State Consumer Disputes Redressal Commission
United India Insurance Company ... vs M/S.Rocky Traders, on 6 July, 2010
BEFORE THE HON
BEFORE THE HONBLE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI
First Appeal No.785 of
2006 Date of filing: 19/04/2006
In Complaint
No.665/2001 Date of order: 06/07/2010
District Consumer Disputes
Redressal Forum, Kolhapur.
United India Insurance
Company Limited,
Through its Divisional
Manager,
C.S.No.1396/1997, Tikke
Building,
C Ward Laxmipuri,
Kolhapur.
..Appellant/
(Org. Opposite Party)
V/s.
M/s.Rocky Traders,
Through its partner
Shri Dhanraj Ramchandra Chandwani,
R/o Trade Centre
Building,
IInd Floor, Block No.9,
Station Road, E Ward,
Kolhapur.
..Respondents/
(Org. Complainant)
Quorum:
Shri P. N. Kashalkar, Honble Presiding Judicial Member.
Smt. S. P. Lale, Honble Member.
Present:
Mr.A.S. Vidyarthi, Advocate for the Appellant.
None for the Respondent.
-:
ORAL ORDER :-
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member:(1)
This is an appeal filed by the original Opposite Party Insurance Company against the judgment and award passed by the District Consumer Disputes Redressal Forum, Kolhapur in Consumer ComplaintNo.665/2001 decided on 19/09/2005. By allowing the complaint, the Forum below directed Opposite Party Insurance Company to pay to the Complainant a sum of Rs.3,00,000/- along with interest @9% per annum from 26.11.2001 till realization of the entire amount and also directed to pay Rs.1,000/- as costs to the Complainant. As such original Opposite Party has filed this appeal.(2)
Facts to the extent material may be stated as under:
The Complainant is a partnership firm and it is in the wine business. It had purchased policy for indemnity in respect of cash in transit/fraud/fidelity with Policy No.160501/48/11/002598/2000 which was in force from 30.12.2000 to 29.05.2001. The Complainant had appointed Distributors at Kolhapur, Sangali, Satara, Ratnagiri and Sindhudurg for recovering the amounts.
Complainant had appointed Shri Ananda Kadam for collecting amount from the various Salesmen of its five offices and for depositing the same in the Bank. Later on it was transpired that Ananda Kadam had committed fraud/misappropriation of amount to the extent of Rs.4,35,632/- within a period from 17.07.2000 to 18.08.2000. Complainant therefore filed F.I.R. against Ananda Kadam in police station and police have also ultimately filed charge sheet against him. According to Complainant it had submitted insurance claim with necessary documents to the Opposite Party Insurance Company and in the said claim they had claimed amount of Rs.4,35,632/-. The Opposite Party by letter dated 29/10/2001 informed the Complainant that it had settled the claim for the amount of Rs.1,81,103/-. The Complainant sent reply to Insurance Company vide letter dated 05.11.2001 and told that they are ready to accept the amount under protest, but, Opposite Party informed the Complainant that they would not be giving any amount under protest and that Complainant should accept the amount offered as full and final settlement by giving subrogation letter on stamp paper of Rs.200/- in favour of the Opposite Party. Complainant therefore did not accept the said amount offered by the Insurance Company and filed consumer complaint against the Opposite Party Insurance Company.
(3)The notice was issued by the Forum below. Opposite Party appeared and filed written statement and denied the allegations made by the Complainant. According to Opposite Party, after receipt of claim lodged by the Complainant they had appointed M/s.Birajdar and Co., Chartered Accountants, Solapur to assess the extent of loss and liability of the Opposite Party under the Insurance Policy. The said Surveyor had gone through the papers, books of accounts, documents tendered by the Complainant and submitted their Surveyor report. As per Survey Report of the concerned Chartered Accountant, net liability of the Opposite Party in respect of Complainants claim was Rs.1,81,103/- and accordingly Opposite Party had offered the said amount to the Complainant. According to Opposite Party, considering the fact that Insurance Policy taken by the Complainant Company was for the sum assured of Rs.3,00,000/- and considering the amount of fraud and amount recovered, they had offered the amount of Rs.1,35,827/- on non-standard basis, since complaint was pending and not decided by the Magistrate before whom criminal proceeding was going on. Opposite Party pleaded that they were not guilty of deficiency in service, though it offered amount of Rs.1,81,103/- on non-standard basis.
