This consumer complaint has been filed by the complainant Inter Gold India (Private. Limited) against the opposite party M/s. New India Assurance Co. Ltd.
2. Brief facts of case are that the complainant had to display its jewellery samples at IJT show, Tokyo Japan scheduled to be held between 26.01.2000 to 29.01.2000. For the purpose of display complainant had tied up with M/s. Rosy Blue Ltd. of Japan for allocation of display space by exhibition authorities. For facilitating the display, complainant had prepared 148 pieces of jewellery samples of value at $ 54,060.01/- which were to be shipped. For insurance of the said shipment, complainant had obtained a Marine Insurance Policy bearing no.112500 from the OP covering transit, storage at and before during exhibition at Tokyo, Japan and also covering risk of loss of 148 pieces of jewellery for an amount of Rs.25,77,852/-. On 29.01.2000, during tenure of exhibition, there has been a theft of 130 pieces of jewellery valued at $44,537.71/- . A police complaint was lodged at head quarter Fukagava P.S. in Japan. On 29.01.2000, complainant reported the matter to Insurance Company and also to W.K.Websters International Pte Ltd. On 09.02.2000, while matter was being examined OP issued a fresh Special Contingency Insurance Policy bearing no.505. On 14.11.2000, OP vide letter communicated to the complainant that they have received all the papers from Space W.K.Websters International Pte Ltd. and they had presented the file to senior authorities for consideration. On 02.08.2001, OP vide letter asked the complainant to lodge a claim against M/s. Rosy Blue holding Mr. Jhaveri responsible for loss or alternatively to request M/s. Rosy Blue to lodge the claim under their global policy because under the jeweller’s Block Insurance policy, the property held in trust or commission is covered. In addition, OP asked the complainant to submit the copy of terms and conditions of agreement with M/s. Rosy Blue w.r.t. exhibition held in Japan. On 11.01.2002, OP vide letter informed the complainant that despite exchange of various correspondence complainant has not produced the details called from them vide letter dated 02.08.2001 and granted further 15 days time to comply the requirement failing which the claim would be closed. The complainant has alleged that non settlement of claim despite repeated reminders and after lapse of considerable period amounts to deficiency in services on the part of OP. On 13.01.2003, this complaint was filed. The main prayers made in the complaint are as under:-
1. Direct the OP to pay the claim amount of Rs.23,31,746/- along with interest @18% from the date of claim till payment.
2. Direct the OP to pay sum of Rs.23,31,746/- plus Rs.10,00,000/- as compensation for mental harassment and cost of the complaint.
3. The OP resisted the complaint by stating that the instant case pertains to the special Contingency Policy bearing no.112500/46/99/00505 issued by OP to the complainant for the period 15.01.2000 to 15.03.2000 in respect of 148 pieces of studded gold and platinum jewellery. The said policy had been issued against the coverage of burglary theft and allied perils, accidental damage, riot, civil commotions, etc. The complainant dispatched the consignment of 148 pieces of studded gold and platinum jewellery by air to M/s. Rosy Blue (custodian of complainant’s Jewellery) at Japan for exhibition. On 29.01.2000, M/s. Brinks Japan Ltd. which had been appointed to keep the safe custody of jewellery before and after the exhibition hours, kept the jewellery in a sealed envelope and handed over the same to Mr. Jhaveri, Director of M/s. Rosy Blue Ltd. Mr. Jhaveri did not check the contents of bag and instead of keeping it in locker, kept the bag in the storeroom. After keeping the bag in the allotted storeroom, Mr. Jhaveri went to clean the booth and when he returned to the storeroom, he found the bag missing. Report was lodged to the police but Mr. Jhaveri did not mention about the loss to the complainant. On 09.02.2000, opposite party appointed Cornes & Co. Ltd. for conducting the investigation/assessment of loss which submitted its report on 10.03.2000. Thereafter, OP appointed an investigator M/s. W.K.Webster International Pte Ltd. who submitted its investigation report dated 20.03.2000 and indicated that there was negligence and lack of extra care on behalf of insured’s representative. On 09.05.2004, OP vide letter repudiated the claim of complainant on the ground of negligence, mysterious disappearance and non-existence of insurable interest as M/s. Rosy Blue Ltd. was acting as custodian for the stock of complainant’s jewellery.
