ORDER As per Hon'bleShri V.K. Agarwal, President:- 1. This complaint under section 12 read with 17 of the Consumer Protection Act 1986, is filed by the appellant Jila Sahkari Kendriya Bank Maryadit, Bilaspur, (hereinafter called "Cooperative Bank" for short) for recovery and reimbursement of the loss to the tune of Rs. 6,94,805/- under the "Bankers' Indemnity Policy", (hereinafter called "Policy" for short) issued by the opposite party insurer, National Insurance Company Ltd. on account of loss caused to it due to fraud and embezzlement by one. 2. The relevant averments in the complainant stated in brief are that the complainant obtained from the opposite party the policy and paid premium for coverage of risk of item A to E to the extent of Rs. 10,00,000/-, additional insurance and coverage of risk under item A to the extent of Rs. 50,00,000/¬and for additional insurance and coverage of risk for item B to the extent of Rs. 15,00,000/-. It was further averred that one of the employees of the complainant bank, namely Santosh Kumar Dubey who was working as a cashier, committed fraud and embezzlement, resulting in total loss to the complainant bank to the tune of Rs. 9,62,365/-. However, later on, the said employee Santosh Kumar Dubey refunded Rs. 3, 10, 140/- to the complainant bank and thus net amount of loss of Rs. 6,52,225/- remained to be recovered. The complainant intimated the OP insurer about the loss caused to it as above. The OP insurer appointed a surveyor who assessed and reported that Rs. 1,09,100/- were payable towards the said loss under the terms and conditions of the policy. The complainant also averred that the police report was lodged and departmental enquiry was also initiated, against the delinquent employee Santosh Kumar Dubey. It was averred that since loss was caused as a result of fraud committed by the employee of the complainant bank, hence, it was entitled to recover the loss from the insurer, as per the terms of the policy. It was further averred that reimbursement of Rs. 1,09,100/- as assessed by the surveyor does not fulfill the obligation, of the OP insurer, under the said policy. It was prayed in the complaint that the OP insurer be directed to pay to the bank Rs. 6,94,805/- with interest & bonus etc. and compensation be also awarded on account of delay and financial loss caused to the complainant bank. 3. It was prayed in the complaint that the OP insurer be directed to pay to the bank Rs. 6,94,805/- with interest & bonus etc. and compensation be also awarded on account of delay and financial loss caused to the complainant bank. 3. The complaint was resisted by the OP insurer. It was averred that the complainant was entitled to reimbursement only in terms of policy conditions. It was also averred that the surveyor assessed the reimbursable loss to the extent of Rs.1,09,100/- as per the terms and conditions of the policy. It was further averred that the complainant has failed to furnish documents including copies of accounts book of the various depositors, whose amount was alleged to be embezzled as also the final report by the police and the documents relating to the departmental enquiry of the delinquent employee Santosh Kumar Dubey. It was also averred that there was a delay in lodging the report with the police. It was further averred that the complainant bank was negligent in not properly controlling the transactions of the bank and in not following the procedure regarding the deposits. Hence, the complainant was not entitled to any compensation. 4. The submissions of the learned counsel were heard. The contention of learned counsel of the complainant was that the employee Santosh Kumar Dubey practiced fraud and misappropriated total amount of Rs. 9,62,365/-which was handed over to him for being credited in their accounts, by various depositors. It was further submitted that since the said employee later on refunded Rs. 3, I 0, 140/-, the balance of Rs. 6,52,225/- remained to be recovered. It was submitted that since, the bank was put to loss to the above extent on account of fraud and embezzlement by its employee, hence, the complainant was entitled to the reimbursement to that extent, under the policy. It was submitted that surveyor's assessment of loss to the tune of Rs. 1,09,100/-was unjustified and was not acceptable to the complainant bank. 5. As against the above, the learned counsel of the OP insurer mainly relying upon the excess clause mentioned in the proviso to the policy, submitted that the complainant bank was not entitled to recover whole of embezzled amount. The reimbursement was to be made subject to the excess clause of the policy. 5. As against the above, the learned counsel of the OP insurer mainly relying upon the excess clause mentioned in the proviso to the policy, submitted that the complainant bank was not entitled to recover whole of embezzled amount. The reimbursement was to be made subject to the excess clause of the policy. It was submitted that the surveyor and loss assessor Radheshyam Gupta and company Chartered Accountants have taken into consideration the various items alleged to have been embezzled and rightly concluded that Rs. 1,09,100/- was reimbursable by the insurer to the complainant bank, as has been mentioned by the said surveyor and loss assessor in his report dated 25.6.2000. 6. It is not in dispute that Santosh Kumar Dubey was an employee of the complainant bank and had embezzled total sum of Rs.9,62,365/- by committing fraud. It is also clear from the complainant's averments that Rs.3,10,140/- were refunded later on by the said employee Santosh Kumar Dubey; and thus the bank was still at a loss of Rs. 6,62,225/-. 