S.C. Jain, Member:
1) The present complaint has been filed by the complainant under Section 17 of the Consumer Protection Act 1986. The facts of the case are that the complainant filed the complaint on the averments that they had been taking Bankers Indemnity Policy from the opposite party since the year 1986 and the same renewed from time to time. During the period 11.07.2006 to 10.07.2007, the complainant bank took bankers indemnity insurance policy bearing No. 271600/48/2007/238 for a sum of Rs. 45 Lacs. The said policy was renewed thereafter also. It is further claimed that said bankers indemnity policy is governed by the terms and conditions as per the Standard Policy and Clause (d) of the Standard Policy is as under :
œThe dishonest or criminal act of the employee (s) of the insured with respect to the loss of money and/or Securities wherever committed and whether committed singly or in connivance with other.?
2) During the period 1986 to 2006 the complainant never lodged any claim with the opposite party under the policy. One of the employees of the complainant Sh. Ashish Bansal with dishonest and criminal acts and in collusion with Sh. Gurdeep Kamboj and others committed an act of criminal dishonesty, due to which the complainant suffered loss. Sh. Ashish Bansal was instrumental in introducing Sh. Gurdeep Kamboj, S/o Sh. Jaswant Kamboj and others committed an act of criminal dishonesty, due to which the complainant suffered loss. Sh. Ashish Bansal was instrumental in introducing Sh. Gurdeep Kamboj, S/o Sh. Jaswant Kamboj, R/o Flat No. 203, I-89, Jamia Nagar, Batla House, New Delhi and got opened a Savings Bank Account No. 704993. Further Sh. Ashish Bansal in connivance with Sh. Gurdeep Kamboj defrauded the complainant. Sh. Gurdeep Kamboj deposited stolen NSCs/KVPs with the complainant and against the same he took advances from its Daryaganj, New Delhi branch as per details given below:-
| Date | Loan Account No. | Amount |
| 21.07.06 | LN/2/9/416 | Rs. 10,00,000.00 |
| 21.07.06 | LN/2/9/417 | Rs. 5,14,000.00 |
| 09.08.06 | LN/2/9/419 | Rs. 6,48,900.00 |
| 09.08.06 | LN/2/9/420 | Rs. 9,99,100.00 |
| 04.09.06 | LN/2/9/422 | Rs. 7,06,000.00 |
| 04.09.06 | LN/2/9/423 | Rs. 4,97,000.00 |
| 04.09.06 | LN/2/9/424 | Rs. 4,97,000.00 |
| Rs. 48,62,000.00 |
4) The complainant vide letter dt. 20.07.2007 lodged a claim for Rs. 44,57,375/- with the OP and submitted the required documents. The Opposite Party appointed Sh. R.G.Verma, Chartered Accountant as its Surveyor to assess the loss claimed by the complainant bank. The complainant received a letter dt. 31.07.2007 from Sh. R.G.Verma who informed that he has been appointed to assess the loss claimed by the claimant and requested to provide the documents as detailed in the said letter. The said surveyor was appointed by the opposite party with malafide intentions and with oblige motive. The said surveyor had no experience in deciding the nature of claim as lodged by the complainant. It is further claimed that the I.R.D.E.A. is statutory controlling body under which the opposite party is governed. I.R.D.E.A. also approves the names of the surveyor and assessors according to their qualifications. To the further claimed that the Sh. R.G.Verma was neither approved by the I.R.D.E.A. nor he had the requisite qualifications. However the complainant gave the requisite documents and informations as desired by him from time to time as detailed below.
5) Copy of letter dt. 08.08.2007 wrote by the complainant to Sh. R.G.Verma and submitted the required documents as asked by him. The complainant bank vide letter dt. 31.10.2007 submitted copy of the charge sheet submitted by the Police in the Court.
