National Consumer Disputes Redressal
M/S. Anjaneya Jewellery vs New India Assurance Co. Ltd. & 2 Ors. on 21 September, 2021
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1094 OF 2018 1. M/S. ANJANEYA JEWELLERY ...........Complainant(s) Versus 1. NEW INDIA ASSURANCE CO. LTD. & 2 ORS. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER
For the Complainant : For the Complainant : Ms. Anubha Aggarwal, Advocate For the Opp.Party : For the Opposite Parties : Mr. Salil Paul, Advocate
Mr. Sahil Paul, Advocate
Dated : 21 Sep 2021 ORDER
R.K. AGRAWAL, J., PRESIDENT
M/s Anjaneya Jewellery Represented by its Proprietor Mr. Venkata Rao Vadlamudi (hereinafter referred to as 'the Complainant') has filed the present Consumer Complaint under Section 12(1)(a) of the Consumer Protection Act, 1986 (for short "the Act") against The New India Assurance Co. Ltd. (hereinafter referred to as Opposite Party Insurance Company).
According to the Complainant, facts of the case are that the Complainant, who is running Jewellery business, proposed to conduct an Exhibition cum Sale in various cities in USA from June 2015 to August 2015.The Complainant approached the Opposite Party Insurance Company for obtaining Insurance Cover for protection of the Jewellery Articles during the tour period.It is stated that the Insurance Officials filled the Proposal Form for 'the Special Contingency Insurance Policy' and obtained the Complainant's signature thereon and received the premium of ₹2,49,159/- for issuing Insurance Policy having a sum assured of ₹8,74,24,110/-.The Opposite Party Insurance Company issued 'Package Insurance Policy' No. 62070146152400000008 covering the risk for the period 27.06.2015 to 15.08.2015.After the closure of the Exhibition event in Dallas on 26.07.2015, the Complainant kept the Jewellery in four suitcases and put the said suitcases in a self-driven Rented Car, locked it and parked the Car before his Cousin's Apartment for taking dinner. It was stated that the Car was under their watch.It is alleged that the three suitcases out of four were stolen from the said Car by breaking the Car's rear glass.Incident was reported to the local Police at Irving TX, USA and an FIR was registered.The Opposite Party Insurance Company was also informed about the incident.The Opposite Party Insurance Company appointed Cunningham Lindsey International, Insurance Surveyors and Loss Assessors Pvt. Ltd. to assess the loss.Requisite documents were provided.A Claim was lodged with the Opposite Party Insurance Company for reimbursement in Terms of the Insurance Policy taken by the Complainant.The Opposite Party Insurance Company repudiated the Claim of the Complainant vide letter dated 30.09.2016 citing the following policy Conditions:-
"a. The coverage against burglary / theft is excluded from the loss of unattended vehicles/places.
b. Policy contains another special Condition that "beyond the hours of the client visits, the Jewellery should be kept in a safe of standard type vault and be guarded by armed security person round the clock, i.e., 24 hrs."
It is the case of the Complainant that he has not received any Terms and Conditions with the Policy Cover. Alleging Deficiency in Service and Unfair Trade Practice on the part of the Opposite Party Insurance Company, the Complainant filed a Consumer Complaint before this Commission seeking the following reliefs:-
a. Direct the Opposite Parties to pay the Claim of ₹5,30,80,617/- to the Complainant payable under the policy with interest @ 15% p.a. from the date of filling of the Claim till the date of realization.
b. Direct the Opposite Parties to pay ₹ 5,00,000/- towards expenses incurred by the Complaint;
c. Direct the Opposite Parties to pay ₹10,00,000/- towards compensation for the mental agony and the financial losses suffered by the Complainant not only for repudiating the Claim but also for issuing a defective Policy;
d. Direct the Opposite Parties to pay punitive damages to the Consumer Welfare Fund or Consumer Legal Aid Account for the deficiency of service and unfair trade practices adopted by them right from the stage of giving Proposal Form of one policy, till the stage of issuance of Policy of another totally different one from that of the Proposal and still thereafter for citing unreasonable ground in rejecting the Claim."
After hearing the learned Counsel for the Complainant and perusal of material on record, vide Order dated 22.05.2018, the Complaint was dismissed in 'limine' in following Terms:-
"3. The contention of the learned counsel for the Complainant is that only a two page policy schedule (available on page no. 42 & 43 of the paper-book) was provided to them by the insurer and therefore, the Complainant was never aware of the Terms and Conditions/Exclusions on the basis of which the Claim has been repudiated. On being asked as to how the policy schedule available on page no.42-43 of the paper-book was received by the Complainant, the learned counsel submits that the same was left in the office of the Complainant without any forwarding letter and without any acknowledgment being taken. A perusal of the aforesaid policy schedule clearly shows that the policy was subject to package insurance policy clauses attached therewith. This would mean that the policy clauses were actually attached to the aforesaid policy schedule. If the said clauses were not attached thereto, as is Claimed by the Complainant, it either ought not to have accepted the policy schedule or it ought to have at least immediately written a letter to the insurer stating therein that no policy clauses were attached to the policy schedule received by them. It is unnatural for a person obtaining such a policy to remain silent on receiving the policy schedule without policy clauses when the policy schedule expressly states that the said clauses were attached thereto. Therefore, I am unable to accept the contention that the policy clauses were not attached to the policy schedule received by the Complainant.
4. One of the Exclusion contained in the policy excluded burglary/theft from unattended vehicles or places. It is an admitted position that the vehicle in which the suitcases containing jewellery was parked unattended and unguarded by armed security person at the time the theft took place, though the case of the Complainant is that the aforesaid period was only one hour. Even if the said period was only one hour, that would be of no consequence since the vehicle was unattended at the time the theft took place. The second policy Condition required the insurer to keep the jewellery in a safe of standard type vault and guarded by armed security person round the clock i.e. 24 hours, beyond the hours of the client visits. Admittedly, it was after closure of the visiting hours of the clients that the jewellery was allegedly kept in the Car parking outside the apartment. The Complainant therefore, contravened also the above referred Condition of the insurance policy by not keeping the jewellery in a safe of standard type vault and guarded by armed security person round the clock.
5. The investigator Mr. James Luker had the following say with respect to the alleged theft:
"I find it odd and unreasonable that the victims left the suite cases that contained the jewellery in the vehicle, even for 1 minute let alone an hour as the original report explains. It's uncharacteristic of them to do so considering the precaution they took during the event and afterwards, which is explained above and subsequently raises my suspicion, as I cannot rationalize that any of the victims would ever think that leaving 1.3 million dollars' worth of jewellery inside an unoccupied vehicle is a good idea at any time or anywhere."
6. The learned counsel for the Complainant submits that the Complainant had proposed to take a Special Contingency Insurance Policy and the information available on the website does not contain the Conditions on the basis of which the Claim had been repudiated and even the policy provided to the Complainant was different from the policy which it wanted to take. If this is so, the Complainant ought to have rejected the policy schedule immediately after it was received by it. The failure of the Complainant to take any such step clearly indicates that the plea taken by it is just an after-thought in order to support the Claim. No reliance on the said plea therefore, can be placed."
Being aggrieved from the Order dated 22.05.2018 passed by this Commission, the Complainant approached the Hon'ble Supreme Court.The Hon'ble Supreme Court vide Order dated 07.03.2019 in Civil Appeal No. 6878 of 2018, remanded the case to this Commission by observing as under:-
"11. There is no dispute with the legal proposition urged by the learned Counsel for the respondents in the light of amendment made in Section 13 of the Act.
12. In other words, the Commission does have the jurisdiction to dismiss the complaint in limine and decline its admission without notice to the Opposite party. However, such jurisdiction to dismiss the Complaint in limine has to exercised by the Commission having regard to facts of each case, i.e., in appropriate case.
13. As held above, the facts of the case at hand do not appear to be of the nature, which deserved the dismissal of the appellant's complaint in limine.
14. In view of the foregoing discussion, we allow the appeal, set aside the impugned order, admit the appellant's complaint under Section 13 of the Act and grant one month's time to the respondents to file their reply to the complaint to enable the Commission to decide the complaint on its merits in accordance with law uninfluenced by any observations made in the impugned order as also in this order.
15. Indeed, having formed an opinion to remand the case in the light of our observation made supra, we did not consider it apposite to set out the facts in detail and nor consider it appropriate to make any observations on factual aspects else it would cause prejudice to the parties while prosecuting their case before the Commission on merits."
