National Consumer Disputes Redressal
Kolhapur District Central ... vs National Insurannce Co. Ltd. & Anr. on 26 February, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 56 OF 2009 1. KOLHAPUR DISTRICT CENTRAL CO-OPERATIVE BANK LTD. Managing Director,
Head Office at Shahupuri Kolhapur ...........Complainant(s) Versus 1. NATIONAL INSURANNCE CO. LTD. & ANR. The Manager,
(A Subsidiary of General Insurance Co. Of India)
Circle Office, Cosmos Commercial Complex,
205-B, E-ward,
2nd Floor,
New Sahupuri, Kolhapur - 416 001 2. HTE DIRECTOR, DIRECTORATE OF INSURANCE Maharashtra State (General Insurance Fund), Office at 264, Grihanirman Bhavan (MHADA), Opp. Kalanagar, Bandra (East) Mumbai - 400 051 ...........Opp.Party(s)
BEFORE: HON'BLE MRS. M. SHREESHA, PRESIDING MEMBER
For the Complainant : MR. PRAVIN SATALE For the Opp.Party : Mr.Yogesh Malhotra, Advocate for R-1
Mr.R.A. Gupta, Advocate for R-2
Dated : 26 Feb 2016 ORDER
Heard the learned counsel for the parties.
The Complainant Bank (for short 'the Bank') had taken a Bankers' Indemnity Policy from the First Opposite Party (OP-1) and the Second Opposite Party (OP-2) as the co-insurer and they had shared the insurance premium paid by the Complainant in the ratio of 60:40, covering the period from 2005-2006. The sum insured under the policy is Rs.10 lakh and additional sum insured is Rs.7 crore in Contingency A and Rs.4.90 crore in Contingency B. While so, the Special Audit Class-I (CS) of the Bank, while conducting the quarterly audit, discovered discrepancy in the actual cash amounts mentioned in the books of account to the tune of Rs.4.22 crore. One of the employee, namely, R.M. Bhujwadkar, admitted that he conspired in collusion with another employee, namely, Anil D. Punekar. The Bank stated that it had taken all precautionary measures but could not detect the collusion between the delinquent employees till the special audit. A police complaint was lodged on 25.2.2005 against them for theft, fraud, misappropriation and forgery. Thereafter, the Bank lodged the claim for 4.22 crore on account of loss sustained by the Bank. A surveyor was appointed by OP-1 Insurance Company, who examined all the original documents and demanded the Bank to furnish some more documents with respect to the explanation sought from the delinquent employees.
The reminder claim letter dated 31.8.2006 reads as follows:
"With reference to above letter the documents demanded by you regarding the fraud at Kagal Branch No.2 have been sent by letter dated 22.8.2005 vide dispatch No.1AC-81/05-06 and following claim has been lodged.
The claim for fraud on Bank : Rs.287.00 lakh
Basic insurance for the period
1999-2005 @ Rs.10 lakh p.a. : Rs.60 lakh
The Fidelity Claim for 25
Employees involved in fraud
To whom notice (departmental : Rs.75 lakh
Inquiry/suspension/dismissal)
@ Rs.3 lakh
Total Claim : Rs.422 lakh
Hence, the amount claimed be paid immediately.
The particulars of an amount of Rs.19,22,433/- recovered by police in the fraud is furnished to you, however the bank has not received any amount out of the said amount. Please note."
Despite repeated reminders by the Bank to settle the claim of Rs.4.22 crore, there was no response.
The Bank had written a letter to OP-1 on 5.7.2007, for which they received the reply apologizing for the delay caused in settlement of the claim. Subsequently, the Bank had written several letters and requested for early settlement but there was no response from the Opposite Parties.
The repudiation letter dated 7.12.2007 reads as follows :
"This refers to your office letter dated 22.8.2007. The information required is as under :
As per our survey report, the liability under the claim is calculated as under :
Basic sum insured being maximum
Liability under the policy ... Rs.10,00,000/-
-----------------
Insurer's liability subject to
Recoveries ... Rs.10,00,000/-
==========
And, as per the terms of relevant policy, any amount which but for the acts or defaults on which the claim shall be found would have become payable by the insured to the employee in respect of whom a claim is made hereunder or any other money which shall be due to such employee from the insured shall be deducted from the amount payable under this policy and that all moneys estate & effect of such employee in the hands of or received or possessed to the employee& also all moneys or effects which shall come into the possession or power of the insured for or on account of such employee in respect of whom any claim shall be made on this policy shall be applied by the insured in & towards making good the amount of his claim under this policy in priority to any other claim of the insured upon such moneys estate or effects.
