State Consumer Disputes Redressal Commission
New India Assurance Co. vs Dhbvnl on 16 August, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No : 1051 of 2016 Date of Institution: 04.11.2016 Date of Decision : 16.08.2017 The New India Assurance Company Limited, through Divisional Manager, Division Office at 182-183 Commercial Urban Estate-1, Hisar, Haryana, now through its authorised signatory K.B. Bindal, Regional manager, The New India Assurance Company Limited, SCO No.36-37, Sector 17-A, Chandigarh. Appellant-Opposite Party No.1 Versus 1. Dakshin Haryana Bijli Vitran Nigam Limited (DHBVNL) through Sub Divisional Officer (OP) City Sub Division, Dakshin Haryana Bijli Vitran Nigam Limited, Mahendergarh, District Mahendergarh, Haryana. 2. Dakshin Haryana Bijli Vitran Nigam Limited (DHBVNL) through Chief General Manager (Accounts) having its office located at DHBVNL, Vidhyut Sadan, Vidhyut Nagar, Hisar (Haryana)-125001 through the Sub Divisional Officer (OP) City Sub Division, Dakshin Haryana Bijli Vitran Nigam Limited, Mahendergarh, District Mahendergarh, Haryana Respondents-Complainants 3. Mr. R.K. Mehta, Development Officer/Broker (ID7835753) The New India Assurance Company Limited., SCO 23-24 LIC Building, HUDA Ground, Jind (Haryana) using Mobile No.9896342477). 4. Mr. Bharat Bhushan Mehta (AG00034171 & SI00063778) C/o The New India Assurance Company Limited., Office at 182-183 Commercial Urban Estate-1, Hisar (Haryana) using Mobile No.9896342477. 5. Anil Jain, Admn. Officer (Mobile No.94162414140), The New India Assurance Company Limited, Office at 182-183 Commercial Urban Estate-1, Hisar (Haryana). Respondents-Opposite Parties CORAM: Hon'ble Mr. Justice Nawab Singh, President. Mr. Balbir Singh, Judicial Member. Argued by: Shri J.P. Nahar, Advocate for appellant. Ms. Alka Joshi, Advocate assisted by Shri Jagdish Chander, Sub Divisional Officer for respondents No1 and 2. None for performa respondents No.3 to 5. O R D E R
BALBIR SINGH, JUDICIAL MEMBER This appeal has been preferred against the order dated July 15th, 2016 passed by District Consumer Disputes Redressal Forum, Narnaul (for short 'the District Forum') in Complaint No.134 of 2015.
2. Dakshin Haryana Bijli Vitran Nigam Limited (DHBVNL)-Complainants (respondents No.1 and 2 herein) were provided Personal Accident Insurance (Group (unnamed)) Insurance Policy by 'The New India Assurance Company Limited' (for short the 'Insurance Company')-Opposite Party No.1 (appellant herein) vide cover note No.35340042130100000005 (Annexure C-2) covering loss of money in transit, robbery, theft or any other fortuitous cause, burglary, Housebreaking and Robbery etc. for its 137 locations including office of DHBVNL, Mahendergarh, regarding the period from May 27th, 2013 to may 26th, 2014, mentioning total sum assured as Rs.5.00 lacs. An amount of Rs.20,7,024/- was paid as premium on May 24th, 2013 for providing insurance policy No.35340042130100000005. Necessary formalities were completed regarding providing insurance policy by the opposite parties No.2 to 4 on behalf of opposite party No.1 - The New India Assurance Company Limited. As per terms and guidelines of the insurance, the complainant used to keep cash amount received by it in a locked safe (chest) or locked strong room in the insured premises of the complainant.
