National Consumer Disputes Redressal
Master Trust Ltd. And Anr. vs National Insurance Co. Ltd. And Anr. on 28 April, 2004
Equivalent citations: III(2004)CPJ33(NC)
ORDER
M.B. Shah, J. (President)
1. It is the contention of the complainant, M/s. Master Trust Ltd., that the company offers wide spectrum of activities which include merchant banking, consultancy services, corporate finance, lease & hire purchase finance, portfolio investment services, structuring of capital syndication of domestic overseas funds and is also carrying on the activities of full-fledged money changer and is registered with Reserve Bank of India (RBI) for providing Forex Services from all its offices. It is submitted that foreign currencies lying in Ludhiana office are kept in Safe. One set of keys of the Safe is kept with Shri B.B. Sharma, Director of the complainant company and second set is kept with Mrs. Shilpa Malhotra, Senior Executive of the complaint company. It is also stated that in case Director Shri B.B. Sharma is not present in the office, his set of keys is delivered to Shri Tejinder Singh, Executive of the complainant company.
2. Complainant has taken Money Insurance Policy from the opposite Insurance Company which was valid from 8.4.1998 to 7.4.1999.
3 It is further stated that on 25.1.1999 Shri B.B. Sharma, Director of the complainant company left the office at 7.30 p.m. and delivered the keys to Shri Tejinder Singh. It is contended that at around 8.00 p.m. on 25.1.1999 foreign currency amounting to Rs. 34,04,420.50 (Rs. Thirty-four lacs four thousand four hundred twenty and paise fifty only) was packed by Shri Tejinder Singh, Shri Baljinder Singh and Sh. Raj Kumar, Executives of the complainant company in a packet along with required documents for sending it to Delhi Office. This packet was kept by them in Safe.
4. It is also stated that on 24.1.1999 Akhand Path in the complainant's office at Ludhiana started and Bogh ceremony was scheduled on 26.1.1999 at 9.30 a.m. That, on 26.1.1999 at about 12.00 noon, Shri Tejinder Singh and Shri Baljinder Singh went to Safe to keep another packet of foreign currency which was received from Chandigarh office of complainant company and found that the key of the Safe was not moving and Safe was open and the packet of the foreign currency kept by them amounting to Rs. 34,04,420.50 was missing.
5. About this missing of the money, information was sent to Mr. B.B. Sharma, Mr. Harjit Singh Arora and Mr. R.K. Singhania, Directors of the company. FIR was registered at Police Station, Division No. 5, Ludhiana on 29.1.1999. Information was given to Branch Manager of Insurance Company on 27.1.1999. On 29.1.1999, Shri N. Kumar and Shri R.S. Ahluwalia, Surveyor and Investigator respectively were appointed by the Insurance Company. Finally by letter dated 15.1.2001 the claim was repudiated by the Insurance Company on the basis of the terms of the Insurance Policy by observing that although the foreign currency as alleged might have been missing from the iron Safe of the office but from all the evidence it was clear that there was no tampering of the safe, doors and windows and it has no sign of forcible entry in the premises and there being no forcible entry in the conference room where safe was kept, the Insurance Company was not at risk of indemnity.
Submissions
6. Learned Counsel for claimant vehemently submitted that there is unjustifiable delay in repudiating the claim by Insurance Company and in any case there is no justifiable ground for such repudiation. The company has lost the money from the Safe and the Insurance Company is, therefore, bound to pay for the same.
7. As against this, learned Counsel for the Insurance Company submitted that there is no evidence on record that some outsider has committed a theft. It is his contention that as admitted by the complainant the keys were left with Mr. Tejinder Singh. There are no signs of breaking of doors or windows of the room in which Safe is kept. There is no circumstantial evidence to indicate that Safe and/or lock of the Safe was broken open. He, therefore, submitted that the claim was rightly repudiated on the basis of terms of the insurance policy.
Insurance Policy
8. For deciding this controversy we would refer to the relevant part of the Money Insurance Policy :
"The Company hereby agrees subject to the terms, conditions and exclusions herein contained, endorsed or otherwise expressed hereon, to indemnify the insured against loss of money in transit, by the insured or insured's authorised employee(s), occasioned by robbery, theft or any other fortuitous cause. Further the company shall also indemnify loss of money by burglary, house-breaking, robbery or holdup whilst money or retained at insured's premises in safe(s) or strongroom, more particularly described in the Schedule, provided always that the limit of the Company's liability for any one loss shall in no case exceed the amount specified against the respective section in the said Schedule."
"[Forming part of the Policy No. 401308/4800014/98 (Money Insurance) Account M/s. Master Trust Ltd., Ludhiana."
Subject matter of the Insurance:
"On Cash in transit from different stations, places/cities/Banks to Ludhiana office and/or Chandigarh office and/or Delhi Office and/or Mumbai Office and vice versa, to be collected and carried by authorized employee and/or authorized person. Single carrying limit Rs. 20.00 lacs, each office Cash in Safe at each office :
Ludhiana : Rs. 30.00 lacs Delhi : Rs. 30.00 lacs Chandigarh : Rs. 15.00 lacs Mumbai : Rs. 5.00 lacs
Mode of conveyance : Any mode of operation in local area and authorized mode of transportation including private taxies for travel to other towns/cities. Travel is without Escort.]"
The relevant Exclusion clauses are as under:
"The Company shall not be liable in respect of :
1. ... ... ... ...
