State Consumer Disputes Redressal Commission
Delhi Power Company Limited vs New India Assurance Company on 18 March, 2011
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 18-03-2011 Complaint Case No.C-08/136 DELHI POWER COMPANY LIMITED, - COMPLAINANT (A GOVT. OF DELHI UNDERTAKING), Rajghat Power House, New Delhi - 110002. Versus NEW INDIA ASSURANCE COMPANY, - RESPONDENT 124, Jeevan Bharti Building, Connaught Place, New Delhi - 110001. CORAM : JUSTICE BARKAT ALI ZAIDI - President MS KANWAL INDER - Member 1. Whether reporters of local newspapers be allowed to see the judgment? 2. To be referred to the Reporter or not? MS KANWAL INDER ORDER
1. This complaint has been filed on 01-07-2008 claiming Rs. Twenty Seven Lakhs from the OP as compensation with interest @12% per annum from the date of filing of the claim till realization with cost.
2. Averments in the complaint are that Delhi Vidyut Board, predecessor of the complainant, obtained a policy from the OP covering theft/loss of cash during transit valid for the period 01-04-2001 to 31-03-2002.
A theft/loss of Rs. 27,00,000/- was reported on 27-02-2002 when the cash boxes/kit was being unloaded at State Bank of India, Chandni Chowk Branch by the official of East Circle (DVB). An FIR was duly recorded in P.S. Kotwali bearing No. 128/2002. By virtue of Delhi Electricity Reforms Act 2000, DVB was split into six companies, including the three distribution companies, a holding company (Delhi Power Company Limited). With the privatization of three power distribution companies of Delhi Vidhyut Board, the 51% stake in two of DVBs arms were given to BSES and the 3rd to TATA Power under the name NDPL whereas the remaining 49% remains with the complainant. That w.e.f. 01-07-2002 M/s BSES succeeded to the East Circle Office of DVB under whose jurisdiction the loss of Rs. 27,00,000/- occurred. The claim file, however, appears to have gone by default due to the unbundling of DVB and not seriously pursued by BSES due to lack of clarity/confusion. Since the claim was held at the account of the complainant, the complainant took over and started pursuing the matter with OP who vide reply dated 10-08-2006 informed that the claim file has been closed as no claim particularly on account of lack of furnishing certain details/records by the BSES. The complainant furnished the requisite information as sought on reopening of the file and settlement of claim as public money was involved. As the dispute was between the two Public Sector Undertakings, the complainant sought settlement of dispute through the designated body/committee in view of the mandate of Honble Supreme Court in SLP No. 21047/04 but the Cabinet Secretariat vide letter dated 02-11-2007 reflected its inability on the ground that the mandate does not extend to consider dispute between State Government entities and Central Government entities and has been further challenged by the Central Government in a revision petition before the Apex Court. The complainant has sought relief alleging unfair trade practice and deficiency of service on the part of the OP, OP arbitrarily closing the claim file and failed to settle the claim even after fulfilling the requirements by the complainant.
3. The complaint is being contested by the OP on the ground that the theft has occurred on account of gross negligence of the security guard in leaving the cash van unattended and not locking the door of the van carrying cash which is excluded vide exclusions no.6 and 11 of the terms and conditions of the Policy. Even after the theft, no noise was made and no efforts were made to chase the culprit or to alert the general public which by the culprit was saved.
There is also violation of condition No.3 of the Policy as no reasonable care was taken. The complainant was informed vide letter dated 30-05-2005 of closing of claim file as no claim on account of non compliance of formalities and breach of terms and conditions of the Policy as per investigation report dated 30-01-2004 of Investigators M/s A&R Security Services. The case has been filed after about four years of closing of the claim file and hence it is time barred.
4. The parties have led evidence by way of affidavits. We have heard Ld. Counsel for the parties and have perused the record.