4. Both parties have filed their evidence by way of affidavits which have been taken on record.
5. Heard the learned counsel for the parties and perused the record. Learned counsel for the complainant stated that the claim has been repudiated on the ground of mysterious disappearance whereas the fact is that the jewellery was stolen by somebody in the exhibition ground itself. The roof of the room from where the jewellery was stolen was open to the sky and therefore, the theft of jewellery cannot be seen as mysterious disappearance. In fact, the claim has been repudiated only after filing the complaint. The claim has also been repudiated on the ground of negligence on the part of the complainant. The fact is that in the exhibition, the complainant along with their partner Rosy Blue Ltd. had put up the exhibition, but only representative of Rosy Blue was there in the exhibition and all the jewellery was in their custody. The complainant had not gone to Tokyo and thus the complainant was not physically present in the exhibition. The Insurance Company knew very well that the articles of jewellery are being sent to Tokyo to be kept in exhibition through somebody else. The Insurance Company has issued the insurance policy keeping all aspects in mind. Thus, the Insurance Company cannot now say that complainant did not have any insurable interest. The surveyor appointed by the Insurance Company has not doubted the theft of the jewellery. Gold jewellery of the complainant and the diamond jewellery of its Rosy Blue Ltd. was stolen simultaneously and a common FIR was lodged by the representative of the Rosy Blue Ltd. in the concerned Police Station. The Rosy Blue Limited got their insurance claim after few months, but the complainant is still suffering to get their insurance claim. In respect of mysterious disappearance, the learned counsel referred to the following judgments:
1. Court of Appeals for the Fourth Circuit in Tyson Betty Vs. Liverpool and London and Globe Insurance Company, Limited, 310 F.2d 308. It has been held that:
“Much of the current confusion has arisen because of the provision that unexplained loss or mysterious disappearance shall be presumed to be due to theft. In the setting in which the phrase "unexplained loss or mysterious disappearance" is used in the policy under consideration in the case at bar — that is to say, as an exclusion to an all risk policy — we think it means a disappearance of property where the surrounding circumstances offer no logical explanation of what happened to it. The definition would, of course, exclude the probability of theft, and it would also exclude the probability of all of the other perils against which the policy insured. Nevertheless, we do not think that the exclusion can be held to shift the burden from the insurer to the insured to prove that the loss falls within the exclusion. Once a loss is shown it would be incumbent on the insurer to show that such a loss or disappearance was inexplicable or mysterious. Even if we accept the good faith of the insurer in excepting from the risk by an exclusionary clause such a broad and vague area of the coverage, we are at a loss to understand why it should want to assume such a burden of proof; nor are the experts capable of throwing much light on the subject. See Kelly "Mysterious Disappearance" Defined, Insurance Counsel Journal, January 1961. As to the extent of the defendants' burden under the exceptive clause see Advance Piece Dye Works, Inc. v. Travellers Indem. Co., 64 N.J.Super. 405, 166 A.2d 173 (1960).
2. National Insurance Co. Ltd. Vs. Ishar Das Madan Lal, (2007) 4 SCC 105. It has been observed:
“8. However, there may be an express clause excluding the applicability of insurance cover. Wherever such exclusionary clause is contained in a policy, it would be for the insurer to show that the case falls within the purview thereof. In a case of ambiguity, it is trite, the contract of insurance shall be construed in favour of the insured.”
6. The learned counsel further stated that it is wrong to say that there is no mention of theft of the property of the complainant in the FIR lodged by Mr. Jhaveri. In fact Mr. Jhaveri has clearly written in the FIR that he had taken booth in partnership with the complainant. The lost property also includes the gold jewellery of the complainant. Learned counsel further stated that when the jewellery was insured with the opposite party there was no question of filing a case against Rosy Blue Limited.