6) Copy of letter dt. 06.11.2007 of Sh. R.G.Verma who assessed the loss at Rs. 35,22,000/-. Sh. R.G.Verma stated in the report that though the loss comes to Rs. 35,22,000/-, the basic sum insured is Rs. 15,00,000/-, and thus assessed the loss at Rs. 15,00,000/-.
7) The complainant claimed that Sh. R.G.Verma erred in assessing the loss at Rs. 35,22,000/- as the total loss was Rs. 44,57,375/- and further the assessor had ignored that the value of the policy was Rs. 45 Lac and not Rs. 15 Lac. Thus, the complainant was entitled to a sum of Rs. 44,57,375/-. The complainant further stated that the assessor further erred in observing that the employees were negligent on their part in performing duties due to which the loss occurred and the assessor further erred in holding that the loss is not covered under the policy.
8) The complainant has claimed that claim is covered under the policy and the complainant was entitled to the loss as the words in the Bankers Indemnity Policy in clause (d) clearly provide that the dishonest or criminal act of the employee (s) of the insured with respect to the loss of money and/or securities wherever committed and whether committed singly or in connivance with other. The criminal connivance of the employees of the complainant bank with Sh. Gurdeep Kamnoj is established on record and complainant submitted that the loss is not covered under the exception clause of the policy, but is covered under clause (d) of the policy. Sh. R.G.Verma deliberately and with ulterior motive suppressed the material fact and did not consider the factum of criminal conspiracy among Sh. Ashish Bansal, Gurdeep Kamboj, Sh. Suresh Kumar Gupta, Sh. Lalit Kumar Jain, Sh. Sanjay Gupta and Sh. Mukesh Mittal, to cause wrongful loss to the bank by dishonestly presenting NSCs/KVPs as genuine ones by putting the stamp of the Post Office to show that they were issued by the concerned Post Office, Mauzpur, Delhi and they had created lien in favour of the bank. They had conspired to open the bank account of Sh. Gurdeep Kamboj, whose address was false and wrong by malafidely and knowingly did not follow the mandatory guidelines of sending the letter of thanks with ulterior motive to prevent detection of fake address of Sh. Gurdeep Kamboj. The said employees defrauded the bank to cause wrongful gain to themselves, allowed the money to be transferred from the account No. 704993 (without any authority of account holder which tantamount to cheating, dishonesty, criminal breach of trust) and also in connivance with and being conspirators in allowing Sh. Ashish Bansal to withdraw huge amount from account No. 704993 which was opened with malafide intention to cause wrongful loss to the complainant bank against the guidelines of the bank.
9) The complainant further submitted in its complaint that the loss claimed by the complainant is specifically covered by clause (d) of the Standard Policy. The criminal conspiracy is clearly established by the following facts:
a) The NSCs/KVPs were stolen.
b) They were not issued by the concerned Post Office, Maujpur, Delhi.
c) The conspirators forged the stamp of the aforesaid Post Office to show lien mark in favour of the bank.
d) The address of the account holder was wrong and fake and to suppress this martial fact on record, the bank employees conspired together not to send the letter of thanks and thereby deliberately, knowingly, malafidely and maliciously violated the mandatory guidelines of the bank with the ulterior motive to cause wrongful loss to the bank.
e) The complainant, while issuing the charge sheet, have specifically mentioned that œYou have committed fraud and have committed criminal breach of trust and dishonestly misappropriated the funds with a view to damage the employers business and/ or of properly? and œYou have committed act of misconduct by forging and tempering the documents and records of the employer bank?, and accordingly, F.I.R. No. 279/07 has been registered under Sections 420/ 467/ 468/ 471/ 120B of I.P.C. on 18.04.2007, with the Police Station, Darya Ganj, Delhi and Once FIR has been registered under above sections and a wrongful loss of Rs. 44,57,375/- has been caused by the employees of the insured bank, the loss is covered under the perils mentioned in the Bankers Indemnity Police and the court of competent jurisdiction has taken cognizance of the offense committed by Sh. Ashish Bansal and others.