On remand, the Opposite Party Insurance Company filed its Written Version and stated that the Insured's basic requirement is that he should have acted in a Careful, prudent and vigilant manner but in the present case the Complainant had failed to do so.The Complainant had put the Jewellery items in suitcases and kept them in a Rented Car which was not protected as per Terms of the Policy, therefore, the Claim of the Complainant falls under the Exclusion Clause, which reads as under:-
"Loss from unattended Vehicles/Places.
Beyond the hours of the client visits, the Jewellery to be kept in a safe of standard type vault and be guarded by armed security person round the clock, i.e., 24 hours"
The Surveyor, Cunningham Lindsey International, Insurance Surveyors and Loss Assessors Pvt. Ltd., also mentioned in its Survey Report dated 23.05.2016 about the negligence of the Complainant to have left diamonds bags unattended in a Rented Car. In response to the Complainant's contention that the vehicle was not left unattended at the time of the loss and the Complainant was keeping an eye on the Car, it was stated that if this was to be believed, then the theft would not have occurred. After receiving the Surveyor's Report and scrutinizing all the documents pertaining to the Complainant's Claim, they repudiated the Claim of the Complainant as it did not fall within the ambit of the Insurance Policy. There was no Deficiency in Service or Unfair Trade Practice on their part. They prayed that the Consumer Complaint be dismissed with cost.
We have heard Ms. Anubha Aggarwal learned Counsel for the Complainant, Mr. Salil Paul, learned Counsel for the Opposite Party Insurance Company and perused the material available on record.
Ms. Anubha Aggarwal, learned Counsel for the Complainant submitted that the Complainant had signed on the Proposal Form of Special Contingency Insurance Policy but the Opposite Party Insurance Company provided him a different Package Policy.It was also submitted that only the Policy Schedule was provided to them by the Opposite Party Insurance Company.Terms and Conditions were not provided to them.Therefore, they were never aware of the Terms and Conditions/Exclusions on the basis of which the Claim has been repudiated.It was further submitted that only after filing a Complaint with IRDA, the Opposite Party Insurance Company provided them Copy of Surveyor Report and Repudiation Letter.It was also submitted that the USA Police reports conclusively hold that it was a case of 'theft' and, therefore, it is duly covered under the Policy.Rejecting a lawful claim of the Complainant, is a clear case of Deficiency in Service on the part of the Opposite Party Insurance Company.It was prayed that the Complaint be allowed and the Reliefs as sought under the Prayer Clause of the Complaint be awarded.
In support of her contentions, Ms. Anubha Aggarwal, learned Counsel for the Complainant has relied upon the following decisions of the Hon'ble Supreme Court:-
(a) Bharat Watch Company vs. National Insurance Co. Ltd. [2019 (6) SCC 212];
(b) Modern Insulators Ltd. vs. Oriental Insurance Co. Ltd. [2000 2 SCC 734];
(c) New India Assurance Co. Ltd. vs. Paresh Mohanlal Parmar [2020(2) ICC 19] Mr. Salil Paul, learned Counsel for the Opposite Party Insurance Company submitted that the Opposite Party Insurance Company did not have a readymade Insurance Policy for the Covers sought by the Complainant.The special type of Insurance Policy was tailored to cover the Risk of the Complainant's Jewellery.Keeping in view the specific needs of the Complainant, they issued Special Contingency Policy Proposal Form to avoid collecting Proposal Forms for each of the sets of Insurance Cover.They issued Package Policy to suit the specific needs of the Complainant.The Policy was handed over to the Office of the Complainant on 27.06.2015.As per version of the Complainant he left on 26.06.2015 itself, therefore, he cannot allege that the Terms and Conditions were not attached to the Package Insurance Policy.It is an afterthought.The copy of the Terms and Conditions of the Insurance Policy were handed over and also mailed to the Complainant.It was further submitted that the Complainant should have acted in a Careful, prudent and vigilant manner but in the present case he failed to do so. The Complainant had put the Jewellery items in suitcases and kept them in a Rented Car and left the Car unattended, therefore, the Claim of the Complainant falls under the following Exclusion Clause:-
"Loss from unattended Vehicles/Places.
