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Wednesday, February 24, 2016
Tuesday, February 23, 2016
Justice C S Karnan - Lost mental balance, says HC judge
Lost mental balance, says HC judge
Justice C S Karnan of the Madras High Court, who courted controversy by staying the CJI's order transferring him to Calcutta High Court, today admitted that he had issued an "erroneous" order due to his "mental frustration resulting in the loss of his mental balance."
In a letter to the Chief Justice of India and two Supreme Court judges - Justices J S Khehar and R Banumathi- Justice Karnan claimed he was "disturbed" due to various incidents where he was "ridiculed" by some judges due to which he was frustrated.
"On February 15, 2016, I had sent an erroneous order due to my mental frustration resulting in loss of mental balance since I was disturbed through various incidents," