the investigation agency, as he previously follow the report of Surveyor. So, we find that the legal person always go and gave legal opinion as per the sweet will of the OP/Insurance Company and as such, we are not constrained to rely upon the legal opinion given by a legal person as well as second investigation report.
9. The plea taken by the OP for repudiation of the claim that there is a delayed intimation in regard to fraud committed by the employee of the complainant, but this plea was not found by the first Surveyor and as such, the said plea taken by the OP seems to be a manipulated and self made plea just to refrain the complainant from eating the fruits of the insurance claim, if there was any delay in filing the insurance claim, then the same must be came in the Surveyor report Ex.C-6, but that factum has not described in the Survey Report, which shows that it is a self made plea just to decline the claim of the complainant and further the OP took a plea that the employee of the complainant Mr. Nikhil is committing fraud with the complainant firm since the year 2014 and this fact has come to the notice of the OP from the statement of Mr. Nikhil employee of the complainant, which was recorded by the policy, but the said report is not brought on the file by the OP, OP alleged that the said statement is in the possession of the investigation agency i.e. police, but the OP can get certificate copy of the same by adopting due process and can bring on the file just to fulfill its plea in regard to committing of fraud by the Mr. Nikhil since 2014, but no such evidence has been brought on the file. So, this plea of the OP is also not established.
10. Furthermore, we are of the opinion that the statement given by the accused Nikhil before the police itself is not admissible and thus, we reached to conclusion that the claim of the complainant has been wrongly and illegally repudiated by the OPs and thus, we reached to the conclusion that the complainant is entitled for the relief claimed and accordingly, complaint of the complainant is partly accepted and OPs are directed to pay the claim amount of Rs.1,65,292/- to the complainant and further OPs are directed to pay compensation to the complainant, to the tune of Rs.25,000/- for mental tension and harassment to the complainant and further OPs are directed to pay litigation expenses to the tune of Rs.10,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jyotsna Karnail Singh
21.01.2019 Member President