7. On the other hand, learned counsel for the opposite party/Insurance Company stated that the theft happened on 29.01.2000 in the morning when only Mr. Jhaveri was present. None of the staff had come till then though they were coming daily in time. There was also staff of the complainant company, however on that date they also did not come in time. The learned counsel for the opposite party basically stated that there was a clear negligence on the part of Mr. Jhaveri because he left the packet unattended in the storeroom, which had no roof and the height was only 2.7 meters and anybody can cross the side walls and take the jewellery packet, which was left unattended. When the night security agency returned the jewellery in a sealed packet to Mr. Jhaveri, he should have first of all checked the same and after receiving the same he should have kept in a lock safe or should not have left the jewellery unattended. As per General Condition no.2 of the policy, no claim is admissible if the loss occurs due to negligence of the party. Similarly, General Condition no.2 demands due diligence on the part of the insured which has not been displayed in the present matter. There is no forceful entry and therefore, the theft can only be termed mysterious disappearance. Exclusions Condition no.2(B) of the policy relates to non-indemnification of the loss in case of mysterious disappearance. The complainant has not rebutted the observations of the surveyor and therefore, there is no ground for not accepting the observations of the surveyor.
8. Learned counsel further argued that it has been admitted by the complainant that Rosy Blue Limited was the custodian of jewellery of the complainant and thus the complainant did not have any insurable interest in the stolen property. As the property was stolen from custody of the Rosy Blue Limited, the complainant was advised to move against Rosy Blue Limited for recovery of the stolen property or for damages. If the total property in the exhibition was under the custody of Rosy Blue Limited then their insurance claim should have included the claim of the complainant as well, but no clear information has been given by the complainant in this regard inspite of asking a specific question in this context by the Insurance Company. On these counts, the claim has rightly been repudiated.
9. I have carefully considered the arguments advanced by both the learned counsel for the parties and have examined the record. It is seen that the repudiation letter has given the following reasons for not accepting the claim of the complainant:-
“3. You have lodged the claim for an amount of Rs.21,23,781/- towards the loss of your diamond/gold jewellery at Tokyo as your policy has been extended to cover the jewellery while at the premises of one M/s. Rosyblue at Japan and at the International Jewellery Tokyo Exhibition in Tokyo against the perils as mentioned above.
4. It is learnt that you had dispatched the consignment by air to M/s. Rosyblue at Japan for exhibiting the same at the exhibition held at Tokyo from 26th January, 2000 to 29th January, 2000. It was undertaken by you to bring back the said jewellery to India if the same are not sold there.
5. It is reliably learnt that on 29th January, 2000, Brinks Japan Ltd, who had been appointed to keep safe custody of the Jewellery before and after the exhibition hours had put the jewellery in a sealed envelope and left the same with one Mr. Jhaveri, the Director of M/s. Rosbyblue.
6. Mr. Jhaveri did not check the contents of the bag and left the bag behind the storeroom of the booth in which the exhibition was to be conducted. The said Mr. Jhaveri failed to keep the jewellery in the Locker but kept the sealed envelops in the storeroom allotted to M/s. Rosyblue and locket it up. As per the statement of –Mr. Jhaveri he was busy for a short time in cleaning the booth and when he went back to the storeroom after 10-15 minutes he found that the plastic bag was missing.
7. When the said event was complained to the Police by way of First Information Report [FIR], Mr. Jhaveri did not make any mention about your jewellery which was alleged to be lost along with the jewels of M/s. Rosyblue. In the said circumstances, your claim is rejected for the following reasons:
(a) Mr. Jhaveri, the Director of M/s. Rosyblue had held your property viz. The jewels in trust and he was grossly negligent in handling the jewellery which was wrapped up in a sealed plastic bag and delivered to him by Brinks Japan Ltd. In fact the said Mr. Jhaveri, the representative of your consignee did not even check the contents of your bag when the same was delivered to him by Brinks Japan Ltd. This could be clearly established from the statement given by Mr. Jhaveri.
(b) Our investigators had found that the entire booth including the storeroom in which the exhibition was conducted was made of timber and the said booth which was 2.7 metres of height had no roof at all. All the rooms in the booth including the storeroom are open from above. Mr. Jhaveri had kept the jewels in the storeroom and not in any locker which itself proves that he has not taken enough and adequate care as a prudent man to safeguard the said jewels and he was negligent in keeping the same in a room which had no roof.
