Delhi District Court
M/S Mapple Leaf International vs The New India Assurance Co. Ltd on 4 April, 2016
M/s Mapple Leaf v New India Assurance Co. CS 201/09/03
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL DISTRICT JUDGE 06: CENTRAL : DELHI.
CS 201/09/03
M/s Mapple Leaf International,
Through its partner,
Ms. Leena Trehan,
First Floor, 95 Zamrudpur,
Greater KailashI,
New Delhi - 110048 .......Plaintiff
Versus
The New India Assurance Co. Ltd.
DO 311500,
R7, Green Park,
New Delhi - 110016
Also at
Mother's House
C2, Yusuf Sarai,
Commercial Complex,
Green Park, New Delhi. .....Defendant
Unique case I.D No. : 02401C0215992009
Date of Institution : 02.04.2003
Date of Reserving Judgment : 31.03.2016
Date of Judgment : 04.04.2016
Result: Suit dismissed Page 1 of 23
M/s Mapple Leaf v New India Assurance Co. CS 201/09/03
SUIT FOR RECOVERY
OF RS. 8,86,457/
JUDGMENT
1. This is a suit for recovery of an amount of Rs.8,86,457/ which is inclusive of and also alongwith pendentelite and future interest at the rate of 24% p.a. The principal amount stated to be due against the defendant is Rs.3,51075/ and Rs.5,35,382/ is interest till 18.1.2003. 1.1. The facts in brief are that the plaintiff is a partnership firm which has filed this suit duly signed and verified through its one of the partners Ms. Leena Trehan who is also conversant with the facts. The plaintiff is in the business of fabrication and sale of goods and almost 100% of its business is exports. During 1987 to 1990, the plaintiff was mostly dealing in floor coverings such as carpets, woolen durries, clean stitched rugs etc. In 1990, the plaintiff started export of garments due to which the volume of this work increased while the exports of carpets reduced and came to an end in 1995. The plaintiff did business against the orders and thus generally maintained zero stocks of its products while keeping only the samples. The goods were procured after receipt of orders. Thus, the inventory at the plaintiff's premises remained only at the time of processing of orders and their execution from March to November each Result: Suit dismissed Page 2 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 year. The garment shipments were made to London, USA, Australia and Singapore since 1990 by air. The plaintiff utilized its premises bearing no. 95, Zamrudpur (Mezzanine and first floor), Greater Kailash I, New Delhi as its works and showroom. The premises was also shared by M/s L.A Designer Collection and The Miracle Company which are sister concerns of the plaintiff for export of readymade garments and no separate portions of the premises are allotted to these three concerns. 1.2. The plaintiff had been obtaining fire and burglary policies of insurance from the defendant w.e.f 1988 onwards. Since the main export at that time was floor coverings, which was mentioned as such in the policies. However, since the description changed thus since 1990, the bankers of the plaintiff suggested the defendant to reevaluate the product description and make necessary changes in the policies. The plaintiff wrote a registered letter dated 5.11.1992 to the defendant for this purpose.
1.3. It is averred that the defendant took note of said change selectively in respect of the burglary policies of the plaintiff and fire policies of the plaintiff's sister concerns but continued to issue fire policies to the plaintiff showing the trust of its export items covered under the policies as woolen durries, rugs etc. These discrepancies were brought to the notice of the defendant from time to time and the plaintiff was assured that the words used in the policies would not matter as the consignments Result: Suit dismissed Page 3 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 being exported were covered under the policies.
1.4. The fire policy for the period between 10.11.1995 to 9.11.1996 gave the description of goods as "woolen durries, rugs, clean stitch rugs". At the instance of the plaintiff, the same was modified for the subsequent years i.e from 13.11.1996 to 12.11.1997 and from 13.11.1997 to 12.11.1998 as "stocks of woolen durries, clean stitch rugs etc". It was given to understand that the term "etc." would include other articles including readymade garments, handicrafts etc. 1.5. It has been stressed upon that as per the policy dated 13.11.1997 to 12.11.1998, the description of the goods was "stocks of woolen durries, clean stitch rugs etc." the burglary policy issued for the same period in respect of the same premises at Zamrudpur described the goods as "woolen durries, rugs, clean stitch rugs of all types and such other goods pertaining to the insured trade". A single cheque was issued by the plaintiff for both the policies and accepted.
