State Consumer Disputes Redressal Commission
United India Ins. Co. Ltd vs Anand Mony Changers Pvt Ltd on 25 January, 2022
Details DD MM YY
Date of Judgment 25 01 2022
Date of filling 21 06 2014
Duration 04 07 07
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,
GUJARAT STATE AT AHMEDABAD.
Court-3
APPEAL NO. 1216 of 2014 Dt: 25.01.2022
United India Ins. Co. Ltd.
Divisional Office Anand
Through its Regional Office,
Surat, Plaza II, 5th Floor,
Vadodara. ...Appellant
Vs.
Anand Mony Charges Pvt. Ltd.
Shivasrya, Nr. Laxmi Cinema,
Anand through its Authorized
Signatory, Harish D. Prajapati ...Respondent
Appearance: Mr. V. P. Nanavaty, Ld. Advocate for the appellant
Mr. J. M. Gajjar, Ld. Advocate for the respondent
Coram: (Shri S. N. Vakil, Judicial Member)
(Smt. J. Y. Shukla, Member)
Order by Shri S. N. Vakil, Judicial Member
1. This appeal if by the insurance company.
2. The complainant - Anand Money Charges Pvt. Ltd., filed Consumer complaint No. 255 of 2008 with CDRF, Anand against United India Insurance Co. Ltd., that it deals in conversion of foreign currencies in Indian currency and vice verse and has its branch office Anand, Nadiad and Borsad. It is usual practice to maintain records and do business as per requisite rules and guidelines that all the transactions are required to be noted and entered into appropriate record for centralizing with the opponent. The complainant has standing instructions to its branch office K.S.P A-14-1216 Page 1 of 9 to send currencies received by them to the main office with the officer in charge, as and when a sizeable collection is received. The complainant has got itself insured, for the risk of loss of money either in Indian currency or in any foreign currency lying in any of its offices at Anand, Nadiad and Borsad and also in transit from Nadiad or Borsad to Anand Office, with the opponent vide policy No. 180100/48/06/02/00005481, for period from 14.12.2006 to 13.12.2007. The risk for Borsad office and transit from Borsad Office was included by an endorsement. On 05.02.2007, Mr. Nishantbhai Jayantibhai Kachhiya (Ka. Patel) who is working in Borsad branch office of the complainant was coming in evening with foreign currencies in cash namely 1,000 Canadian Dollars, 150 Euro, 2350 Sterling Pound, 30,021 US Dollars and 500 South African Rand, valuing to Rs. 15,75,000/- for depositing it with the Anand Office. Mr. Nishant had verified and taken the said currencies in his bag which was locked and when he reached in Anand office and opened the bag, he did not find the said currencies in his bag. He was shocked and therefore verified every corner of his bag. The complainant and others present in the office at that time. Had a talk on telephone with Borsad office whether the cash has remained there through mistake. But the same was not there, So Mr. Nishant and Mr. Viral who attends Nadiad branch and was present in office, both went on vehicle to check the road but in vain. The loss was reported to the police and Anand Town Police Station registered the offence under Section 406 I.P.C. After thorough investigation the police has submitted charge-sheet against Nishant for offences under Section 406 of IPC. The complainant on the very day i.e. on 06.02.2007, intimated the opponent about the said loss and thereafter preferred claim duly filling the claim form and also submitted requisite K.S.P A-14-1216 Page 2 of 9 documents and information. The complainant was being harassed and agonized and lastly the opponent by letter dated 19.08.2008 repudiated the claim. According to whom Mr. Nishant had brought two packets of cash and one was received and another was alleged lost, which was not possible and that the complainant had suppressed material fact while lodging the complaint in the police. It is respectively clarified that it is true that two transactions from Borsad office to Anand were made for carrying cash which were numbered as No. 191 and 192. But No.191 was transaction carried out by one Mr. Sanjay in the afternoon and the same was for carrying cash which was closing cash of the previous day, whereas transaction No.192 was carried out by Mr. Nishant in the evening of the said day. Thus both the transactions were made at different time of a single day. No clarification in this regard was ever sought from the complainant by the opponent. The complainant asked for the survey report and investigation report carried out by the opponent, of which only that of survey report was given and denied parting with copy of investigation report. According to surveyor also the loss in transit is established and there is nothing in the said survey report which may come in the way of settlement of the claim. They both might acted partially in the interest of the opponent. There was no suppression of material fact while lodging the complaint as the loss of cash was not traced out, which the opponent was obliged to positively consider and reimburse the loss. The opponent took more than 18 months to consider the claim of the opponent and denied it. For this deficiency it claims Rs. 15,75,000/- with 18% interest from the date of incident till realization, Rs. 25,000/- towards mental pain, Rs. 2500 towards telephone, conveyance and incidental charges. K.S.P A-14-1216 Page 3 of 9
3. Defence of the opponent vide written version is of total denial. The claim was correctly repudiated, legally and contractually under the contractual rights under the policy of insurance. By additional statements is alleged that the Nishantbhai Jayantibhai Kachhiya was working as manager in the branch office, Borsad and the alleged incident happened after the business hours and not within premises of the branch office, hence the terms and conditions does not apply. The panchnama and charge-sheet were only with a view to procure money from the opponent. There was no deficiency in services. The complaint be dismissed.