5. There is no dispute regarding the facts that vide Insurance Policy No. 311601/48/01/00053, Delhi Vidhyut Board, predecessor in the interest of the complainant company was insured for theft/loss of cash during transit for the period 01-04-2001 to 31-03-2002 and that a theft of Rs. 27,00,000/- took place on 27-02-2002 when cash van of the insured was parked in front of State Bank of India Branch to unloaded the cash while the security guard was standing nearby the door of the cash van and FIR in this connection has been lodged. The OP has, however, declined to honour its commitment on the ground that as per the investigation report of M/S A & R Security Services, due to breach of terms and conditions and non compliance of requirements as desired by the Investigator, the claim file has been closed. Prior to its letter dated 30-05-2005 the OP vide letter dated 27-02-2004 written to BSES stated that the file stands closed, as inspite of letters/reminders, the requisite paper/document has not been submitted and for non compliance of formalities as per investigation report. In the reply, the ground of not providing requisite documents was not taken. Defence raised is breach of terms and conditions of the policy and reference has been made to section 3,6, 11 of the Exclusion Clause which reads as under:-
Exclusion: The Company shall not be liable in respect of:
3: Loss of money where the Insured or his employee is involved as principal or accessory, except loss due to fraud or dishonesty of the cash-carrying-employee of the Insured, occurring whilst in transit and discovered within 48 hours.;
6: Money carried under contract of affreightment and theft of money from unattended vehicle. ; and 11: Loss or damage due to or contributed to by the Insured having caused or suffered anything to be done whereby the risks hereby insured against were unnecessarily increased.
Exclusion clause no.3 is not attracted in the facts and circumstances; exclusion clause no.6 will also not apply as the cash was being carried in cash van no. DL-1L C 2483 and the gunman was present very close to the door of the van. There is no plea or evidence to the effect that required paper/document were not submitted. There is nothing on record to attract Clause No.11. Hence defence plea on merit fails.
6. As regards the plea of time bar, theft/loss took place on 27-02-2002. File was reported to BSES to be closed vide letter dated 27-02-2004. With reference to various letters written by the complainant, the OP communicated closure of the file vide its letter dated 30-05-2005. The complainant wrote letters dated 12-07-2005, 28-09-2005,17/24-11-2005 giving history and requesting for settlement of the insurance claim. In its final letter dated 27-07-2006 it was mentioned that in case if nothing is heard within the next four weeks, legal action will be initiated for recovery of long standing dues and this was the last attempt to sort out the issue in consonance with the letter and spirit of the Honble Supreme Court guidelines on the subject. Thereafter it sent letters dated 01-9-2006, 03-11-2006, 05-12-206, 20-04-2007 to the OP, to which admittedly no reply was sent. There is on record one letter dated 04-08-2006 written by the OP to its Regional Manager on the subject. This complaint having been filed within two years from this letter is within time. Moreover, the complainant has placed on record its letters dated 30-08-2007 written to DG SCOPE and Cabinet Secretariat to which Cabinet Secretariat sent reply dated 02-11-2007 stating that High Power Committee set up in the Cabinet Secretariat is for resolving disputes only between Central Government Departments, Central Ministries/Departments and between Central PSUs thereof. This complaint has been filed thereafter which is otherwise within two years from the date of last acknowledgement of the OP in letter dated 04-08-2006. Hence the objection of time bar is overruled.
7. There is no dispute regarding factum of insurance for theft/loss having been taken place during currency of the insurance policy and the insured not having been paid the insured amount despite repeated and numerous requests. Hence the complaint succeeds and the claim of the complainant of Rs. 27,00,000/- (Twenty seven lakhs) against the OP is accepted.
However in absence of any agreement between the parties regarding payment of interest or any notice having been served for the purpose, no interest is being awarded till the date of passing of this order. However, the complainant is entitled to the cost of the case, which in absence of any materials placed on record in this regard, is assessed as Rs. 10,000/-.
8. For the reasons stated above, we direct the OP to pay to the complainant Rs 27,00,000/- (Rs. Twenty Seven Lakhs) with cost Rs. 10,000/- (Ten Thousand) within sixty days of the receipt of the order, failing which the awarded amount will thereafter carry interest @ 9% per annum till realization.
9. Copy of this order be provided to the parties free of costs and the file be consigned to Record Room after needful is done.
(JUSTICE BARKAT ALI ZAIDI) PRESIDENT (MS KANWAL INDER) MEMBER Av