1.6. It is averred that the defendants were aware that the plaintiff from its Zamrudpur premises was procuring, fabricating, packing and exporting ready made garments since 1990 as the stocks when exported were covered under Marine policies issued by the defendant qua each consignment.
1.7. A fire took place in the insured premises of Zamrudpur in the evening of 17.10.1998 resulting in extensive damages to the stocks of Result: Suit dismissed Page 4 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 ready made garments, furniture and fixtures, office equipment etc. The plaintiff and its sister concerns immediately informed the defendant's officials telephonically and issued written intimation on 18.10.1998. The defendant appointed Sh A.K Gupta as surveyor who found that the goods destroyed were covered under the policy. As per the report, the defendant paid the claims of sister concerns but so far as the plaintiff is concerned, objections were raised. The claim was rejected purportedly on frivolous grounds. It was stated that the policy did not cover the stock of the ready made garments as per letter of rejection dated 26.9.2000. The plaintiff had suffered loss of Rs.3,51,075/ which he now claims with interest at the rate of 24% p.a on the claimed amount w.e.f the date of loss i.e 17.10.1998 till its realization. Interest as computed is Rs.5,35,382/. 1.8. After rejection of the claim, the plaintiff requested the grievance cell of the defendant to make the payment but to no avail. Legal notice was issued on 8.2.2003 but again to no avail. It is submitted that cause of action arose on 17.10.1998 i.e the date on which the fire took place and again on 26.9.2000 when the plaintiff's claim was rejected and also on the date of the legal notice. Hence this suit.
2. The defendant has filed written statement taking preliminary objections that the plaintiff is not a registered partnership firm and thus the suit is barred under Section 69 of the Partnership Act. It is submitted that the suit is not filed by a registered partner as Ms. Leena Trehan is not a Result: Suit dismissed Page 5 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 registered partner. It is submitted that the policy issued was in respect of "stocks of woolen durries, clean stitch rugs etc" while the loss claimed is with regard to "stocks of ready made garments furniture and fixtures, office equipment and appliances, raw material and goods under process etc". It is claimed that the suit is barred by limitation as per clause 6(ii) of the fire policy 'C'. It is claimed that plaintiff is also guilty of concealment of facts.
2.1. On merits, the claim of the plaintiff is denied so far as it pertains to the claim of losses. The defendant denies that plaintiff ever sent any letter dated 5.11.1992. The defendant also denies that it took note of alleged notice dated 8.2.2003 and made changes in the policy. It is also denied that plaintiff ever pointed out any alleged discrepancies to the defendant. It is also denied that the term "etc." would have covered other articles also. The defendant denies to have received any letter dated 5.11.1992. It is stressed upon that ready made garments were not covered under the fire policy. The defendant does not deny the intimation regarding the fire incident. It is also not denied that the claims made by the sister concerns of the plaintiff were settled as per the terms and conditions of the policies. The defendant denies that surveyor ever reported that the goods destroyed in the fire were covered under the policy. The defendant denies the extent of damages suffered by the plaintiff in the incident. Receipt of legal notice dated 8.2.2003 is Result: Suit dismissed Page 6 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 accepted. It is stressed upon that the plaintiff remained silent during the intervening period i.e almost two and a half years after rejection of claim demonstrating that the plaintiff had accepted the grounds for rejection of claim as per letter of repudiation dated 26.9.2000.
3. The replication has been filed which is primarily a reiteration and reassertion of the facts in the suit plaint as correct.
4. Following issues were framed for evidence of the parties thereupon vide order dated 19.09.2005 viz:
1. Whether the suit of the plaintiff is barred under Section 69 of the Partnership Act ? OPD.
2. Whether the suit is barred by limitation ? OPD.
3. Whether the suit is barred under the Specific Relief Act ? OPD.
4. Whether the suit is bad on account of concealment of the material facts ? OPD.
5. Whether the plaintiff is entitled for recovery of suit amount ? OPP.
6. Whether the plaintiff is entitled for the interest, if so at what rate and for which period ? OPP.
7.Relief.