Beyond the hours of the client visits, the Jewellery to be kept in a safe of standard type vault and be guarded by armed security person round the clock, i.e., 24 hours."
It was also submitted that in its Surveyor Report, M/s. Cunningham Lindsey, International Insurance Surveyors & Loss Assessors Pvt. Ltd. have clearly stated that the Investigation by CLIP-US clearly certifies that the "the armed security arrangement was only upto the exhibition centre/venue and not for off premises. No further security arrangements were made by the Insured during their travel to their Cousin's residence and thereafter. Hence, the Jewellery kept in the suit-cases lying the trunk of the vehicle was not protected as required under the Policy Condition. In lieu of failure at the end of the insured on both the above points/policy Conditions the insurer's liability does not exist in our opnion." Thus, the Complainant breached the Terms and Conditions of the Insurance Policy. The Claim falls under the Exclusion Clause and therefore, not payable by the Insurance Company.The Opposite Party Insurance Company has not committed any error in repudiating the Claim of the Complainant.There was no Deficiency in Service on their Part.In support of his contentions, Mr. Salil Paul, learned Counsel for the Opposite Party Insurance Company has relied upon the following decisions of the Hon'ble Supreme Court:-
(a) Industrial Promotion & Investment Corporation of Orissa Ltd. vs. New India Assurance Co. Ltd. and Anr. [IV (2016) CPJ 11 (SC)];
(b) Export Credit Guarantee Corporation of India Ltd. vs. Garg Sons International, [II (2013) CPJ 1 (SC)];
(c) Suraj Mal Ram Niwas Oil Mills (P) Ltd. vs. United India Insurance Company [IV (2010) CPJ 38 (SC)];
(d) United India Insurance Co. Ltd. vs. Harchand Rai Chandan Lal, [IV (2004) CPJ 15 SC].
The learned Counsel, therefore, prayed that the Consumer Complaint be dismissed with cost.
It is not in dispute that the Complainant had filled up Special Contingency Insurance Proposal Forum on 26.06.2015 and submitted the same with the Opposite Party Insurance Company on that very day itself.However, the Opposite Party Insurance Company had issued the Insurance Cover for Package Insurance Policy, which covered the risk of Fire, Burglary, Transit Damage.The said Policy was issued on 27.06.2015, i.e., after the Complainant had left for USA on 26.06.2015.The Policy covered the period from 27.06.2015 (12:03:22 PM) to 15.08.2015 (11:59:59 PM).The theft took place on 26.07.2015 when the Complainant had parked the Car containing the four Suitcases of the insured Gold Jewellery in front of his Cousin's Apartment for taking dinner.The three Suitcases out of the four Suitcases were stolen from the said Car by breaking the Car's rear glass.The incident of theft was reported to the Local Police at Irving TX, USA and an FIR was also registered.The Opposite Party Insurance Company was also informed about the incident.The Opposite Party Insurance Company had appointed Cunningham Lindsey International, Insurance Surveyors and Loss Assessors Pvt. Ltd. as the Surveyor, who mentioned in the Survey Report dated 23.05.2016 about the negligence of the Complainant to have left the Suitcases unattended in a Rented Car. Relying upon the Surveyor's Report, the Opposite Party Insurance Company repudiated the Claim on the ground of the Exclusion Clause relating to "Loss from unattended Vehicles/Places. Beyond the hours of the client visits, the Jewellery to be kept in a safe of standard type vault and be guarded by armed security person round the clock, i.e., 24 hours". The Copy of the Surveyor's Report and the Repudiation Letter was provided by the Opposite Party Insurance Company to the Complainant only after filing of the Complaint with IRDA. It is also the case of the Complainant that the Opposite Party had not provided the Terms and Conditions of the Special Package Policy to the Complainant and, therefore, the Complainant was not at all aware about the Exclusion Clause which has been made the basis of repudiating the Claim.