7. The main question that arises for consideration is as to whether the complainant bank was entitled under the terms of policy to the reimbursement of above amount of Rs.6,62,225/- or to the amount of Rs. 1,09,100/- as assessed by the surveyor? 8. In order to consider and decide the above question it would be useful to reproduce the relevant provision of the policy, issued by the opposite party insurer, which reads: "The company hereby agrees to indemnify the Insured to the extent specified hereafter if at any time during the Period of Insurance stated in the Schedule or any specified period in respect of which the Insured shall have paid and the Company shall have accepted and/or the Insured shall have agreed to pay the premium for the renewal thereof the Insured shall discover any direct loss of money and/or securities sustained. A. On Premises: By reason of any Money and/or securities for which the Insured are responsible or interested in or the custody of which they' have undertaken and which now are, or are by them supposed or believed to be or at any time during the periods of insurance may be in or upon their own premises (including Mobile Offices) or upon the premises of their Bankers in any recognized place of safe deposit or lodged or deposited in the ordinary course of business for exchange conversion or registration with the issuers thereof or with any agents of such issuers or with any person employed to procure or manage the exchange conversion or registration thereof being (while so in or upon such premises or so placed lodged or deposited as aforesaid) lost destroyed of otherwise made away with by Fire Riot and Strike Burglary or Housebreaking Theft Robbery or hold-up whether within or without and whether by the employee(s) of the Insured or any other person or persons whomsoever. B. In Transit : By reason of any Money and/or Securities being lost stolen missing misappropriated or made away with whether due to the Negligence or Fraud of the employee (s) of the Insured or otherwise whilst in transit in the hands of such employee(s), such risk of transit to commence from the moment the same is received by the employee on behalf of the Insured and to continue until delivery thereof at destination. C. Forgery or Alteration: By reason of the payment made in respect of bogus or fictitious of fogged or raised cheques and/or draft and/or genuine cheque and/or travelers cheques 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 forged endorsements or the establishment of any credit to any customers on the faith of such documents whether received over the Counter or through the clearing house or by Mail. D. Dishonesty: By reason of the Dishonest or Criminal Act of the employee(s) of the Insured with respect to the loss of money and for Securities where have committed and whether committed singly or inconnivance with other. E. Hypothecated Goods: By reason of Fraud and/or dishonesty by the employee(s) of the Insured in respect of any goods and/or commodities pledged or hypothecated to the Insured and under the Insured's control. E. Hypothecated Goods: By reason of Fraud and/or dishonesty by the employee(s) of the Insured in respect of any goods and/or commodities pledged or hypothecated to the Insured and under the Insured's control. F. Registered Postal Sendings : By reason of loss by Robbery Theft or by other causes not herein excepted whilst in direct transit or intended to be dispatched by Registered Insured Post from the Office of the Insured to the consignee provided that each post parcel shall be insured with the Post Office. Provided always that the company's liability for anyone consignment and/or loss shall be limited to 10% (ten per cent) of the Basic Sum Insured under this policy or Rs. 1,00,000/- (One lakh) whichever is less. G. Appraisers: By reason of Infidelity or Criminal Acts on the part of Appraisers provided that such Appraisers are on the approved list of Appraisers maintained by the Insured and further provided that the Insured shall exercise reasonable precaution and safeguard in the selection and appointment of such Appraisers. Provided always that the Company's liability for anyone loss or all losses during the period of Insurance due to Infidelity or Criminal Acts of each of such Appraisers will be limited to 5% (five per cent) of the Basic Sum Insured under this policy or Rs. 50,000/- whichever is less. H. Janata Agents/Chhoti Bachat Yojna Agents/Pygmy Collectors: By reason of Infidelity or Criminal Acts on the part of the Janata Agents/ Chhoti Bachat Yojna Agent/Pygmy Collectors or persons performing duties of a like nature provided that such agents are regular part-time commercial agent of the bank and are appointed after full scrutiny about their credential guaranteed by two reliable Independent persons subject to the condition that the total liability during the period of insurance in respect of each of such agents will be limited to 5% (five per cent) of the Basic Sum Insured under this policy or 20,000/- whichever is less. The Indemnity granted under this policy in respect of such direct losses will not exceed: (a) the Sum Insured hereby (i) in respect of any loss or losses caused by acts and/or omissions of any employee (s) of the Insured either singly or jointly with other Employee(s) or acts and/or omissions in which such a person is concerned or implicated either as a single act and/or omission or a series