- (1.) THE complainants have filed this complaint under Section 17 of the Consumer Protection Act, 1986 against the opposite parties for seeking a direction for payment of a sum of Rs. 65,00,000 together with interest @ 12% from the date of filing claim form, Rs.1,00,000 towards damages and costs of proceedings.
(2.) IN brief, the facts as narrated in the complaint are : (a) The complainant Bank had obtained 'Banker's Indemnity Policy' for all its branches, from the OP, bearing No. 2001/7700710, for the period from 30.3.2002 to 29.3.2003. The amount paid as premium was Rs. 53,450 . (b) On 28.12.2002, the Branch Manager Shri Krishna Kumar Kurre was carrying a sum of Rs. 65,00,000 for Chhura and Gariaband branches, on Tempo Trax bearing No. M.P. 23 -GA -6465. Within the jurisdiction of Police Station Mana, Raipur, there was a dacoity and the dacoits had looted the entire sum of Rs. 65,00,000 . A report was also lodged at Mana Police Station. (c) The incident was duly reported to the insurer in writing on 30.12.2002 and subsequently on 4.1.2003 the complainant had filed claim form together with necessary documents. Vide letter dated 19.3.2003, the OP directed the complainant to furnish Departmental Investigation Report and Final Investigation Report of the police. Despite best efforts by the complainant, Final Investigation Report could not be obtained, from the police, prior to 22.11.2004. The complainant submitted the said report to the insurer but the claim of the complainant was not decided till 17.5.2005 and the complainant wrote letters dated 17.5.2005 and 25.7.2005 to the OP. The OP required that fresh claim form be filed and the complainant filed a fresh form dated 25.7.2005 yet the claim was not decided. (d) Non -payment of claim amount resulted in irreparable injury to the complainant as the complainant was facing great difficulty in making payment to the account holders on time and in complying with the directions of the Reserve Bank of India. All this was adversely affecting the reputation of the complainant Bank. (e) It is alleged in the complaint that this act on part of the OP amounted to deficiency in service towards the complainant hence the complainant had filed complaint before the District Forum. It is also stated that cause of action arose in favour of the complainant on 4.1.2003 i.e. the date on which the complainant had filed claim form with the OP and on each subsequent date thereafter at Raipur in the State of Chhattisgarh. (f) It is prayed in the complaint that the aforesaid amount of Rs. 65,00,000 may be directed to be paid by the OP to the complainant with interest @ 12% from 4.1.2003 till actual realization thereof. Besides this an amount of Rs. 1,00,000 towards damages and the costs of proceedings etc. be directed to be paid. (g) The complainant had filed some documents including the policy and the affidavit of R.K. Misra dated 30.9.2005 in support of the complaint.
(3.) THE OP resisted the complaint and averred in the written version that the complaint is premature as the claim filed by the complainant is yet to be decided by the insurer. The claim amount was Rs. 65,00,000 hence, decision of the claim rested with the Head Office and it is learnt that the Head office is considering to repudiate the claim on the ground of fundamental breach of policy condition. It is further averred that the documents submitted by the complainant and the investigation /survey conducted by the OP revealed that the cash was robbed in transit without there being any guard for the safe transfer of such a huge amount of cash whereas Condition No. 4 stipulated that in case of transit of cash exceeding Rs. 10,00,000 two guards with the arms shall escort. It was further averred that Condition 13 lays down consequence of breach of any policy condition. Due observance of terms and conditions is the condition precedent to any liability for the company to make any payment under the policy. As there was breach of condition the claim is liable to be dismissed. The OP filed affidavits of Shri Rakesh Sharma and Shri Kishan Lal Rajak wherein it was stated that the terms and conditions running into six pages were supplied along with the policy. The OP had also filed carbon copy of the alleged policy with terms and conditions. After submission of written version, the complainant filed affidavit of S.K. Verma, Acting Chief Executive Officer of the complainant Bank, dated 10.4.2006 in rebuttal of the averments made in the written version regarding terms and conditions and it is specifically stated in the affidavit that the insurer had supplied single page policy to the complainant and copy of the same has been filed by the complainant. No terms and conditions were supplied to the complainant. The said policy was issued without any terms and conditions appended thereto. It is further stated in the affidavit that there is difference in the format of policy filed by the complainant and the one filed by the OP. The policy filed by the OP is a manufactured document and the same is titled as indemnity (Non risk Booked) Policy whereas the policy taken by the complainant was Bankers Indemnity Policy.;