3. In between night of November 16th/17th, 2013 during the insurance period, an amount of Rs.5,34,917/- was stolen from the chest of the complainant by breaking its lock and taken away by some unknown thief. A criminal case under F.I.R. No.507 (Annexure C-5) was registered on November 17th, 2013 at Police Station Mahendergarh, under Sections 406, 409 of the Indian Penal Code. During investigation, Sections of First Information Report (FIR) were converted from Sections 406, 409 I.P.C. to Section 457,380 I.P.C. Shri S.P. Goyal, was appointed as surveyor by the Insurance Company who visited the place of occurrence and prepared his report. On the basis of surveyor report, the claim of the complainant was repudiated. The insurance claim of the complainant was not settled despite legal notice served upon the opposite parties. It is pleaded that it is a case of deficiency in service on the part of the opposite parties and prayed that the opposite parties be directed to pay an amount of Rs.5,34,917/- stolen from the chest of the complainant with interest at the rate of 24% per annum from November 17th, 2013; an amount of Rs.50,000/- as compensation on account of un-necessary harassment and mental agony; an amount of Rs.2,34,935/- being interest from November 17th, 2013 up to October 03rd, 2015 and litigation expenses amounting to Rs.25,000/-, total amounting to Rs.8,44,852/-.
4. The opposite parties in their written version have taken plea that the complaint is not maintainable in the present form; that it is not a case of deficiency in service on the part of the opposite parties and that the District Forum, Narnaul has no territorial jurisdiction to decide this complaint. It is further pleaded that claim of the complainant was rightly repudiated keeping in mind the report of the surveyor as well as opinion of DGM/Op, Division, DHBVNL, Mahendergarh regarding this occurrence. The DGM, Operation, Division, DHBVNL, Mahendergarh has opined that Parkash Chander Chowkidar, is responsible for this theft and Sanjay Kumar, LDC is also responsible to the extent that he did not deposit cash amount collected up to 1:00 P.M. in the bank to retain minimum cash in the chest. The surveyor Shri S.P. Goyal has mentioned in his report that it is not a case of forcible entry and there was no sign of breaking of chest. It seems that the chest was opened and thereafter was broken to show it a case of theft. It appears that the chest was opened with the help of keys and thereafter gate of the chest was broken. As per version of the opposite parties, the complainants are not entitled to receive any amount as claimed in the complaint and prayed that the complaint be dismissed with cost.
5. Parties led evidence in support of their respective claims before the District Forum.
6. After hearing arguments, vide impugned order dated July 15th, 2017 the complaint filed by the complainants was allowed directing the opposite parties to pay an amount of Rs.5,34,917/- being stolen amount with interest at the rate of 10% per annum from the date of commission of theft and an amount of Rs.5500/- as litigation expenses.
7. Aggrieved with the impugned order dated July 15th, 2017, The New India Assurance Company Limited has filed the present appeal with a prayer to set aside the impugned order and to dismiss the complaint.
8. We have heard learned counsel for the parties and perused the case file.
9. During the course of arguments, there was no controversy of any type that an insurance policy (Annexure C-2) was provided by the appellant-Insurance Company to the complainants, mentioning total sum assured as Rs.5.00 lacs regarding the period from May 27th, 2013 to May 26th, 2014 regarding 137 centers including the office of the complainants at Mahendergarh, from where theft was committed, as alleged. The insurance policy covers loss of money in transit, robbery, theft or any other fortuitous cause, burglary, Housebreaking and Robbery etc. There is no controversy of any type that in between night of November 16th/17th, 2013 an amount of Rs.5,34,917/- was kept in the locked chest in a room/office of the DHBVNL-Opposite Party No.1 at Mahendergarh. As per version of the complainant, the above mentioned amount was stolen by some unknown person during that night after breaking the locked chest.
10. Admittedly, regarding this incident on November 17th, 2013, a criminal case was registered under F.I.R. No.507 (Annexure C-5) at Police Station Mahendergarh, under Sections 406, 409 of the Indian Penal Code. During investigation, it was observed that in fact offence was committed under Sections 457,380 of the Indian Penal Code. Copy of the final report under Section 173 Cr.P.C. placed on the file was submitted before the Sub Divisional Judicial Magistrate, Mahendergarh by Station House Officer, Police Station on June 26th, 2014 mentioning that the offence was committed under Sections 457, 380 I.P.C. Moreover, from the contents of the F.I.R. and other record on the file, it does not appear that it was a case of criminal breach of trust. In this case, entrustment of the total amount, mentioned above, was with Sanjay Kumar, LDC who kept the amount of Rs.5,34, 917/- in a locked chest in safe custody.