of acts and/or omissions during anyone period of insurance. (ii) in respect of anyone casually or event. (b) Subject to (a) above twice the Sum Insured hereby in respect of all losses in anyone Period of insurance. Provisos - (a) Excess: Insured shall bear the first 25% of each loss under items A to E or 2% of the Basic Sum insured whichever is higher, but not exceeding Rs. 50,000/- Each loss in respect of each dishonest or criminal act shall be treated as a separate loss. This excess will however not apply to loss or damage arising out of Fire, Riot & Strike, Burglary and Housebreaking Risks. In respect of items F, G, & G of the Policy (i.e. Registered Postal Sending Appraisers and Janata Agent etc;) the deductible-applicable 9. It would thus appear that the OP insurer had undertaken to indemnify and provide insurance cover to the extent of loss of money or securities etc. caused inter alia by reason of dishonest and criminal act of the employee of the insured with respect to the loss of money wherever committed and whether committed singly or inconnivance with others. In the instant case, as noticed earlier, it is not seriously disputed by the OP insurer that the complainant's employee Santosh Kumar Dubey, dishonestly misappropriated a total sum of Rs. 9,62,365/- and after the refund of Rs. 3,10,140/-later on the bank was still at a loss of Rs.6,52,225/- on account of such dishonest and criminal act of its employee Santosh Kumar Dubey. The averments and material' on record also show that the complainant bank lodged police report against the said bank employee and he is facing criminal trial as well as departmental action on account of misappropriation, embezzlement fraud etc: as above. Infact, the surveyor's report also Clearly accepts the loss as above. Hence, it is established that the complainant bank suffered a loss of Rs. Infact, the surveyor's report also Clearly accepts the loss as above. Hence, it is established that the complainant bank suffered a loss of Rs. 6,25,225/- on account of dishonesty and criminal act amounting to fraud and embezzlement by its employee Santosh Kumar Dubey. 10. The crucial question that now deserver to be considered is as to whether whole of the amount of loss as above is required to be reimbursed or loss to the extent reported by surveyor deserve to be paid by the OP insurer. ? 11. In the above context excess clause contained in the proviso reproduced above is relevant. The reading of the said clause would indicate that it there by provided that the insured shall bear first 25% of each loss under items A to E or 2% of the basic sum insured whichever is higher, but not exceeding Rs. 50,000/-. It was further provided in the above referred excess clause that each loss in respect of each dishonest or Criminal act shall be treated as separate loss. As would be clear from the report of the surveyor and schedule attached therewith, that there were various counts of dishonesty, misappropriation and embezzlement by the employee Santosh Kumar Dubey. "Modus Operandi" adopted by him appears to be that he used to receive amount from various depositors/account holders for being deposited in their accounts with the complainant bank. However, the said employee, instead of crediting the amount so received to the accounts of the respective depositors/Account holders, would misappropriate the same; and would make entry in their pass books without making a proper ledger entry in the accounts of the bank. The said employee would allegedly make entry in the pass book of the concerned depositors, without obtaining any counter signature of the competent officer of the bank. Therefore, every time he misappropriated the amount, the same would be treated as a separate loss. There was thus separate dishonest and criminal act by the delinquent employee Santosh Kumar Dubey with regard to each of such loss. The surveyor has given a schedule detailing the loss and the amount reimbursable by the insurer to the bank. He has arrived at a figure of Rs. 1,09,100/- and has concluded that the said amount is payable under the terms of the policy. 12. The surveyor has given a schedule detailing the loss and the amount reimbursable by the insurer to the bank. He has arrived at a figure of Rs. 1,09,100/- and has concluded that the said amount is payable under the terms of the policy. 12. We have no reason to disbelieve or differ from the assessment made by the surveyor and loss assessor as above. The excess clause of the policy mentioned above clearly protects the insurer to the extent mentioned therein. Hence, the total loss suffered by the bank was not reimbursable under the terms and conditions of the policy, keeping in view the excess clause therein. Since, it appears that OP insurer was always ready and willing to pay to the complainant, the above amount of Rs. 1,09, 100/-, it does not appear that there was any deficiency in service on the part of opposite party/insurer. The complainant is not entitled to recover the amount of Rs.6,52,225/-. Since, there was no deficiency in service; the complainant cannot get any compensation. However, since OP insurer has accepted his liability to the extent of Rs. 1,09,100/-, it would be just and proper to award the said amount in favour of the complainant. 13. Accordingly, it is directed that OP insurer shall pay to the complainant Rs.1,09,100/- (One lakh Nine thousand and One hundred) only. The complainant, shall however be at liberty, to pursue such other legal remedy, under the policy, as it may be entitled to. Order Modified .