4. The CDRF, Anand by its judgment and order dated 26.03.2014 allowed the complaint, ordered the insurance company to pay Rs. 15,75,000/- together with interest at the rate of 7.5% from the date of complaint. It held that when Nishantbhai Jayantibhai Kachhiya working as manager of Borsad office, started with putting the currency worth Rs. 15,75,000/- in his bag which amount was lost because when he opened the bag in Anand office, there was no money therein. There was no theft or loot in the transit from Borsad to Anand. Therefore, it can be said that the Borsad branch manager defalcated the money and it has support from the police inquiry which filed charge-sheet against him in the Anand Court and is pending. When according to terms and condition, the currency is lost during transit from Borsad to Anand, the insurance company is liable pay of the same. Even if it has been defalcated by the employee of the insured. It did not accept the argument that the currency was not lost from the premises. And also not that the complaint was filed to gain money by defrauding. It did not accept the argument that the insured committed fraud by involving its own employee in the criminal case. The complaint deserves to be allowed because the amount has been K.S.P A-14-1216 Page 4 of 9 lost during transit from Borsad branch to Anand. It did not accept the argument that the amount not payable if there is a fraud as per condition No.6 of the policy. Under the circumstances the argument that the incident did not occur in the premises is not acceptable. It produced the condition as to fraud and disallowed the arguments of the insurance company.
5. Being aggrieved by the same the United India Insurance Co. Ltd. - the opponent has preferred this appeal on the ground that the learned forum failed to appreciate the contents of the letter of repudiation dated 19.08.2013, it ought not to have assumed jurisdiction in view of the fraud perpetrated by the complainant and to have relegated the complainant to the Civil Court, it ought to have appreciated that the complainant has not produced any iota of evidence on record to prove its pleadings though the insurance company has specifically denied its liability in its letter of repudiation, it has wrongly relied on the decisions relied upon by the complainant as the facts of the said judgments are quite different from the facts of the present case, it ought to have appreciated that the complainant failed to prove missing of money from the bag during transit. The complainant further failed to adduce any evidence to prove that the amount which was alleged to have been kept in the bag was for transit from branch office, Borsad to Head Office at Anand. The judgment and order be set aside.
6. Heard Advocates Shri V. P. Nanavaty and for him Shri Darshil Parikh, for the United India Insurance Co. Ltd. and Shri J. M. Gajjar, for the Anand Mony Charges Pvt. Ltd.
7. The letter of repudiation is: "your Claim of skilful misappropriation and loss of foreign currency worth of Rs.15,75,000/- corresponding K.S.P A-14-1216 Page 5 of 9 Bordereaux No. 192 during transit between Borsad to Anand being carried by your employee Shri Nishant K. Patel dated-05.02.2007 is found to be fraudulent. It is proved from your record that said employee Shri Nishant K. Patel of Borsod Office was carrying two Bordereaux No.191 and 192 worth Rs. 2,01,385/- and Rs. 15,75,000/- from Borsad to Anand on 05.02.2007 which was carried in one office bag. Mr. Harishbhai had acknowledged receipt of currency of Bordereaux No.191 worth Rs. 2,01 385/- from Shri Nishant K.Patel on 05.02.2007. You have admitted that Shri Nishant K. Patel visited the Anand Office after business hour of Borsad office once on 05.02.2007. You have not disclosed this vital information to the Police Authority even though you raised doubt under Sec.406 of IPC against your said employee Shri Nishant K. Patel.