As per the police report, they have seized assets worth Rs.19,22,433/- from culprits.
And following amounts are due by insured bank to the employees involved in fraud :
Name of employee Amount towards Amount(Rs.)
Mr.A.D. Punekar PF 2,75,000/-
Mr.A.D. Punekar Leave encash- 24,000/-
ment
Mr.R.M. Bhujwadkar PF 4,00,000/-
Mr.R.M. Bhujwadkar Leave encash- 24,000/-
ment
In our opinion, the recovery shall first be adjusted towards insurer's share of loss.
Amount of recovery which is more than the insurer's liability, can be adjusted towards the claim.
Hence liability under the claim will be NIL."
Hence, the Complaint before this Commission seeking the following direction to the Opposite Parties :
To direct Opposite Parties to pay Rs.4.22 crore with interest @ 24% p.a. from the date of filing of the claim, i.e., 25.2.2005;
To pay Rs.10 lakh towards compensation;
To pay Rs.10 lakh towards costs;
Pass any other appropriate orders as the Commission may deem fit.
The OP-1 filed the written version admitting to the issuance of the Bankers' Indemnity Policy for the period from 1.7.2004 to 30.6.2005. OP-1 stated that the Complainant Bank claimed an amount of Rs.2.87 crore for the loss suffered by it due to dishonesty of its employees, when the sum insured under the policy for the loss pertained to, is Rs.10 lakh. The surveyor had assessed the liability under the claim to "NIL" as the amount of recovery was more than the insurer's liability. Hence, the claim was repudiated vide letter dated 14.2.2008. It is submitted that their independent surveyor J.C. Bhansali had stated in his report dated 8.2.2007 as follows :
"As per the observation of the bank, this modus operandi is continued since last 4-5 years."
The Insurance Company had repudiated the claim because the recoveries against the charged employees were indicated at Rs.26,45,433/- resulting in "No Claim". It is further submitted that the surveyor and loss assessor investigated the cause and verified each and every requisite document, which established the fact that there was fraud and misappropriation of money done by two employees. The Opposite Parties further submitted that they had intimated the Bank from time to time that the report of the investigator was still awaited. The repudiation of the claim was on the basis of complete investigation and scrutiny of the claim and within the reasonable scope of policy and there was no deficiency on their part.
The brief point that falls for consideration is whether the Complainant Bank is a 'consumer'. There are allegations of fraud, forgery and misappropriation of funds by the employees. It is an admitted fact that the special audit conducted by the auditor and investigation by the police into the legal action of the delinquent employees led to the discovery that the said employees were responsible for theft, fraud, misappropriation, forgery and negligence, thereby leading to huge losses which occurred during the policy period. An FIR was also lodged against the delinquent employees.
Counsel for the respondent brought to our notice a judgement of this Commission in Managing Director, Kolhapur District Central Cooperative Bank Ltd. vs. National Insurance Co. Ltd. & Anr. [CC/73/2012 decided on 29.10.2014], pertaining to the same Complainant and Opposite Parties, which was disposed of on the ground that the complainant was not a 'consumer', as there are allegations of fraud and forgery, which the consumer fora cannot adjudicate, as it requires voluminous evidence.
Reliance can be placed on the judgments of this Commission in M/s Citimake Builders Pvt. Ltd. Versus Samata Sahakari Bank Ltd. [CC No. 141 of 2009 decided on 16.10.2012] and Oriental Bank of Commerce Versus M/s Shankar Chawal Udyog & Anr. [R.P. No. 4315 of 2012 decided on 20.05.2014]. The relevant para of the 2nd judgment runs as follows:-
"9. As there was allegation of forgery in the complaint and criminal case was also pending before the Court, learned District Forum should have dismissed complaint and directed complainant to approach to the Civil Court for redressal of his grievances and learned State Commission further committed error in dismissing appeal and revision petition is to be allowed."
In view of these authorities, the case is disposed of and liberty is given to the complainant to approach the appropriate Forum for redressal of his grievances and complainant can seek benefit in regard to the limitation as per law laid down in Laxmi Engineering Works Vs. P.S.G. Industrial Institute - (1995) 3 SCC 583.
Learned counsel for the complainant has requested for 3 months' time to approach the appropriate Forum. However, I feel it a fit case to grant 8 weeks' time, from the date of receipt of this order, for the said purpose.
The Complaint stands disposed of accordingly.
...................... M. SHREESHA PRESIDING MEMBER