5. The plaintiff in this case has examined four witnesses. PW 1 is the partner Ms. Leena Trehan who has filed her affidavit in evidence and has Result: Suit dismissed Page 7 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 been accordingly cross examined. The second witness of the plaintiff is Sh Anil Trehan, Chief Executive/Manager of the plaintiff firm. He has been also duly cross examined. The third witness of the plaintiff is Sh Ashwini Sharma who was summoned. He worked as Development Officer with the defendant who had been conducting the insurance at the instance of the plaintiff company for the goods lying at Zamrudpur premises since 1989 till 200203. He identified ExPW1/3, ExPW1/6, ExPW1/7 and ExPW1/8 to ExPW1/11 as the policies issued by the defendant. This witness used to collect the premium of all these policies. He testified that the term "other goods" mentioned in policy ExPW1/10 means goods related to insured trade. The same meaning was imputed to the term "such other goods". Same meaning was again imputed to the term "etc." in policy ExPW1/7. This witness was also cross examined. The last witness of the plaintiff is Sh A.K Gupta who is surveyor appointed by the defendant in this case. He proved his report ExPW4/1. He had examined the insurance policy of fire and burglary which are ExP7 and ExP10 respectively. This witness was also cross examined.
6. The defendant also examined one witness Ms. K.S Jyothi, its Divisional Manager as DW1. She has deposed by way of affidavit and has been duly cross examined by the plaintiff.
7. This Court has heard learned counsel for plaintiff Sh Jagjit Singh, Advocate and ld counsel for defendant Sh Ajay Singh, Advocate and has Result: Suit dismissed Page 8 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 gone through the entire record including evidence and documents produced by the witnesses. My issuewise findings are as under viz; Issue No. 1: Whether the suit of the plaintiff is barred under Section 69 of the Partnership Act ? OPD.
8. The onus of this issue was on the defendant. In accordance of the pleadings, DW 1 has given oral evidence only. On the contrary, PW1 and PW 2 have also produced documentary evidence. To prove that plaintiff is a partnership firm, PW 1 Ms. Leena Trehan has placed on record duly certified copy of Form B issued by Registrar of Firms, Delhi. Same is ExPW1/2. This document proves that the plaintiff is a partnership firm. Further, the suit is filed by Ms. Leena Trehan who claims to be one of the registered partner of the partnership firm. In order to prove it, PW 1 Ms. Leena Trehan has filed certified copy of Form A which is ExPW1/1. As per the said form maintained under Section 59(4)/(1) of the Indian Partnership Act, 1922, PW 1 is shown as a registered partner of the plaintiff firm. In view of this document, the plea of the defendant is not sustainable. The suit is not barred under Section 69 of the Partnership Act. The issue is accordingly decided against the defendant and in favour of the plaintiff.
Issue No. 2: Whether the suit is barred by limitation ? OPD.
9. The onus of this is on the defendant. Infact, majority of the arguments advanced by the advocates are on this aspect only. According to ld Result: Suit dismissed Page 9 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 counsel for plaintiff, the plaintiff is covered under the Residuary Article 113 of the Schedule appended to the Limitation Act 1963. According to the plaintiff, the period for filing the suit is within 3 years from the date when the right to sue accrued to the plaintiff. The same is said to be w.e.f 26.9.2000 i.e on the date on which the plaintiff's claim was repudiated vide letter of repudiation of the even date which is ExPW1/31. This suit was instituted on 2.4.2003 i.e within said period of limitation. This stand has been negated by the defendant. The policies issued from time to time are admitted documents. The fire policy of the relevant year will be of relevance. Same is ExP7 which is fire policy 'C' issued on behalf of the defendant by the Development Officer Sh Ashwani Sharma (PW3). The defendant relies on Clause 6(ii) of this policy which is as under:
"(ii) In no case whatsoever shall the company be liable for any loss or damage after the expiration of 12 months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration, it being expressly agreed and declared that if the Company shall disclaim liability for any claim hereunder and such claim shall not within 12 calendar months from the date of the disclaimer have been made the subject matter of a suit in a Court of law, then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be Result: Suit dismissed Page 10 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 recoverable hereunder."
