NEEL KAMAL PAPER MILLS PRIVATE LIMITED vs NEW INDIA ASSURANCE COMPANY LIMITED

APPELLANT by Shri Seth, Advocate. Respondent-Insurance Company by Mr. Kamal Khata, Advocate. Heard the arguments advanced on behalf of the parties by their Counsels. The few facts are that the appellant-original complainant had taken out a Marine Insurance Policy No. 21111300/17887 for Rs. 20 lakhs effective from 11.6.1991 to 10.6.1992 to cover the consignment of goods from Tarapor/Bombay to any place of India. On 7.7.1991, the appellant had despatched a truck load of goods worth Rs. 1,97,886.69 Ps. by Truck No. MWU-2062 under Lorry Receipt No. 1435 dated 7.7.1991 of Mittal Carriers. Unfortunately, the said truck met with an accident on the Eastern Express Highway, 20 kms. South of Manohar towards Bombay. The Insurance Company appointed J.D. Engineer (Surveyors) Private Limited to assess the damage to the consignment of goods due to aforesaid accident. The Surveyors carried out the survey on 8.7.1991 and assessed the loss at Rs. 1,16,526/-. The report to that effect was submitted on 15.7.1991. The appellant preferred the claim on 24.7.1991. The Insurance Company thereafter appointed one M/s. Mulchand M. Nagda as Investigator. The said Investigator inspected all the relevant books, challans, excise gate passes, sale registers, etc and, submitted the report. The Insurance Company by its letter dated 30.12.1992, sought clarification from the appellant about the non-declaration of the consignments during the dates as required under the open policy clauses. The appellant-complainant thereafter clarified and sought for final adjudication. To this, the respondent-Insurance Company by its letter dated 28.5.1993, declined the claim and thus, repudiated the same,

THE learned Advocate for the appellant has heavily relied on the terms of the insurance policy, which is on record. THE copy is not disputed by the learned Advocate for the Insurance Company, but he has submitted that the conditions about the open policy clause were annexed to the original policy and as per that condition, every consignment had to be reported when despatched by the insured. THE same was not done inspite of the fact that various despatches were sent and one of the despatches was one referred in the complaint. Having committed this breach, the complainant was not entitled to prefer the claim against the insurance policies. The learned Advocate for the appellant has drawn our attention to the original policy, copy of which is on record, that in the clause Special Conditions and Warranties, it is stated that Inland Transit Clause ''A'' SRCC Clause attached. One xerox copy of the other policy has been shown to us, wherein there is specific reference of this. This means that when open policy clause was inserted, it was specifically mentioned in the policy. It is clearly not done in this case and we find that the learned Advocate for the Insurance Company tried to defend the claim of the Insurance Company by relying upon pieces of evidence. He has stated that in the insurance policy itself in the column, ''Subject matted insured'', there is a reference-limit per Botton Rs. 5,00,000/-. According to him, reference to each consignment amounting to Rs. 5,00,000/- shall have to be intimated to the Company and that is what precisely contemplated under the open policy clause. We feel that insurance policy is a concluded contract and the terms and conditions have to be specifically mentioned in the policy. Open policy clause does not find place in the terms and conditions and we are not prepared to indicate this clause on inference on the basis of the submission made by the learned Advocate for the Insurance Company.

He has also drawn our attention to the letter sent by the insured on 7.8.1991. The caption is Marine Open Policy No. 21111300/17887. The number of the policy is not in dispute, but by using the word-open policy, the learned Advocate states that even the insured thought that it was an open policy. In our view, this is clearly an inadvertent mistake, because when the original policy does not contain the open policy clause, we do not wish to force to this inclusion on the insured on the basis of the submission made by the learned Advocate for the Insurance Company. The long and short is that open policy clause was not part and parcel of the policy and the claim is sustainable.

THE learned Advocate has also drawn our attention to the order of the District Forum, wherein the claim was dismissed because the claim has been preferred after two years. THE limitation has been the main bane to the claim of the complainant. To this, the learned Advocate for the complainant has relied on the judgment of the Calcutta High Court reported in I (1993) ACC 481, in the case of Rajendra Kumar Arya v. New India Assurance Company Limited. THE High Court has been pleased to lay down the ratio that it is only when, refusal of the claim, or rejection of the Arbitrator or repudiation from the date of disclaimer, the limitation would start. The learned Advocate for the appellant has drawn our attention to the letter dated 28.5.1993 and it is in this letter, that the claim has been repudiated. If the limitation is reckoned from this time, the claim is within limitation. We, therefore, feel that the claim of the complainant has to be allowed. The loss has been assessed at Rs. 1,16,526/-. We feel that the appellant is entitled to this loss. The appellant shall be also entitled to interest @ 15% from the date of the complaint till actual payment. We further find that the appellant is also entitled to cost of Rs. 5,000/-. Accordingly, we pass the following order : ORDER "The appeal is allowed. The order of dismissal passed by the District Forum, Bombay is set aside. The complaint is allowed. The Insurance Company shall pay Rs. 1,16,526/- with 15% interest thereon from the date of the complaint till actual payment, plus cost of Rs. 5,000/- to the complainant.

Appeal allowed.