In the terms and conditions which were provided to the Complainant by the Opposite Party Insurance Company regarding Special Contingency Policy alongwith the Proposal Form, the Exclusion specified therein are as follows:-
"1. War & allied perils
2. Nuclear Risks
3. Overloading or Strain
4. Loss or damage occurring while being used for racing or pacemaking
5. Consequential loss, depreciation, wear & tear or mechanical breakdown."
In All Risk Insurance Policy which is given by the Opposite Party Insurance Company, the Exclusions are specified as under:-
"The Company shall not be liable in respect of:-
1. Damage caused by any process of cleaning, dyeing or bleaching, restoring, repairing or renovation or deterioration arising from wear and tear, moth, vermin, insects or mildew or any other gradually operating clause.
2. Breakage, Cracking or Scratching of Crockery, Glass, Cameras, Binoculars, Lenses, Sculptures Curios, Pictures, Musical Instruments, Sports, Gear, and similar articles of brittle or fragile nature, unless caused by fire or accident to the means of conveyance.
3. Loss or damage caused by mechanical or electrical derangement/breakdown of any article unless caused by accidental external means.
4. Over-winding, denting or internal damage of watches and clocks.
5. Loss or damage to Money, Securities, Manuscripts, Deeds ,Bonds, Bills of Exchange, Promissory Notes, Stocks or share Certificates Stamps and Travel Tickers or Travellers Cheques, Business books or documents.
6. Theft from any car except car of fully enclosed saloon type having at the time all the doors, windows and other openings securely locked and properly fastened.
7. Loss or damage whether direct or indirect arising from War, War-like operations, Act of Foreign Enemy, Hostilities (whether war be declared or not) Civil War, Rebellion, Insurrection, Civil Commotion, Military or Usurped Power, Seizure, Capture, Confiscation, Arrests, Restraint and Detainment by the order of any Government or any other authority.
8. Any loss or damage arising through delay, detention or confiscation by Customs or other authorities.
9. (a) Any loss, destruction or damage to any property whatsoever or any loss or expense whatsoever, resulting or arising therefrom or any consequential loss and any legal liability of whatsoever nature, directly or indirectly caused by or contributed to by or arising from lonising, radiation or contamination by radioactivity from any sources whatsoever.
(b) Any loss, destruction, damage or Legal Liability directly or indirectly caused by or contributed to by or arising from Nuclear Weapons material.
10. Consequential loss or legal liability of any kind.
11. Loss or damage due to or contributed to by the Insured having caused or suffered anything to be done whereby the risks hereby insured against were unnecessarily increased.
12. Loss or damage due to or contributed to by Terrorism and Sabotage activities.
In any action suit or other proceedings where the Company alleges that by reason of the above provisions any loss or damage is not covered by this insurance, the burden of proving that such loss or damage is covered, shall be upon the Insured."
According to the Opposite Party Insurance Company, they did not have a readymade Insurance Policy for the covers sought by the Complainant and the Special Type of Insurance Cover was tailored to cover the Risk of the Complainant's Jewellery and they issued Special Contingency Policy Proposal Form to the Complainant and issued Package Policy to suit the specific needs of the Complainant.That being the position, it cannot be said that in the Special Contingency Insurance Policy, which was to be issued, there was any clause for excluding the Claim of loss from unattended vehicles/places to the following effect which has been made the basis for repudiating the claim of the Complainant:-
"Loss from unattended Vehicles/Places.
Beyond the hours of the client visits, the Jewellery to be kept in a safe of standard type vault and be guarded by armed security person round the clock, i.e., 24 hours"
The Exclusion Clauses of the Special Contingency Policy as also All Risk Insurance Policy did not contain any specific Terms and Conditions or Exclusions as has been made the sole basis for repudiating the Claim by the Opposite Party Insurance Company.In the Special Contingency Policy, the Exclusion Clauses did not cover theft from a stationed car, whereas in the All Risk Insurance Policy the Exclusion Clause only covers the theft from any Car except car of fully enclosed saloon type having at the time all the doors, windows and other openings securely locked and properly fastened.
The theft of the three Suitcases had occurred from a saloon type car of which doors, windows and other openings were duly locked and properly fastened.Moreover, there is no material on Record to establish that the Terms and Conditions of the Special Package Policy was given to the Complainant when the Special Package Policy was handed over on 27.06.2015 at the Complainant's premises.