8. Now, the Bordereaux No.191/06-2007 for Sterling Pound 850 and US Dollar 2910 equivalent to Indian Rs. 2,01,395/-. bears round seal containing in the middle name of the "Nishant" and his signature and opposite thereof signature of Anand main office in tokan of having received the currency. Whereas Bordereaux No.192/06-2007 for Canadian Dollar 1000, Euro 150, Sterling Pound 2350, US Dollar 2000, US Dollar 27021 and South African Rand 500, valuing to Indian Rs. 14,40,186/- bears seal and signature of Nishant as aforesaid, but as against this there is no any seal or signature for the Anand branch office. The complaint in its para-7 alleges that according to the opponent, Mr. Nishant had brought two packets of cash and one was received and another was alleged lost and that it was not possible, and further that the complainant had suppressed material fact while lodging complaint in the police. The Ld. Forum also agreed and gave the same findings as the K.S.P A-14-1216 Page 6 of 9 opponent. Now, it is clear this was suppressal of material fact as alleged by the insurance company in its repudiation letter itself. Therefore, the condition as to fraud that "If any claim under this policy shall be in any respect fraudulent or if any fraudulent means or devices are used by the Insurance or any one acting on the Insured's behalf to obtain any benefit under this policy, all benefits and rights under the policy shall be forfeited" squarely applies to the present claim advanced by the complainant with the insurance company and therefore the repudiation on this ground cannot be said to the unjustified. Now, it is pertinent to note that when the complaint it its para-8 pleads: "It is most respectfully submitted and clarified that it is true that two transactions from Borsad Office to Anand were made for carrying cash which were numbered as No 191 and 192. But No, 191 was transaction carried out by one Mr. Sanjay in the afternoon and the same was -for carrying cash which was closing cash of the previous day. Whereas the transaction No 192 was the transaction carried out by Mr. Nishant in the evening of the said day. Thus both the transactions were made at different time of a single day. However, it is further submitted that no clarification in regard was ever sought from the complainant by the opponent" they would be nothing but as adding to the fraud alleged in the repudiation letter.
9. Now, by the Marin Insurance Police, produced at the askance of the Commission, the insurance company agreed to indemnify the insured against the loss of money in transit, by the insured or insured's authorized employee(s), occasioned by robbery, theft or any other fortuitous cause as detailed in Section I. Money by burglary robbery or hold up whilst in the insured's premises as detailled in Section II. In a Safe or Strongroom provided always that the limit of the Company's K.S.P A-14-1216 Page 7 of 9 liability for any one loss shall in no case exceed the amount specified against the respective section in the said Schedule. SECTION I (i) ... (ii) ...
(iii) Money other than described in (i) and (ii) above belonging to the insured which is collected by and in the personal custody of the insured or the authorised employes/s of the insured, whilst in transit to the premises or bank within a period not exceeding 48 hours from the time of collection. And it provides exclusions that the company shall not be liable in respect of 3. Loss of money entrusted to any person other than the Insured or an authorized employee of the Insured. Loss of money where the Insured or his employee is involved as principal or accessory. (However, loss due to fraud or dishonesty of the cash carrying employee of the Insured, occurring whist in transit and discovered within 48 hours is covered.) ... ....
10. Now, the currency was entrusted to Nishant, an authorized employee and branch manager of the insured. He himself was involved as principal as found above. Therefore, the loss of money clearly falls under this exclusion. The loss is not by any robbery, theft, or any other fortuitous cause. Therefore, Nishant himself having been involved as principal for the loss, the loss cannot be termed by robbery or theft or any other fortuitous, due to fraud or dishonesty of the cash carrying employee of the insured. Insured's case falls under the exclusion and not to exclusion to the exclusion. Therefore, the Forum has not considered this clause much less in any right perspective, and committed error in allowing the complaint. Finding of the Ld. Forum cannot therefore be sustained.
11. For the appellant is submitted Oriental Insurance Co. Ltd. Vs. Munimahesh Patel, 2006 (7) Supreme Court Case No. 655, that the authority under the Consumer Protection Act, should not adjudicate K.S.P A-14-1216 Page 8 of 9 issues involving disputed factual questions. Now, the claim is barred by the terms as to fraud or the exclusions contained in the policy could very well be adjudicated by the authorities under the Act and therefore contention that it ought to have relegated the complaint to the Civil Court is not acceptable.
12. Therefore, the appeal deserves to be allowed, for which following order is passed.
FINAL ORDER
i) Appeal No. 1216 of 2014 is allowed.
ii) The judgment and order passed by the DCRF, Anand on 26.03.2014 in CC No. 202 of 2013 is set aside with dismissal of the complaint.
iii) Registry is directed to pay the deposited amount, with accrued interest, if paid by the bank, on proper verification to the appellant by account payee cheque and the cheque be handed over to the advocate for the appellant after obtaining receipt.
iv) Registry is directed to send a copy this order to the District Commission Anand, through E-mail in PDF format for taking necessary action.
v) Copy of the judgment be provided to the parties free of charge.
vi) No order as to costs.
Pronounced in the open Court today on 25th day of January, 2022.
(J.Y.Shukla) (S.N.Vakil)
Member Judicial Member
K.S.P A-14-1216 Page 9 of 9