9.1. According to the defendant, PW1/31 i.e letter of repudiation dated 26.9.2000 is primarily based on the fact that the claim in respect of readymade garments, handicrafts etc was not covered by the insurance policy. This document is an admitted document. There is no dispute that the claim was not rejected vide ExPW1/3 itself. According to the defendant, it was expressly agreed and declared between the insurer and insured that the entire claim was for all purposes be deemed to have been abandoned and not recoverable thereafter after the company disclaimed liability and the insured did not make it out a subject matter by a suit in a Court of law within 12 calendar months from the date of disclaimer i.e 26.9.2000.
9.2. In order to rebut this argument, the defendant has relied on the land mark case on the issue which is titled National Insurance Co. Ltd v Sujir Ganesh Nayak & Co. and another (1997) 4 SCC 366. This is a judgment rendered on 21.3.1997. According to the plaintiff, Clause 6(ii) in the policy aforesaid is an agreement which is in restraint of legal proceedings and thus void. Law as it exists in Section 28 (b) of the Indian Contract Act, 1872 is cited. By virtue of the same, any agreement which extinguishes the rights of any party thereof, or discharges any party thereof from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party Result: Suit dismissed Page 11 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 from enforcing his rights is void to that extent. This amendment in Section 28 of the Act was was substituted by Act 1 of 1997, Section 2 w.e.f 8.1.1997. In the said case, Clause 19 of insurance contract was analysed as to if it is hit by Section 28. As per Clause 19, 'in no case whatever was the company be liable for any loss or damage after the expiration of 12 months from the happening of loss or damage unless the claim is the subject of pending action or arbitration, the Hon'ble Apex Court made distinction between extinguishment of right by terms of contract and curtailment of time for enforcement of contract. Having so analyzed, it was observed that the former is barred and the latter is not barred by Section 28 of the Contract Act. It was thus held that Clause 19 was valid. According to ld counsel for plaintiff, this case did not make any reference to Clause (b) of Section 28 of the Contract Act and hence not applicable to the plaintiff's case. The plaintiff also went to the extent of saying that the judgment in Sujir Ganesh Nayak's case (Supra) is perincuriam in view of the previous judgment of the Hon'ble Apex Court in Food Corporation of India v New India Assurance Co. Ltd & Ors. (1994) 1 SCR 940. This judgment was delivered on 15.2.1994 and it was followed subsequently in Sujir Ganesh Nayak's case (Supra). In the case of Food Corporation of India (Supra) it was held that the fidelity insurance guarantee did not contain any clause contrary to Section 28 and it did not contain any restriction to file a suit within 6 Result: Suit dismissed Page 12 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 months from the date of determination of the contract. It was observed that the parties only agreed that the Food Corporation of India/insurer would not have any right under the bond from the expiry of 6 months from the date of termination of the contract. It was observed that the same can not be construed as curtailing the normal period of limitation provided for filing the suit. It was enunciated that the insurance company should not be kept in dark for long and they must be apprised of their liabilities immediately.
9.3. I have gone through both the judgments. Suffice would be to say that this Court is bound by the law of land. Needless to say that the stand of the plaintiff can not be appreciated in view of the fact that in Sujir Ganesh Nayak's case (Supra), the judgment in Food Corporation of India was duly followed. Reference was also made to the judgment in Vulcan Insurance Co. Ltd v Maharaj Singh & Anr. (1976) 1 SCC
943. It was affirmed in the said case. While interpreting a clause couched in similar terms it was held that such a clause is not hit by Section 28 of the Contract Act.
9.4. At the same time, it is true that there is no reference to Section 28 (b) in these judgments.
9.5. It does not imply that the plaintiff's stand will have to be construed as correct. It is so as clause (b) of Section 28 of the Indian Contract Act is duly considered in subsequent judgment (also relied by the defendant) in Result: Suit dismissed Page 13 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 case titled H.P State Forest Co. Ltd v United India Insurance Co. Ltd AIR 2009 SC 1407.