In "Modern Insulators Ltd. vs. Oriental Insurance Co. Ltd. (supra)", the Hon'ble Supreme Court has held as follows:-
"5. The appellant also urged before the National Commission that only the cover note and the schedule of the insurance policy were supplied and other terms and conditions including the exclusion clause were not communicated. According to the appellant the above document supplied did not contain the exclusion clause. The said exclusion clause runs as follows:
"In the case of second-hand/used property the insurance hereunder shall, however, cease immediately on the commencement of the test."
6. The National Commission asked the parties to file affidavit to prove that the exclusion clause was duly communicated to the appellant. We have been taken through the affidavits filed and we find in the affidavit of the appellant the letter received by the appellant from the Branch Manager of the respondent was referred to wherein it was confirmed that the appellant was supplied only with a cover note and the schedule of the policy. So the other terms and conditions containing the above exclusion clause were not communicated. In the reply affidavit filed by the respondent it was not specifically mentioned that the exclusion clause was also communicated to the appellant.
7. The National Commission was of the view that "it is equally the responsibility of the respondent to call for these terms and conditions even if they were not sent by the appellant as alleged, to understand the extent of risks covered under the policy and the associated aspects".
8. It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties know. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose all material facts in their knowledge since the obligation of good faith applies to both equally.
9. In view of the above settled position of law we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent cannot claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law."
In "Bharat Watch Company vs. National Insurance Co. Ltd. (supra)", the Hon'ble Supreme Court has held as follows:-
"11. The basic issue which has been canvassed on behalf of the appellant before this Court is that the conditions of exclusion under the policy document were not handed over to the appellant by the insurer and in the absence of the appellant being made aware of the terms of the exclusion, it is not open to the insurer to rely upon the exclusionary clauses. Hence, it was urged that the decision in Harchand Rai [United India Insurance Co. Ltd. v. Harchand Rai Chandan Lal, (2004) 8 SCC 644] will have no application since there was no dispute in that case that the policy document was issued to the insured.
12. This submission is sought to be answered by the learned counsel appearing on behalf of the insurer by adverting to the fact that Scdrc construed the terms of the exclusion. Scdrc, however, did not notice the decision of this Court, and hence, Ncdrc was (it was urged) justified in correcting the error having regard to the law laid down by this Court. The learned counsel urged that the appellant has been insuring its goods for nearly ten years and it is improbable that the appellant was not aware of the exclusion.
13. We find from the judgment of the District Forum that it was the specific contention of the appellant that the exclusionary conditions in the policy document had not been communicated by the insurer as a result of which the terms and conditions of the exclusion were never communicated. The fact that there was a contract of insurance is not in dispute and has never been in dispute. The only issue is whether the exclusionary conditions were communicated to the appellant. The District Forum came to a specific finding of fact that the insurer did not furnish the terms and conditions of the exclusion and special conditions to the appellant and hence, they were not binding. When the case travelled to Scdrc, there was a finding of fact again that the conditions of exclusion were not supplied to the complainant
14. Having held this, Scdrc also came to the conclusion that the exclusion would in any event not be attracted. The finding of Scdrc in regard to the interpretation of such an exclusionary clause is evidently contrary to the law laid down by this Court in Harchand Rai [United India Insurance Co. Ltd. v. Harchand Rai Chandan Lal, (2004) 8 SCC 644] . However, the relevance of that interpretation would have arisen provided the conditions of exclusion were provided to the insured. Ncdrc missed the concurrent findings of both the District Forum and Scdrc that the terms of exclusion were not made known to the insured. If those conditions were not made known to the insured, as is the concurrent finding, there was no occasion for Ncdrc to render a decision on the effect of such an exclusion."
In "New India Assurance Co. Ltd. vs. Paresh Mohanlal Parmar (supra)", the Hon'ble Supreme Court has held as follows:-
"8. As noted above, the National Commission has returned the finding that terms and conditions of the policy were not communicated to the appellant which finding are contained in para 7 to the following effect :
"We have heard learned counsel for the parties. We have perused the record of the State Commission. Before we embark upon discussion on the issue regarding breach of the terms of the Insurance Policy, it may be mentioned that the other contentions of the respondents were rejected by the State Commission. The appellant also had contended before the State Commission that he was not furnished with the terms and conditions of the insurance policy when the insurance policy was taken by him. The fact that the appellant took relevant insurance policy covering period between 5.06.2003 to 4.06.2004 is not in dispute. The case of the appellant was that the annexure containing terms of the insurance policy had not been attached along with the document of the policy furnished to him. Though the respondents denied such averment of the appellant in their written version yet the appellant reiterated the same stand in his rejoinder affidavit filed before the state Commission. The State Commission did not deal with this aspect of the matter. In our opinion, it was necessary for the respondents to prove that the terms and conditions of the Insurance Policy were furnished to the appellant when the policy document was issued in his favour. We have not come across any tangible material to infer that the relevant terms and conditions of the Insurance Policy were brought to the knowledge of the appellant."
