Money insurance policy covers ATM cash loss by employee misappropriation if key/passwords with insured's custodians and within 48-hour custody; surveyor report not conclusive; contributory negligence from ad-hoc procedures reduces payout to 75%.

DR. INDER JIT SINGH, PRESIDING MEMBER

1.EDCBAThe present First Appeal (FA) has been filed by the Appellant against Respondent as detailed above, under section 19 of Consumer Protection Act 1986, against the order dated 28.09.2016 of the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the 'State Commission"), in Consumer Complaint (CC) No. 205/2009, inter alia praying for setting aside the order/judgment passed by the State Commission in CC/205/2009.

2. The Appellant was Opposite Party before the State Commission and the Respondent was Complainant in the said CC/205/2009 before the State FA 301 O F 2017 P agel of 18 Commission. Notice was issued to the Respondent on 05.10.2017. Parties filed their Written Arguments/Synopsis on 30.08.2023 (Appellant) and

16.05.2024 & 09.04.2026 (Respondent) respectively.

3.EDCBAThe First Appeal has been filed with a delay of 78 days (as per Registry's calculations). The Appellant has filed IA/2152/2017 for condonation of delay. This IA was allowed vide this Commission's order dated 21.08.2019 and the delay was condoned.

4. The brief facts of the case as presented by the Complainant are that the Complainant/Respondent herein had taken a Money Insurance Policy from the Appellant/Insurance Company for the period from 01.09.2006 to 31.08.2007. On 23.05.2007, the Complainant assigned the work to load and supervise the ATM of HDFC Bank at Shipra Mall Ghaziabad, U.P. to its two employees/custodians, namely, (1) Mr. Vijay Kumar and (2) Mr. Sanjay Raghav (Mr. Rajesh Prasad and Mr. Sanjay Raghav were working as custodians for this ATM, but as Mr. Rajesh Prasad was on leave on this day, in his place another custodian, Mr. Vijay Kumar went for cash replenishment with Mr. Sanjay Raghav on this day). On 24.05.2007 guard of the said ATM was found dead. HDFC Bank officials called the custodians of the Complainant to open the ATM to audit the amount. On audit, it was found that an amount of Rs. 19,03,800/- was short. The Bank informed the same to the Complainant/Respondent. The locks of the ATM machine were intact, no breaking open of the locks or damage to the said ATM machine were found, which confirm that no theft was committed from the said ATM but was a case of mis-appropriation of amount by the employees of the custodians of the complainant as the combination numbers to open the lock of the ATM was only with the said custodians. On receiving the intimation of the alleged loss from the Complainant, the Insurance Company appointed a surveyor/investigator Mr. R.G. Varma for investigation and assessment of loss. After receiving the report of Surveyor, the Insurance Company repudiated the FA 301 O F 2017 Page 2 of 18 claim on 07.03.2008 on the ground that i) loss occurred from the ATM machine after cash was deposited, and the policy does not cover ATM cash contents which means cash kept in the ATM are not covered in the policy, ii) the insured has not taken reasonable steps to safeguard/handling the ATM properly. Aggrieved by the repudiation of claim, the Complainant filed complaint before the State Commission.

5. The State Commission vide its order dated 28.09.2016, while allowing the Complaint, passed the following order:

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