VEENA MISRA,MEMBER - (1.) THE complainant has filed the present complaint seeking relief of Rs. 35,29,500 with interest @ 12% from 5.2.2008 against the O.P. together with cost, etc.
(2.) AS per averments of the complaint, the complainant had obtained Bankers Indemnity Policy bearing No. 190500/46/62/00000094 for the period from 10.11.2007 to 31.3.2008. During the subsistence of aforesaid policy, 40 forged drafts were passed in the name of Vasudeo Mandal, through Federal Bank, Raipur between 14.12.2007 and 1.1.2008, thereby causing loss of Rs. 35,29,500 to the complainant Bank. The complainant Bank had reported the matter to Golbazar Police Station, Raipur and offence No. 12/2008 was registered on 9.1.2008. After investigation challan was filed before the Chief Judicial Magistrate, Raipur under Sections 420, 467, 471,120 (B) of IPC against Vasudeo Mandal and Tikam Singh Chouhan. The Bank also gave intimation of the incident to the O.P. and laid claim before the O.P. insurer on 5.2.2008. Vide letter dated 31.3.2009, which was received by the complainant on 8.4.2009, the O.P. had illegally repudiated the claim. It is also alleged in the complaint that the O.P. took a long time of more than one year to decide the claim of the complainant. Such delay as well as repudiation of claim amounts to deficiency in service on part of the OP. Hence, the present complaint has been filed, seeking a direction to be given to the O.P. for payment of the aforesaid sum of Rs. 35,29,500 with interest @ 12% from the date of claim, i.e., 5.2.2008, besides cost of proceedings, Advocate fee and any other remedy deemed fit in the facts of the day.
(3.) RESISTING the complaint, the O.P. filed written version, denying the allegations of deficiency in service. It was admitted that the O.P. had issued the subject policy in favour of the complainant, but it was emphasized that the said policy was issued subject to certain terms, conditions and exclusions, etc., and the same were binding on the parties. As per written version, the basic premium paid for the items mentioned from A -H was only for covering the risk up to Rs. 10,00,000 and as no additional premium was paid for covering risk of forgery or alteration, so even if the complainant proves his case, the amount claimed by him, cannot be awarded as it is an excess of the limit of coverage of risk. It is also mentioned in the written version that there are certain conditions -precedent to liability, condition of reasonable care is also incorporated in the policy and it has been specifically mentioned under exceptions that 'losses resulting wholly or partially from any negligent act of the insured's employee(s)' the amount would not be payable. It is averred in written version that the employees and officers of the complainant Bank, namely Shri Babulal Pandey, Assistant Cashier, Stationary In -charge; Shri P.K. Shesh, Branch Manager, COD; Shri N.K. Verma, Assistant Branch Manager, COD; Shri Jogi Ram Soni, Assistant Branch Manager, COD were issued 'show -cause notice' as they had been negligent in performance of their duties. The O.P. had appointed Shri Ram Mohan Gupta as Surveyor, who had given his report dated 15.2.2008. The Bank had also obtained legal opinion from the Counsel, Mr. Rakesh Kumar Shukla. Addendum report was also given by the Surveyor dated 24.3.2009. On the basis of the Surveyor's report and legal opinion, it was found that the loss suffered by the Bank came under Exception (b) of the policy, as the same had resulted due to negligent act of the insured's employee(s). Hence, the claim was repudiated by the O.P. vide letter dated 31.3.2010. It was also averred that as the matter required deep investigation, more time was spent in such investigation, which does not amount to deficiency in service. The O.P. had also stated that the complainant had failed to follow mandatory provisions of Income Tax Act. It was averred that repudiation of claim of the complainant in aforesaid circumstances does not amount to deficiency in service and the complainant is not entitled to any relief what -so -ever as claimed in the complaint. On the contrary, the O.P. claimed compensatory cost of Rs. 25,000 and prayed that the complaint be dismissed. The complainant Bank had filed affidavit of Shri A.K. Shrivastava, Chief Executive Officer, whereas the O.P. had find affidavit of Smt. Usha Jain, Divisional Manager of the OP. In support of the contentions made in the pleading, various documents have been produced by both parties.;