9. The submission of the counsel for the appellant is that National Commission erred in observing that the State Commission did not deal with the aspect, whereas the State Commission has dealt with. When the National Commission has returned the finding that terms and conditions of the policy were not brought to the knowledge of the respondent, as it is contrary to the finding of the State Commission, the findings of the State Commission shall be treated to have been over ruled.
10. The judgment of this Court relied by counsel for the respondent in 2019(6)SCC 212 (Bharat Watch Company through its partner Vs. National Insurance Company Ltd.) supra covers the case, wherein following has been laid down in para 7 & 10:
"7 : "The basic issue which has been canvassed on behalf of the appellant before this Court is that the conditions of exclusion under the policy document were not handed over to the appellant by the insurer and in the absence of the appellant being made aware of the terms of the exclusion, it is not open to the insurer to rely upon the exclusionary clauses. Hence, it was urged that the decision in Harchand Rai will have no application since there was no dispute in that case that the policy document was issued to the insured.
"10 : Having held this, SCDRC also came to the conclusion that the exclusion would in any event not be attracted. The finding of SCDRC in regard to the interpretation of such an exclusionary clause is evidently contrary to the law laid down by this Court in Harchand Rai. However, the relevance of that interpretation would have arisen provided the conditions of exclusion were provided to the insured. NCDRC missed the concurrent findings of both the District Forum and SCDRC that the terms of exclusion were not made known to the insured. If those conditions were not made known to the insured, as is the concurrent finding, there was no occasion for NCDRC to render a decision on the effect of such an exclusion."
In "United India Insurance Co. Ltd. vs. Harchand Rai Chandan Lal (supra)", the Hon'ble Supreme Court has held as follows:-
"12. Similarly in the case of General Assurance Society Ltd. v. Chandumull Jain and Anr., reported in (1966) 3 SCR 500, the Constitution Bench has observed that the policy document being a contract and it has to be read strictly. It was observed :
"In interpreting documents relating to a contract of insurance, the duty of the Court is to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however, reasonable, if the parties have not made it themselves. Looking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the standard policy for fire and extended to cover flood, cyclone etc. had come into being."
13. Therefore, it is settled law that the terms of the contract has to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous.
14. From the above discussion, we are of the opinion that theft should have preceded with force or violence as per the terms of insurance policy. In order to substantiate a claim an insurer (insured) has to establish that theft or burglary took place preceding with force or violence and if it is not, then the Insurance Company will be well within their right to repudiate the claim of the insurer."
In "Suraj Mal Ram Niwas Oil Mills (P) Ltd. vs. United India Insurance Company (supra)", the Hon'ble Supreme Court has held as follows:-
"23. Similarly, in Harchand Rai Chandan Lal's case (supra), this Court held that:
"The terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended."
24. Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the Court should always be to interpret the words in which the contract is expressed by the parties."
In "Export Credit Guarantee Corporation of India Ltd. vs. Garg Sons International (supra)", the Hon'ble Supreme Court has held as follows:-
"8. It is a settled legal proposition that while construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. It is also well settled, that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed in order to determine the extent of the liability of the insurer. Therefore, the endeavour of the Court should always be to interpret the words used in the contract in the manner that will best express the intention of the parties. [Vide: M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd. v. United India Insurance Co. Ltd., IV (2010) CPJ 38 (SC)=VIII (2010) SLT 375=IV (2010) ACC 653 (SC)=(2010) 10 SCC 567].
9. The insured cannot claim anything more than what is covered by the insurance policy.
"...the terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely". The clauses of an insurance policy have to be read as they are... Consequently, the terms of the insurance policy, that fix the responsibility of the Insurance Company must also be read strictly. The contract must be read as a whole and every attempt should be made to harmonize the terms thereof, keeping in mind that the rule of contra proferentem does not apply in case of commercial contract, for the reason that a clause in a commercial contract is bilateral and has mutually been agreed upon.
