AMBA EXPORTS vs NEW INDIA ASSURANCE COMPANY

THE present complaint is heard ex parte, as the O.P., though given adequate opportunity failed to submit written statements. THE case was declared for ex parte hearing on 12.9.2003. Subsequently O.P. filed M.A. 677/2004 requesting for recalling the decision of ex parte hearing. Same application was decided on 13.2.2004 and it was directed to hear the complaint as ex parte. Accordingly on the date of hearing i.e., on 20.3.2004, O.P. again requested to recall the decision and the same was rejected.

THE factual position of the complaint in brief is as follows: O.P. is a merchant dealing in jewels. He is partner of Partnership firm viz., M/s. Amba Exports situated at M-18/A Flox Chambers, Tata Road No. 1, Opera House, Mumbai-400 004.

Complainant has taken Jewellery Block Policy for an amount of Rs. 1,50,00,000/- bearing No. 112500-46/00/00259 from the O.P. No. 1 for a period from 29.9.2000 to 28.9.2001. The insurance policy covered all property including cash and currency notes of the complainant (Annexure C-1).

ON 24.9.2000 at about 4 p.m. the complainant carried the diamond packet weighing 77.30 Cts. in his right side pocket of the trouser from his office and he wanted to show the said diamonds to one Mr. Lalitbhai Jain for the purpose of demonstrating and exhibiting to the prospective purchaser. He had further added that when he reached at the office of the said Mr. Jain at Bhattwadi, he found to his surprise that the packet of diamond was missing from his pocket. Immediately he tried to search the same packet in the office and elsewhere. He also published a notice, about loss of diamonds, on the notice board of the Association. Subsequently, he filed the complaint about loss of packet of diamond with Dr. D.B.H. Marg Police Station on 27.11.2000. Copy of the F.I.R. is enclosed with english version as Annexure C-2 collectively.

ON 29.11.2001 he lodged the complaint with the O.P. /Insurance Company for Rs. 9,66,250/- against the loss of packet of diamonds, Annexure C-3. Later on Surveyor of Insurance Company visited the premises of the complainant and made inquiries about the claim of the complainant, Annexure C-4 collectively. On 7.9.2001 the O.P. has repudiated the claim of the complainant C-5. Later on complainant had pursued with different authorities of Insurance Company and written to the Company. Finally Insurance Company has repudiated the claim by its letter dated 2.12.2002 Exhibit C-9, indicating the repudiation as follows: "On the basis of claim form, survey report, F.I.R., statement recorded by you, facts mentioned and explained as above constitutes breach of policy condition exclusion Clause 2(b) which may be read as under: ''The Company shall not be liable for under this policy in respect of loss and/or damage to property insured due to mysterous circumstances/disappearance of unexplained reason. In view of above exclusion, your claim was repudiated by Competent Authority and decision of repudiation of claim has been conveyed to you vide our letter dated 7th September, 2001 and 3rd September, 2002 which kindly note."

Ultimately he filed the complaint with the Commission on 26.2.2003 Ex. ''G''. The pleadings of the Advocate and the records submitted by the complainant were studied carefully. It will be necessary to decide the following issue- (1) Whether the complainant is consumer as provided under Consumer Protection Act, 1986. (2) Whether the complainant established any deficiency or unfair trade practice on the part of O.P. (3) Request of the complainant for compensation and damage or mental agony and cost of legal proceedings. All these issues are considered as follows- Point No. 1-There is no doubt that the complainant is consumer as covered under the provision of Consumer Protection Act, 1986. Point No. 2-On going through the relevant complaint and F.I.R. (English version) it is observed as follows-Relevant portion of English version reproduced below (C-2 collectively)- "He informed that on 24.11.2000 at about 16.00 hrs. in the evening to deliver diamonds of 77.30 carrats to Lalitbhai Jain, Renuka Mansion Bhattwadi valued at Rs. 9,66,250/- he took it in a packet from his office and kept in right side pocket of his pants. In his pocket loose coin change were kept. He then went down and on footpath in front of Amrit Trade Centre ate Masala Dosa and from right hand pocket of pants he took out Rs. 26/- and paid, and on noticing that mobile phone was not in pocket, he immediately went back to his office, took back the mobile from office and went straight to Lalitbhai Jain in Bhattwadi. When he put his hands in his pocket the packet of diamonds was not found. On assuming that said packet was lost somewhere he searched for it everywhere but he could not understand as to where it was lost. So, as to where the said packet while taking out money was dropped or lost could not be known, he has come to Police Station today and has informed and recorded a written Jabab/statement."

ON going through the F.I.R. it is observed that there are variations in the statement made in the complaint and F.I.R. about his leaving office with the diamonds packet and reaching the customer Shri Jain. For the sake of convenience, we reproduce paras 4(b) and 4(c) of the complaint- "4(b) The complaint submits that on 24.9.2000 about 4 p.m. the complainant carried the diamond packet weighing 77.30 Ctc. in the right side pocket of his trouser from his office as he wanted to show the said diamond to one Lalit Bhai Jain for the purpose of demonstrating and exhibiting them to the prospective purchasers. (c) The complainant further submits that when he reached at the office of said Lalit Jain at Bhattwadi to the utter surprise and astonish of the complainant he found that the packet of diamonds was missing from his pocket."

AS per complaint it appears that he left office and straightaway reached office of Shri Jain. AS against this the contents of F.I.R. indicate that he deviated his programme and went to a stall on the footpath for eating Masala Dosa. Then he went to his office to pick up the mobile and then left for shop of Mr. Jain and at Jain''s office he realised the packet of diamond was missing. In fact the complainant could have narrated the facts in the complaint also. But we are not aware as to why there is difference in the contents of complaint and F.I.R. It is also observed that either in the pleadings or in any documents the complainant has not contradicted the statement in the F.I.R.

It is further pointed that he kept change, mobile and diamond packet in the same right side pocket of his pant. He also does not say anything whether the diamond packet was with him when he paid the bill of eatables. He also does not say anything about the packet when he went back to his office to collect the mobile phone and left for Mr. Jain''s office. A man of reasonable prudence would not keep all these items in one pocket specially when he was carrying the packet of diamonds. One would not expose himself to the risk by sparing some time in eating on footpath. As a result the issue Nos. 2 and 3 raised hereinabove are decided in negative.

IT is already made clear that the complainant has filed the complaint on 27th November whereas the incident of theft took place on 24th November. He could not satisfactorily explain the delay of 3 days in filing the complaint. The complaint deserves dismissal on this count as well.

THE complainant has referred to one case decided by this Commission (Complaint No. 416/93 reported in I (1994) CPJ on page 849. It is clear from the facts of the case and facts in the present case differs substantially. Hence the authority referred to above by the complainant is not applicable in the present case. The repudiation of the claim by the O.P. as per provision of breach of policy condition exclusion Clause 2(b) (reproduced hereinabove) is fair and reasonable. Hence the order. ORDER 1. Complaint stands dismissed. 2. No order as to cost. 3. Office to furnish copies of the order to the parties.

Complaint dismissed.