NASHIK DIST CENTRAL CO-OP BANK LTD vs ASST DIRECTOR OF INSURANCE

This revision petition has been filed by the petitioner against the order dated 5.8.2010 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ''the State Commission'') in Appeal No. A/09/47 The Asstt. Director of Insurance Vs. The Nashik Dist. Central Co-op. Bank Ltd. by which, while allowing appeal, order of District Forum allowing complaint was set aside.

Brief facts of the case are that the complainant/petitioner obtained policy from OP/respondent for a sum of Rs.5 lakhs for a period of one year from 1.4.2001 to 31.3.2002. On 20.12.2001, one of the customers of complainant, Shri Mahesh Co-operative Bank Ltd., Nashik came for depositing Rs. 5 lakhs which was stolen from the counter and FIR was lodged. Claim was lodged with OP which was repudiated. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that due to violation of terms and conditions of policy, no claim was payable. It was further submitted that FIR has already been registered against employees of complainant bank as well employee of Shri Mahesh Co-operative Bank Ltd., Nashik, so, claim was rightly repudiated and prayed for dismissal of complaint. Learned District forum after hearing both the parties allowed complaint and directed OP to pay Rs. 5 lakhs with interest @ 18% p.a. along with cost of Rs.5,000/-. Appeal filed by OP was allowed by learned State Commission vide impugned order against which, this revision petition has been filed along with application for condonation of delay.

Heard learned Counsel for the parties and perused record.

Two days delay in filing revision petition has already been condoned by the order dated 31.5.2011.

Learned Counsel for the petitioner submitted that as cash was stolen from cabin of complainant after receiving amount, learned District Forum rightly allowed complaint, but learned State Commission committed error in allowing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

Learned Counsel for the petitioner submitted that learned State Commission wrongly observed that amount of Rs. 5 lakhs was not received by the cashier from employee of Shri Mahesh Co-operative Bank Ltd., Nashik, who went away with counter foil without depositing cash. Perusal of English version of FIR depicts that at one stage informant Ramrao Shankarrao Patil, Manager of the Bank stated that employee of Shri Mahesh Co-operative Bank Ltd., Nashik made payment of Rs.5 lakhs by going inside the cabin of cashier Mr. Gaikwad. In last para of FIR it has been mentioned that said amount is not received and he is having doubt that Mr. Gaikwad might have kept said amount somewhere else by concealing, so, report is lodged. Perusal of FIR reveals that there is contradictory statement by the Manager. On one hand he says that payment was received by Mr. Gaikwad and on the other hand he denies receipt of payment of Rs. 5 lakhs by Mr. Gaikwad. In such circumstances, it cannot be held that Mr. Gaikwad as cashier of complainant bank received Rs. 5 lakhs from employee of Shri Mahesh Co-operative Bank Ltd., Nashik. Learned Counsel for complainant has drawn my attention towards entry in day book of 20.12.2001 showing credit of Rs.5 lakhs from Shri Mahesh Co-operative Bank Ltd., Nashik. Merely because entry has been made in day book regarding receipt of Rs.5 lakhs from Shri Mahesh Co-operative Bank Ltd., Nashik, it cannot be held that complainant bank''s employee Mr. Gaikwad received Rs.5 lakhs from Shri Mahesh Co-operative Bank Ltd. looking to the contradictory averment in the FIR.

Even if for the sake of arguments, it is presumed that Mr. Gaikwad received payment of Rs. 5 lakhs, perusal of FIR reveals that Mr. Gaikwad, who was to receive another payment of Rs.20 lakhs from Akola Urban Co-Op Bank asked them to go upstairs for affixing labels of complainant Bank and later on cashier Mr. Gaikwad also went upstairs for directing those persons to affix labels and after returning back did not find Rs. 5 lakhs and counter slip in the cabin. This fact reflects that Mr. Gaikwad was negligent in leaving cash along with pay-in-slip in cabin without keeping cash in safe custody which amounts to negligent act or omission on the part of Mr. Gaikwad. Clause (b) of exceptions of the insurance policy runs as under: "Clause (b):

Losses resulting wholly or partially from any negligent act or omission of the insured employee".

When losses resulting wholly or partially from negligent act or omission of the insured amount has been excluded from coverage of insurance policy, complainant is not entitled to get compensation for alleged theft of Rs. 5 lakhs from complainant''s cashier''s cabin.

I do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed.

Consequently, revision petition filed by the petitioner is dismissed with no order as to costs.