9.6. As a matter of fact, the respondent in the said case, which is a insurance company, had a similar clause as in this case in its policy. The Hon'ble Apex Court considered the clause 6(ii) of the insurance policy which is similarly worded as clause 6(ii) of the policy in this case, particularly ExP7.
9.7. In the said case, due reference was made to the case of Food Corporation of India (Supra), Vulcan Insurance (Supra) as well as Sujir Ganesh Nayak's case (Supra). The issue was also the same. It is another matter that the Hon'ble Apex Court categorically observed that the suit in the said case was filed even beyond the period of three years as provided in the residuary clause of the Schedule to the Limitation Act. Nevertheless, an issue was raised that in view of the amendments, observation in Sujir Ganesh Nayak's case (Supra) were liable to be reconsidered. Thus, even though the question remained really academic but it was dealt with. The following is worth extraction, viz "the matter was, accordingly, adjourned by us to enable the parties to find out if the amendment had, indeed, been made and, if so, to what effect. During the resumed hearing, ld counsel for the appellant candidly admitted that the amendment had been made but had thereafter been repealed Result: Suit dismissed Page 14 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 and the matter would, thus, have to be examined under Section 28 of the Contract Act, as originally placed. We have accordingly,chosen to deal with this matter under that provision".
9.8. Subsequent thereafter, impact of clause 6(ii) of the policy and Section 28 of the Contract Act was considered. It was categorically held that Clause 19 said that in no case would the insurer be liable for any loss or damage after the expiration of 12 months from the happening of loss or damage unless the claim is subject of any pending action or arbitration. It was held that in the said case, the claim was not subject to any action or arbitration proceedings. There was no dispute that no claim was made nor was any arbitration proceeding pending during the said period of 12 months. Thus, the contention was not appreciated. It was held that, "in the light of the fact that Food Corporation 's case has been considered in Sujir Ganesh Nayak's case (Supra), no further argument remains in the present matter as clause 6(ii) and condition 19 are,in their essence, pari materia."
9.9. The plaintiff's counsel again asserted that in arriving at this conclusion, Section 28(b) of the Contract Act was again not considered. This Court will not be in agreement with this argument in view of the contents of para 6 of this judgment. In order to controvert this plea, plaintiff's counsel tried to refute the submission of defendant's counsel Result: Suit dismissed Page 15 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 that Section 28(b) of the Act has not been repealed. However, this submission was not substantiated. Thus, on the contrary, the defendant's counsel produced the copy of the Repealing and Amendment Act, 2001 No. 30 of 2001 dated 3.9.2001. As per the same, the whole of the Indian Contract (Amendment) Act 1996 stood repealed. This is also mentioned in para 6 of judgment in H.P State Forest Co.'s case (Supra). 9.10. Nevertheless, in my considered view, the position would not have otherwise also changed in view of the fact that Clause 6(ii) itself extinguished the right to sue. Thus, in my considered view, the plaintiff would be incorrect in saying that the suit as filed on 2.4.2003 would be covered within the period of limitation of three years w.e.f the date of ExPW1/31. It being so, the suit is barred by limitation. This issue is accordingly answered in favour of the defendant and against the plaintiff. 9.11. Since the above issue was not treated as preliminary issue, this Court will be required to return its findings on other issues also. The same follows.
Issue no. 3: Whether the suit is barred under the Specific Relief Act ? OPD.
10. The onus of this issue was also on the defendant. The sole witness of the defendant i.e DW 1 has deposed regarding the above in para 8 of her affidavit in evidence. What is deposed is that the plaintiff is seeking consequential relief of declaration without seeking declaration itself. In Result: Suit dismissed Page 16 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 my considered view, same is not the case. This is a matter of money recovery based on construction of terms of the Contract and the plaintiff in this suit for recovery is not required to seek any declaration to the effect that the insurance policy did cover readymade garments etc also. In view of this observation, the issue is decided against the defendant. Issue no. 4: Whether the suit is bad on account of concealment of the material facts ? OPD.