2. Loss of money entrusted to any person other than insured or an authorized employee of the insured.
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.
7. Loss of money from safe or strong room following use of the key to the safe or strong room or any duplicate thereof belonging to the Insured, unless this has been obtained by threat or by violence."
Conclusion :
9. Keeping the aforesaid conditions in back-ground, we have to consider the contention of the complainant that on 26.1.1999 at about 12 noon when Mr. Tejinder Singh and Mr. Baljinder Singh went to keep another packet of foreign currency which was received from its Chandigarh office, it was found that the key of the Safe was not moving and Safe was open. They noticed that the packet of foreign currency kept in the night was missing. They informed the seniors about the incident. As stated earlier, same is the version before this Commission in the complaint.
10. The Insurance Company has produced on record investigator's report dated 18.11.1999 given by Shri R.S. Ahluwalia. As per the report, the matter was discussed by the investigator with Shri Tejinder Singh and Mr. Baljinder Singh who had kept the packet in Safe on 25.1.1999. Inquiries were also made from other several members also. But there was no clue how the theft took place. Some pertinent questions were asked to Shri B.B. Sharma :
Question : Was the iron safe in which the foreign currency was kept was tampered / damaged?
Answer : It was neither tampered nor damaged.
Question : How many employees of your office were on duty on Akhand Path between 8.00 p.m. on 25.1.1999 and on 9.00 a.m. on 26.1.1999 and how many priests were there?
Answer : About 7/8 employees were on duty and 2/3 priests were there.
Question : Is there any Chowkidar in the building during the night?
Answer : There is a Chowkidar based on the entrance of the building and on that night he was on duty.
Question : When 7/8 persons were on duty during the night, how any outsider could come inside?
Answer : We are also surprised because 7/8 persons were on duty and the Chowkidar was at the entrance of the building.
Question : Is there any possibility that any body could have entered in the conference room, without crossing the main entrance of their office?
Answer : There is no possibility that anybody could have entered without crossing the main entrance of our office.
Question : Have you records to justify that you were sending cash daily, if yes kindly provide the copy of that?
Yes, we have got the records and we will provide the copy of that.
Question : Do you doubt anybody from your office?
Answer : Anybody could have done.
Some part of the opinion of the Investigator is as under :
"That there is nowhere the Insured has been able to adduce any convincing evidence of forceful entry into the premises, as described and enunciated in the purview of the policy. On our physical verification of the site, we could not find any point of entry of outsider into the conference room, where the safe was kept, even the Police has not been able to establish the entry point of the outsider into the conference room.
That the building is guarded 24 hours by the Watchman at the entrance of the building on the ground floor. There is no possibility of anybody entering the building without the permission of Watchman and specially during the night no outsider is allowed to enter the building. The height of the building is such that it seems inaccessible and impregnable for any outsider to make a forcible entry. During the night hours, the entry gate is closed and locked and guarded by the watchman at the ground floor. In other words, we can say that any entry to the building is closed after the office hours."
After recording other statements and considering the same in detail, the Investigator gave opinion, relevant part of which is as under :
"That everybody, whosoever gave the statement to us, told that there was no tampering of the safe, doors, windows and there were no signs of forcible entry in the premises. Under such circumstances, the forcible entry is not possible.
From the circumstantial evidences, the insured has failed to provide us with even a single evidence, which could prove that there was forcible entry into the Conference Room, where the Safe was kept. Moreover, there was also no sign of any force used to open the Safe. In view of the above, we are of the opinion that we have not been able to find any evidence of forcible entry in the premises. The underwriters may deal with the claim as per the policy conditions and the recommendations of the Loss Assessor."
Further, the alleged theft took place during the night between 25th and 26th January, 1999. The FIR was lodged on 29th January, 1999.
11. The complainant has also not disclosed as to how much Indian currency was kept in the safe nor there is allegation of missing of Indian currency. In ordinary course of business Indian currency must have also been kept in the safe. If there was theft Indian currency would also be missed, nothing of this sort is disclosed by the complainant.
12. In view of the facts stated above, can it be said that repudiation of the claim by the Insurance Company is unjustifiable?
13. In our view, it is not possible to arrive at the conclusion that repudiation of the claim is unjustifiable because of the exclusion clause of the policy. The Exclusion Clause 2 specifically provides that Insurance Company would not be liable in case of loss of money entrusted to any person and Clause No. 7 makes it a condition that the Insurance Company shall not be liable in respect of loss of money from Safe or strongroom following use of the key to the Safe or strongroom or any duplicate thereof belonging to the insured, unless this has been obtained by threat or by violence. There is no evidence on record that anybody has obtained the key to the Safe or any duplicate thereof by threat or by violence. There is no evidence that any outsider entered the premises and committed theft. It is not disputed that gatekeeper and security guards were present all throughout at the entrance of the building. They have not stated that there was any chance of an entry of outsider for committing the theft. There is nothing on record to suggest that someone secretly entered the premises and broke open the lock of the door where the Safe was kept. Evidence on record indicates that the window, doors were also not open. In this set of circumstances, it would be difficult to arrive at the conclusion that some persons other than those who were having the key of the Safe committed the theft. The insurance policy excludes its liability to reimburse the insured in such cases. Mere delay in repudiating the claim would not justify in passing the order in favour of the complainant or drawing of any adverse inference for such claim.
14. In the result, there is no substance inthis complaint and, is, therefore, dismissed.There shall be no order as to costs.