(c) Our investigators further noted while inspecting the premises that the locks of the storeroom from where the jewels disappeared had not been broken and do not show any evidence of any finger prints. You had clarified through you letters that M/s. Rosyblue acted as custodian for the said jewels and thus it is the liability of M/s. Rosyblue to pay for the said loss as the jewelleries had disappeared while in their custody. This could be further strengthened by the fact that the stall was allotted in the name of M/s. Rosyblue at Japan and in the said exhibition M/s. Rosyblue was also participating in exhibiting their jewelleries. When we perused the police complaint made by your custodian M/s. Rosyblue to the Japan Police Authorities we found that nowhere M/s. Rosyblue had mentioned your name and had not taken care to add in statement that your jewellery had also been lost in the said event.
(d) Further we noted that Brinks Japan Ltd., as alleged by you is not a security agency but is a world famous Door to Door Secured Transportation Company which transports cash and precious good and have no concern with the security arrangement of I.T.J.2000 Exhibition in which your jewels were exhibited. We found that once the jewels were delivered to your representatives in sealed polythene bags in the morning of the Exhibition day, the said Brinks Japan Ltd., is free from all responsibilities until they receive the jewels back from the representatives in the evening on the very same day. This established that once this bag is delivered to your representative as custodian, the said M/s. Rosbyblue is to take up the full responsibility in guarding the said jewels with adequate security arrangements and should have handled the said jewelleries with adequate care and caution without any negligence on their part. Mr. Jhaveri was grossly negligent in handling the said sealed bag in which the jewels were delivered by Brinks Japan Ltd., to him and this act of negligence has resulted in huge loss to your company. Moreover, he did not show any regard for your property which was held in trust with him. He did not even take care to mention your name and include your jewelleries in the list of the Jewelleries that have been alleged to be lost in the said event. Thus, M/s. Rosyblue had acted with serious lapses with regard to the safety of the jewels.
8. To summarize, your claim is not tenable in law as well under issuance rules, in view of [a] negligence [b] Mysterious disappearance [excluded in condition no. [b] of Special Contingency Policy] and [c] Non-existence of insurable interest as M/s. Rosyblue was acting as your custodian for the stock of jewellery. Further you may try to appreciate that even after persistent reminders you have not supplied to us any complaint lodged by you against your custodian M/s. Rosyblue. You have not initiated any legal action for the negligent act of M/s. Rosbyblue by way of commission and omission.”
10. From the facts of the case, it is clear that the jewellery was sent from India to Japan and the local company in-charge of the display of all jewellery was Rosy Blue Limited and they were the custodian of the insured property. In a s
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ense, Rosy Blue Limited was the bailee for the property given in trust to them by the complainant. As per Sections 151 and 152 of the Indian Contract Act, it was the duty of the Rosy Blue Limited to safeguard the property of the insured. Clearly, there is lapse on the part of the Rosy Blue Limited that they did not take due precaution for safeguarding the insured property of the complainant. They also worked as the representative of the insured company and from that aspect also, the insured is guilty of not taking the due precaution and for negligence in safeguarding the insured property. From both the aspects, the Insurance Company does not seem to be liable for the loss suffered by the complainant due to this negligence. The negligence on the part of the representative of the complainant is quite clear as he left the bag of jewellery unattended in the storeroom which had no roof and it was open to sky. The height of the side walls was only 2.7 meters, which could be traversed by anybody. In the FIR, it is clearly written that Ms. Kalyani, the office staff of the Rosy Blue Limited also came late on that day and none of the staff of the Rosy Blue Limited or the complainant company reached in time. In these circumstances, it was all the more necessary for Mr. Jhaveri, Director of the Rosy Blue Limited to have paid special attention towards safeguarding the jewellery returned by the night security staff. In these circumstances, clearly the relevant condition of the policy has grossly been violated and the Insurance Company has correctly repudiated the claim. 11. Based on the above discussion, I do not find any merit in the complaint and the complainant has failed to successfully counter the points raised in the repudiation letter. Accordingly, OP No.7 of 2003 is dismissed. However, liberty is granted to the complainant company to move against Rosy Blue Limited for recovery of the amount of the insured property, if complainant company is so advised.