11. The onus of this issue was also on the defendant. In this context also I find that DW 1 has only made a bald statement in para 11 of her affidavit. It is nowhere specified as to which particular material fact has been concealed by the plaintiff. If it is a case of the defendant that the plaintiff never specified that the readymade garments were also subject matter of the insurance policies then there is no specific pleading to that effect. In the absence of the same, it can not be held that there is any concealment of any material fact. Thus this issue is also decided against the defendant.
Issues no. 5 & 6: Whether the plaintiff is entitled for recovery of suit amount ? OPP.
Whether the plaintiff is entitled for the interest, if so at what rate and for which period ? OPP.
12. The onus of these issues remained on the plaintiff. I would also state that in view of specific finding on issue no. 2, this issue would merely Result: Suit dismissed Page 17 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 remain academic. However, they need to be addressed as all the issues are to be answered. Recovery of the suit amount as well as interest thereupon is claimed on the ground that claim was wrongly rejected. The entire petition is silent about the date of claim. However, from the report of surveyor ExPW4/1, it would be apparent that the underwriter had referred the assessment of this loss to him on 20.10.1998 on telephone. It is also in pleadings and evidence that the date of incident of fire is 17.10.1998 which was informed to the defendant telephonically and also by written intimation dated 18.10.1998. Same is ExPW1/33. This document is denied. The letter is in writing but there is no evidence regarding mode of dispatch. This will not make any difference in view of testimony of PW4 regarding referral of assessment by the underwriter to him on 20.10.1998 itself. At the same time, ExPW1/33 is only a request for asking a survey. There is nothing on record that the plaintiff filed a separate claim subsequent to report of surveyor ExPW4/1. If the surveyor report is taken as a claim on its face value then the amount allowed by the surveyor was Rs.2,45,110/. He left certain articles from the assessment on the ground that the same were items not supposed to be kept in the store room. This witness as PW 4 has deposed that all the policies were issued from the same office of the underwriters and the items covered were also textiles and handlooms which were defined in the subject policy vide the word "etc" and the goods pertaining to the Result: Suit dismissed Page 18 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 trade of insured. The defendant's stand is that the surveyor report is not binding upon the insurance company for settlement of the claim. As a matter of fact, such surveyors appointed by the insurance company are operating independently. This fact would make PW 4 an independent witness.
13. In the same context, even PW 3 has deposed that the term "etc" as used in the policy implies the goods related to the trade of the insured. It is in evidence that plaintiff had made a case that it stopped the business of export of carpets in 1995. Garment shipments were thereafter made. The plaintiff's banker sought clarification regarding the same and plaintiff wrote letter dated 5.11.92 (ExPW1/14) to the defendant way back on 5.11.92 itself. The defendant has denied this letter but the plaintiff has also produced proof of its dispatch in the form of postal receipts ExPW1/15 and ExPW1/16. The defendant has not denied that the address provided on the letter was not its address in November 1992. However, it is own case of the plaintiff that this matter was not pursued thereafter as its banker i.e New Bank of India got dissolved soon thereafter. Thus, this letter will not make a difference until the plaintiff pursued it and made it a point that the future policies were not with respect to either the floor covering, woolen durries or for that matter clean stitch rugs.
14. On the contrary, the plaintiff relies heavily on the fact that the burglary Result: Suit dismissed Page 19 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 policy of the relevant year described the goods as "woolen durries rugs, clean stitch rugs of all types and such other goods pertaining to the insured trade."
15. The fact remains that the above is only found in the burglary policy whereas it is not there in the fire policy. The fire policy was still with respect to "stocks of woolen durries clean stitch rugs etc."