10) Thus, the complainant has claimed Rs. 44,57,375/- under Policy No. 271600/48/ 2007/238 which was renewed vide Policy NO. 271600/ 48/ 2008/ 278 for Rs. 45,00,000/- and the complainant made representation against the repudiation vide its letter dt. 21.04.2008 but on not receiving any reply from the OP the complainant filed the complaint claiming their in sum of Rs. 44,57,375.00 along with interest @ 18 p.a. from the date of claim till realization and has further prayed for ordering the OP to pay cost and compensation.
11) Registered AD notice was issued to OP, who appeared and contested their case. Both the parties filed their evidence by way of affidavit and led their arguments. File perused.
12) The OP in its written statement stated that the Bankers Indemnity Policy is intended to provide cover for direct loss of money caused by a dishonest or Criminal Act of the Bank Employees. Unless therefore, such an act is clearly established, there cannot be an admissible claim under the policy and in the instant case, the bank officials had not been dishonest but were negligent in doing their duties. They had not verified the address of the account holders. They did not follow the instructions given by the head office of the bank and did not verify the KVP/ NSC issued by the Post Office. The acts of omission or commission indicate only that the complainant bank officials have relaxed the usual rules and regulations in order to accommodate the clients. The purpose could be to provide undue accommodation to the customer which is merely a part of trading accommodation to the customer which is merely a part of trading activity of the insured bank. The charge sheet filed against the accused persons in the present case indicate that loan documents were submitted on behalf of some borrowers who allegedly never visited the banks office for filing up the documents but these were sent to them to be signed at specified places. The charge sheet issued to staff further refers only to lapses in releasing the loans and advances. The losses occurred because of the staff not taking measures as per bank norms while making the advances. The losses resulting from trading are not covered in view of exception œE? of the policy. Further, para œB? of the exception of the policy states that œLosses resulting wholly or partially from any negligence act or omission of the insureds employee? is not covered.
13) The OP further stated in its written statement that in view of the observations made by the surveyor Sh. R.G. Verma in his report dt. 06.11.2007 the insurance company had repudiated the claim of the complainant since the bank staff were negligent on their part and consequently the loss is not covered by the Bankers Indemnity Policy and the claim is not admissible under the terms and conditions of the Policy and further stated that Sh. R.G. Verma, Surveyor in his report dt. 06.11.2007 had made the following observations regarding the claim of the complainant.
a) The loss has taken place due to bad debts which is not covered in the policy.
b) The borrowers or guarantors are traceable, as such bank can file suit or recover from the amount of advance.
c) Giving loans may be termed as credit facility to borrowers. This is not covered under policy, Para œc? of policy. It may be noted that all losses due to credit facilities are not covered in the policy.
Para œc? of banker: Indemnity reads as follows:-
œ?By reasons of payment made in respect of bogus or fictitious or forged or raised cheques and/or drafts and/or genuine and/ or travelers cheque and/or gift cheques and/or drafts and/ or fixed deposit receipts (excluding bills of discount and other credit facilities) issued by the insured bearing forget endorsement or the establishment of any credit to any customers on faith of such documents whether received over the counter or through the clearing house or by mail.? As such the claim may be not considered under Para œc to the policy. It is not a case of dishonesty by bank staffs. Para œD? of dishonestly of the banker indemnity policy reads as follows:
By reasons of the dishonest or criminal act of the employee(s) of the insured with respect to the loss of money and/ or securities wherever committed and whether committed singly or in connivance with others?.
14) The loss is neither covered under Para œd? of dishonesty to the policy. The advances were given genuinely. As such it is not a case of dishonesty. The concerned branch employees had been suspended / charge sheeted on account of lapses in releasing the loans/ advances causing loss to bank by not taking measures as per bank norms while making advance. This can not be termed as dishonesty but it is lapse on the part of the bank staff.
15) The OP further stated in their written statement that endorsement on the policy was made on 26.09.2006 whereby the basic sum insured was Rs. 15,00,000/-.