(4)On the basis of documents and affidavits placed on record the Forum below held that the loss to the Complainant on account of fraud/misappropriation committed by Ananda Kadam - was Rs.4,35,632/-, whereas, sum assured was Rs.3,00,000/- and therefore, Forum below directed that amount of Rs.3,00,000/- should be given to the Complainant along with interest @9% per annum as mentioned in opening paragraph of the judgement. Aggrieved thereby the original Opposite Party has filed this appeal.
(5)Today we heard submission of Mr.A.S. Vidyarthi, Advocate for the Appellant. None appeared for the Respondent. On 29.04.2010 this matter was for admission and we had admitted this appeal after hearing Advocate Mr.Vidyarthi for the Appellant and Mr.Sameer Tambekar, Advocate for the Respondent and it was adjourned today for final hearing. Mr.Sameer Tambekar, had agreed to this date. Today, however, he is absent. We heard Mr.A.S. Vidyarthi, Advocate for the Appellant.
(6)We are finding that the order passed by the Forum below, granting compensation of Rs.3,0,0000/- to the Complainant is per se bad in law in as much as the Forum below overlooked the Surveyors report prepared by M/s.Birajdar and Co., Chartered Accountants, Solapur. The Forum below though had examined the claim of the Complainant with reference to the documents produced by the Complainant they have ultimately found that fraud to the extent of Rs.7,21,632/- was committed by the employee of the Complainant, maximum payable under the policy is Rs.3,00,000/- the amount recovered in the course of police interrogation was Rs.1,18,103/-, so liability of the insured would be Rs.1,81,103/-. The Insurance Company, however, offered sum of Rs.1,35,827/-in full and final settlement of the claim under the policy of the Respondent/Complainant. That was further under net-standard basis, since criminal complaint was going on before the Ld. District Magistrate, Kolhapur against Ananda Kadam. However, we are of the view that the amount payable to the Respondent should have been in terms of Surveyors report submitted by M/s.Birajdar and Co., Chartered Accountants, Solapur, who had rightly calculated the liability of Insurance Company of Rs.1,81,103/- and Appellant Company had not justified in further reducing the claim to Rs.1,35,827/-. In this view of the matter the Forum below ought to have allowed the complaint partly and should have given the amount of Rs.1,81,103/- to the Complainant/Respondent by allowing the complaint partly, but, Forum below lavishly granted amount of Rs.3,00,000/- as compensation for indemnifying Complainant on account of the fraud committed by its employee. We are of the view that, Forum below was not justified in law in allowing the complaint to the extent of Rs.3,00,000/- in as much as considering the pros and cons of the incident, Surveyor had recommended Insurance Company to pay sum of Rs.1,81,103/- to the Complainant. Overlooking the said recommendation without any justification, the Forum below erroneously directed Insurance Company to pay sum of Rs.3,00,000/- along with interest @9% per annum. Thus, order passed by the Forum below is surely bad in law and cannot be sustainable in law, so far as amount of Rs.3,00,000/- is concerned. So, by allowing this appeal partly, we reduce the claim payable to the Respondent to Rs.1,81,103/- as recommended by Surveyor in its Surveyors Report. We also reduce the interest payable to 6% per annum instead of 9% per annum awarded by the Forum below. In the circumstance, we pass the following order:
O R D E R
(i) Appeal is partly allowed.
(ii) In Clause No.(2) of the operative order, in place of Rs.3,00,000/- the amount should be read as 1,81,103/- and in place of interest @9% per annum it should be read as 6% per annum.
(iii) Rest of the order is confirmed.
(iv) Both the parties are directed to bear their own costs.
(S.P. Lale) (P. N. Kashalkar) Member Presiding Judicial Member ep