16. No reference is made in the fire policy that it also pertains to the goods pertaining to the insured trade. The plaintiff relies heavily on the marine policies issued by this very defendant. The marine policies reveals that the description of goods in them is recorded on the basis of "consignment is said to contain.....".It is not provided that the insurance was made on the basis of stock verification. Even regarding other policies, the agent/development officer states in his cross examination that he did not make physical verification of the stock at the premises of the plaintiff. Moreover, there is no evidence on record that the fire policy, the burglary policy and the marine policy will have to be taken as comprehensive policies or that their terms overlapped each other. Thus, even if single premium cheque was issued or the policies were issued on the same day, it will not go to the benefit of the plaintiff.
17. To counter the plaintiff's claim that the term "etc" can not be construed to include all items dealt with in the trade of the plaintiff, the defendant has also placed reliance on case titled Maharashtra University of Result: Suit dismissed Page 20 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 Health Sciences & Ors v Satchikitsa Prasarak Mandal & Ors. MANU/SC/0136/2010. Based on the interpretation of expression ejusdem generis it is provided to mean that when general words in a statutory text are flanked by restricted words, the meaning of the general words are taken to be restricted by implication with the meaning of restricted words. The defendant also relies on Vikram Greentech (I) Ltd & Anr v New India Assurance Co. Ltd MANU/SC/0519/2009 wherein it is held that terms of insurance policy have to be strictly construed. The insured can not claim anything more than what is covered by the insurance policy. It also holds that surveyor report can not be taken as a basis for construction of insurance policy. Reliance is also placed on Sikka Papers Ltd v National Insurance Co. ltd & Ors MANU/SC/0907/2009 wherein it is held that a surveyor report is not the last word and by the legitimate reasons it can be departed from.
18. The evidence when seen in the light of the above clearly establishes that the claim of the plaintiff is that it was represented that no amendment to the description of goods in the policy is required as the term "etc" included everything in which the plaintiff dealt. In this context, I shall be concerned only of the fire policy. As per the judgment in Maharashtra University's case (Supra), the general word in this policy i.e "etc" will have to remain flanked by restricted words. The restricted words in the policy are "stocks of woolen items, clean stitch rugs etc". There is no Result: Suit dismissed Page 21 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 reference in the same to include other goods of the insured trade. There is no reference at all of garments in the policy. Thus, the term "etc" will have to be read only in respect of stocks of woolen durries, clean stitch rugs in their reference of goods of said type and nothing else. It was for the plaintiff to have either relied on the representation of the defendant that the term "etc" was a word that covered all its goods. If the plaintiff was not to act on this representation then nothing prevented it from saying so in writing while making insistence for amendment to the description of goods. This is not the case here.
19. ExPW1/39 is a document which clarifies this aspect. In the said letter dated 15.2.2001, plaintiff claims that its garment shipments were covered by Marine policies from day one. The agent of the defendant was informed that the beautiful clause in the policy i.e "etc" covered everything. It is claimed that the agent visited the plaintiff's office and was fully aware of its business. This agent is before the Court and his testimony is PW3. As defendant's Development Officer, he claims that it is he, who issued policies to the plaintiff till December, 2001 covering the policy till December 2002. This agent nowhere states that he had represented the plaintiff at the relevant time on behalf of defendant that the term "etc" covered everything. There is no statement made before this Court. On the contrary, this witness has merely given his interpretation of the term "etc". While giving such interpretation, he Result: Suit dismissed Page 22 of 23 M/s Mapple Leaf v New India Assurance Co. CS 201/09/03 never asserted that it is he who represented the plaintiff that no such modification was necessary regarding the garment export in the policies. If the plaintiff is referring to some other agent, then no such other agent has been produced before this Court. Thus, it is plaintiff's own case that gets demolished in view of absence of best evidence on the issue. It being so, the plaintiff can not claim any entitlement to the amount in suit. The same analogy applies to the interest part. These two issues are therefore, decided against the plaintiff and in favour of the defendant.
Issue No. 7: Relief.
20. In view of the findings on the above issues, the plaintiff is not entitled to any relief. In the result, the suit of the plaintiff is dismissed.
21. Parties to bear their own costs.
22. File be consigned to record room.
Announced in open Court (Manish Yaduvanshi)
Dated: 04.04.2016. ADJ06(Central)Delhi
Result: Suit dismissed Page 23 of 23