11. It is not the version of the complainant or the opposite parties that the amount was misappropriated by LDC or Parkash Chander Chowkidar. During the intervening night of November 16th,/17th, 2013, Parkash Chander remained absent from duty due to illness of his son and Sanjay Kumar, LDC, was not supposed to take care of the amount kept in the chest during night hours. Moreover, from the copy of the remand papers (Annexure C-13) it stands established that Samim Seikh, one of the accused, was arrested in this case who got recorded his disclosure statement (Annexure C-7) also on March 14th, 2014 mentioning that theft was committed by him along with Shameem resident of Uttar Paradesh, BUdha son of Subhash Chand Saini, Chirpatia son fo Billa, Residents of Mohalla Gujkhara Rewari, and Imran, Resident of West Bengal and the amount which was received by him (Samim) had been spent by him for his treatment. In this way, the stolen amount could not be recovered. The surveyor of the insurance company in his report (Annexure R-1) has mentioned as under:-
" FORCIBLE ENTRY The insured stated that the thieves entered into the office by breaking lock of door, and thereafter, broke the chest. However, at the time of survey no evidence of forcible entry was found. Even there were no signs of breakage of chest. It seems that the chest has been opened than broken to show it, as theft."
12. It is clearly mentioned in the report of the surveyor (Annexure R-1) that the AGM (Op.) City Sub Division, DHBVN has submitted a justification for claim of loss and has stated that cash was collected after 3:00 PM on November 16th, 2013. Regarding this occurrence, a criminal case was registered under Sections 406,409 I.P.C. Shri S.P. Goyal, Surveyor, has given opinion that the chest was broken with the help of keys and thereafter the gate of chest was broken to depict as theft. It is also mentioned that it appears that the chest was opened and thereafter broken to show it a case of theft. This opinion of the surveyor cannot be given much weight. How the surveyor can say that chest was broken after opening the chest with the help of keys. We feel the opinion of the surveyor is without any basis and has been given only to help the Insurance Company.
13. Apart from, it makes no difference if DGM Operation Division DHBVNL, mentioned in his report that Parkash Chander Chowkidar and Sanjay Kumar, LDC, are responsible regarding commitment of theft. Parkash Chander, Chowkidar and Sanjay Kumar, LDC can be held responsible only in the departmental disciplinary proceedings. Findings can be safely given that they were neither involved in commitment of theft nor it is a case of breach of trust.
14. As a result, as per discussions above in detail, we feel no hesitation in giving finding that it is a clear case of theft of an amount of Rs.5,34,917/- from the chest kept in safe custody in a room of the office of complainant No.1/DHBVNL at Mahendergarh. Legally and technically also use of force is not a necessary ingredient regarding commitment of the offence of theft under Sections 457, 380 I.P.C. Findings can be safely given that the complainant did not violate any term and condition of the insurance policy as the theft of the above mentioned amount was committed during the period of insurance. The complainants-DHBVNL, are entitled to receive the total insured amount of Rs.5.00 lacs from the opposite parties. Learned District Forum has committed an error while awarding an amount of Rs.5,34,917/- as the total insured amount was Rs.5.00 lacs only. In view of this, the opposite party No.1 - The New India Assurance Company Limited is directed to pay only an amount of Rs.5.00 lacs being insured amount and Rs.5500/- as litigation expenses. With this slight modification in the impugned order, the appeal stands dismissed.
15. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainants against proper receipt and identification in accordance with rules, after expiry of period of appeal/revision, if any.
Announced:
16.08.2017 (Balbir Singh) Judicial Member (Nawab Singh) President CL