[Vide : Oriental Insurance Co. Ltd. v. Sony Cheriyan, II (1999) CPJ 13 (SC)=VI (1999) SLT 565=II (1999) ACC 196 (SC)=AIR 1999 SC 3252; Polymat India P. Ltd. v. National Insurance Co. Ltd., IV (2004) CPJ 49 (SC)=VII (2004) SLT 243=AIR 2005 SC 286; M/s. Sumitomo Heavy Industries Ltd. v. Oil & Natural Gas Company, VI (2010) SLT 140=AIR 2010 SC 3400; and Rashtriya Ispat Nigam Ltd. v. M/s. Dewan Chand Ram Saran, III (2012) SLT 388=II (2012) CLT 187 (SC)=AIR 2012 SC 2829].
10. In Vikram Greentech (I) Ltd. & Anr. v. New India Assurance Co. Ltd., II (2009) CPJ 34 (SC)=IV (2009) SLT 35=AIR 2009 SC 2493, it was held:
"An insurance contract, is a species of commercial transactions and must be construed like any other contract to its own terms and by itself.... The endeavour of the Court must always be to interpret the words in which the contract is expressed by the parties. The Court while construing the terms of policy is not expected to venture into extra liberalism that may result in rewriting the contract or substituting the terms which were not intended by the parties.
[See also : Sikka Papers Limited v. National Insurance Company Ltd. & Ors., III (2009) CPJ 90 (SC)=AIR 2009 SC 2834].
11. Thus, it is not permissible for the Court to substitute the terms of the contract itself, under the garb of construing terms incorporated in the agreement of insurance. No exceptions can be made on the ground of equity. The liberal attitude adopted by the Court, by way of which it interferes in the terms of an insurance agreement, is not permitted. The same must certainly not be extended to the extent of substituting words that were never intended to form a part of the agreement."
In "Industrial Promotion & Investment Corporation of Orissa Ltd. vs. New India Assurance Co. Ltd. and Anr. (supra)", the Hon'ble Supreme Court has held as follows:-
"9. It is well-settled law that there is no difference between a contract of insurance and any other contract, and that it should be construed strictly without adding or deleting anything from the terms thereof. On applying the said principle, we have no doubt that a forcible entry is required for a claim to be allowed under the policy for burglary/house breaking."
From the aforesaid decisions of the Hon'ble Supreme Court, the following two Principles emerge:-
(i) There is no difference between a contract of Insurance and any other Contract, and that it should be construed strictly without adding or deleting anything from the terms thereof.
(ii) It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties know. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose all material facts in their knowledge since the obligation of good faith applies to both equally. If the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the Contract of insurance nor disclosed to the Insured, the Insurance Company cannot claim benefit of the said Exclusion Clause.
Applying the Principles laid down by the Hon'ble Supreme Court referred to above, to the facts of the present case, we find that there is no material on Record to establish that the Opposite Party Insurance Company had given the Terms and Conditions of the Special Package Insurance Policy or at any point of time or ever informed the Complainant about the same. Thus, the Exclusion Clause on the basis of which the Opposite Party Insurance Company had repudiated the Insurance Claim of the Complainant, cannot be sustained as the Opposite Party Insurance Company could not rely upon the same.The Repudiation letter is, therefore, set aside.There had been Deficient in Service by the Opposite Party Insurance Company in repudiating the genuine claim of the Complainant and also not providing the Surveyor's Report within the stipulated time.In view of the foregoing discussions we are of the considered view that the Complainant is entitled to the full Claim of Insurance made for the theft of the Jewellery items.Therefore, the Opposite Party Insurance Company is directed to pay the Claim amount of ₹5,30,80,617/- to the Complainant alongwith interest @12% p.a. from the date of filing of the Claim till the date of payment.
Keeping in view the facts and circumstances of the case, the Complaint is allowed in above terms with Costs of ₹5 lakhs, which the Opposite Party Insurance Company shall pay to the Complainant.The Opposite Party Insurance Company is directed to make the payment within six weeks from today.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER