M/S. Jeevee Exim vs NEW INDIA ASSURANCE CO. LTD.

M /s. Jeevee Exim, the complainant, a partnership firm, obtained an insurance policy from New India Assurance Co. Ltd., in order to cover the risk of its jewellery business for the first time, for the period of one year, from 12.08.1999 to 11.08.2000. The policy was renewed for two subsequent years. It is alleged that the OP did not furnish the part of the policy containing the terms and conditions.

ON 24.11.2001, the complainant gave various kinds of diamonds to their broker, Mr.Jyotin Bhatt, in the usual and normal course of business, to show it to the customers. This is the usual practice in the diamonds market in Mumbai that the goods are given to the broker to sell the same to the customers. The broker shows the diamonds to the customers. Mr. Jyotin Bhatt gave receipt of jewellery, copy of which is placed on record as Ex.B. The details of the jewellery were also mentioned there. Mr. Jyotin Bhatt approached and met one, Mr.Amit Kapoor, who informed Mr.Jyotin Bhatt that he had good contacts with customers at Banaras, Delhi and Kolkata and they could do better business there. Thereafter, they arrived at Banaras, on 06.12.2001. They stayed at Hotel Ganges. Thereafter, Mr.Amit Kapoor told Mr. Jyotin Bhatt that there was time for opening the market, so they should first go to Kashivishwanath Mandir and Ganga river, and from there, straight to market. They walked towards the market for about 20 -25 minutes near Ganga Ghat called, ''''Dasha Shawamedh Ghat ''''. Mr.Amit Kapoor, finding that they were lone persons there, took chance, pulled down Mr.Jyotin Bhatt on the ground and snatched away/robbed the pouch which contained diamonds and some money. Thereafter, he took to flight in very, very small lane of Benaras. Due to his sudden attack, Mr.Jyotin Bhatt, lost his senses in confusion of having been looted. He was unable to catch hold of Mr.Amit Kapoor due to sudden fall. He tried to search him but in vain. He lodged a report with the police. The said robbery was reported in the Dainik Jagran at Varanasi, on 13.12.2001, vide copy of newspaper cutting, placed on record as Ex. C.

THE matter was reported to New India Assurance Co. Ltd., the opposite party. A Surveyor was appointed. The claim made by the complainant was repudiated on 10.06.2002. The claim was repudiated by virtue of clause 8 of the Policy conditions. It is averred that help was extended to the Surveyor and the details were furnished through letters, Ex. E (colly). The repudiation is vague and unfathomable. The complainant is getting insurance from the opposite party for the last three years, but they never gave that part of the policy containing the terms and conditions of the policy. The complainant sent Advocate ''s letter dated 23.07.2002, its copy, marked as Ex.F, has been placed on record.

IT is alleged that the repudiation by the OP is arbitrary and against the principles of natural justice. The complainant also referred to certain authorities, namely, State of Orissa Vs. Dr. Miss. Binapani Dei, AIR 1967 SC 1299, A.K. Kraipak Vs. Union of India, AIR 1970 SC 150, Ponknanam Traders Vs. Additional ITO, Kottayam, (1972) BITR 508, M/s. Lakshmi Precision Screws Ltd. Vs. Ram Bhagat, 2002 VI AD (SC) 610. Ultimately, this complaint was filed before this Commission on 13.02.2003, with the following prayers : - ''''a. Award a sum of Rs.30,46,555/ - (Rupees thirty lakhs forty six thousand five hundred fifty five only) be passed against the opposite party. b. The Award for interest at 2 % p.a., our bank rate or at such rate as this Hon ''ble Commission deem fit and proper from 07.01.2002, till payment. c. Cost of Advocate and litigation cost (including travelling, lodging and other expenses), be granted at Rs.50,000/ - (Rupees fifty thousand only). d. Such other and further reliefs as this Hon ''ble Commission deem fit and proper and which required to be granted in the interest of justice, be granted ''''.

THE Opposite Party, Insurance Company has contested this case. It repudiated the claim of the complainant on the ground that their case was covered under Exclusion Clause 8 of the Terms and Conditions of the insurance policy. It was averred that as per the terms and conditions of the policy, the claim of the complainant was validly repudiated. Exclusion Clause 8 of the policy reads as under : - ''''Provided always that the company shall not be liable for Under this policy in respect of : Loss or damage occasioned by theft or dishonesty or any attempt there at committed by or where such loss or damage has been expedited or in any way sustained or brought about by : A. any of the insured ''s family members. B. any servant or traveler or messenger in the employment of the insured. C. any customer or broker or brokers customer or angadias, cutter or goldsmiths in respect of the property hereby insured entrusted to them by the insured, his or their servants or agents ''''.

WE have heard the counsel for the parties at length and have gone through their written synopses. The principal argument urged by the counsel for the complainant has two prongs. He contended that the terms and conditions of the policy were never furnished to the complainant. They were not aware of the same. They were also not aware that there is Exclusion Clause No.8. Secondly, Counsel for the complainant has invited our attention towards Exb. ''A '', which is the true copy of the said Schedule of Policy. Exb. ''A '' is a crucial document. Counsel for the complainant has placed heavy reliance on Section II (b) of the said Schedule. It is an admitted fact that this document was furnished to the complainant and according to counsel for the complainant, this document proves their case to the hilt. In order to understand the facts properly, it would be worthwhile to reproduce Clause (a) as well as (b) of Ex. ''A ''. The relevant portion runs as follows : '''' Section II Limit for any one loss a) Property insured excluding cash and currency notes whilst in the custody of the insured, his partners, directors, employees, duly constituted attorneys :Rs.50,00,000 b) Property insured by the insurer excluding cash and currency notes whilst in the custody of brokers or agents or cutters or goldsmiths or stores of diamonds not in regular employment of the insured, whether directly entrusted by the insured or otherwise subject to appropriate documentary evidence being available relating to such entrustment : Rs.1,30,00,000 Premium : Rs.81,000 Warranted that if insured property with any one person specified in Section II of the Schedule exceeds Rs.2 lacs, the same shall be placed in an inbuilt locker of a steel cupboard. But if the property exceeds Rs.10 Lacs it must necessarily be secured in a safe of standard make ''''.

THE Surveyor, in his report also mentioned as under : ''''VI. Observation It has been observed in the present claim that the robbery has been made from the possession of Mr. Jyotin Bhatt (broker) by the sub -broker, Mr. Amit Kapoor who was employed by the main broker Mr. Jyotin Bhatt and disappear. The main broker could not trace the sub -broker and accordingly present claim has been preferred by the insured under Section - II (b) of the Jeweller Block Insurance Policy. It has been further observed that the present claim falls within exclusion clause 8. The contents of exclusion clause 8 is as under : Xxxxxxxx ''''.

INSTEAD of touching the heart of the problem, the counsel for the complainant has just skirted it. He has failed to show that his case falls within Section II of the policy, Ex. ''A ''''. His case, even does not fall within that Schedule. However, first of all, it must be pointed out that the complainant has not come to the Commission with clean hands. The complainant did not state as from which year it had started the business. It also did not state whether they had obtained insurance policy prior to 3 -4 years '' from any other insurance company. It candidly admitted that it had obtained this insurance policy for the last 3 -4 years. The complainant is neither novice nor a gullible person. It did not obtain the policy for the first time. Even if it did not receive the terms and conditions, there is no evidence that it had insisted for the same. The story that it did not receive the terms and conditions of the policy or it had no knowledge about it, is not creditworthy. It ''s story does not just stack up. It, however, stands proved that this case falls within clause 8 of the policy, irrespective of the fact whether it was aware of the same or not. Somebody cannot have solution to his problems if he buries his head in the sand. Most importantly, the case of the complainant does not fall within the four parameters of Section II, quoted above. Although, the complainant has placed heavy reliance on this document, yet, this document does not come to the rescue of the complainant. A proviso appended with the above said clause which clearly, specifically and unequivocally mentions that if the insured property with any person specified in Section II of the Schedule exceeds Rs.2 lacs, the same shall be placed in an inbuilt locker of a steel cupboard. But if the property exceeds Rs.10 Lacs, it must necessarily be secured in a safe of standard make ''''.

THESE ingredients, highlighted above, are conspicuously missing in this case. This is an admitted case of the complainant that the valuable diamonds were kept in a pouch. The possibility of broker Jyotin Bhatt and his companion, Mr.Amit Kapoor, working in cahoots with each other, cannot be ruled out. Had the diamonds been put in a ''safe '' and Mr.Jyotin Bhatt had kept the key with him, it could not have been possible for Mr.Amit Kapoor to snatch away the diamonds. The factual position as stated above is not permitted by any term of the policy. Again, was Mr.Jyotin Bhatt authorized to have a sub -broker? All the assumptions raised by the counsel for the complainant are wet.

UNDER these circumstances, we find that the claim of the complainant was rightly rejected. The complainant ''s attempt to tilt at windmills does not ring the bell. The complaint is, therefore, dismissed. However, there shall be no order as to costs.