16) We have heard Sh. P.K. Aggarwal, counsel for the complainant and Ms. Neerja Sachdeva, counsel for the Opposite Party and have carefully gone through the material on record.
17) The argument advanced by the counsel for the opposite party that the claim is not covered under clause (d) of the terms and conditions of the policy does not hold good. In this connection our attention has been drawn on the FINAL RECOMMENDATION IN PARA 4.12 of the report of the Sh.R.G.Verma relied upon by the opposite party, which inter-alia states that œIf the insurers have to pay the claim due to any reason whatsoever they may pay a sum of Rs. 15 Lacs as per Paras 4.10 of our report.?
18) Further the words in the Bankers Indemnity Policy in clause (d) clearly provide that the dishonest or criminal act of the employee(s) of the insured with respect to the loss of money and/or securities wherever committed and whether committed singly or in connivance with other are covered and criminal connivance of the employees of the complainant bank with Sh. Gurdeep Kamnoj is established on record. The factum of criminal conspiracy amount Sh. Ashish Bansal, Gurdeep Kamboj, Sh. Suresh Kumar Gupta, Sh. Lalit Kumar Jain, Sh. Sanjay Gupta and Sh. Mukesh Mittal, to cause wrongful loss to the is proved by the fact that these persons dishonestly presented NSCs/KVPs as genuine ones by putting the stamp of the Post Office to show that they were issued by the concerned Post Office, Mauzpur, Delhi and they had created lien in favour of the bank. They had conspired to open the bank account of Sh. Gurdeep Kamboj, whose address was false and wrong by malafidely and knowingly did not follow the mandatory guidelines of sending the letter of thanks with ulterior motive to prevent detection of fake address of Sh. Gurdeep Kamboj.
19) Further the said employees defrauded the bank to cause wrongful gain to themselves, allowed the money to be transferred from the account No. 704993 (without any authority of account holder which tantamount to cheating, dishonesty, criminal breach of trust) and also in connivance with and being conspirators in allowing Sh. Ashish Bansal to withdraw huge amount from account No. 704993 which was opened with malafide intention to cause wrongful loss to the complainant bank against the guidelines of the bank. We have also perused the F.I.R. No. 279 registered under Section 420, 467, 468, 471 120 B. Pursuant to F.I.R. Sh. Ashish Bansal was also arrested. The court of criminal jurisdiction has also taken the cognizance of the offence committed by Sh. Ashish Bansal and Ors. Thus we hold that the claim of the complainant is covered under clause (d) of the terms and conditions of the policy and OP had been deficient in providing services to the complainant for not passing the genuine claim of the complainant.
20) The complainant has claimed the sum of Rs. 44,57,375/- alongwith interest @ 18% from the date of claim on the basis of policy No. 271600/48/2007/238 for the period 11.07.2006 to 10.07.2007. The loss occurred during this period. The counsel for the opposite party has argued that pursuant to endorsement, schedule issued separately dt. 26.09.2006 in which the basic sum insured under the policy was reduced to Rs. 15 Lac. Thus we hold that the liability of the opposite party under the policy was to the tune of Rs. 15 Lac and not Rs. 45 Lac and the complainant is entitled to Rs. 15 Lac alongwith interest @ 10% from the date of claim i.e. 20.07.2007 till payment.
21) Taking overall view of the case we partly allow the complaint and direct the opposite party to pay to complainant a sum of Rs. 15 Lac (Rupees Fifteen Lac) alongwith interest @ 10% from the date of claim i.e. 20.07.2007 till payment. Cost of the complaint as prayed by the complainant is assessed to Rs. 20,000/- which shall also be paid by the OP to the complainant. The order shall be complied with by the opposite party within 30 days from its receipt.
22) If OP fails to comply with the above orders, the complainant shall be at liberty to approach this Commission u/s 25/27 of Consumer Protection Act 1986.
23) Copy of the order be made available to the parties free of cost as per law and case file be consigned to record room.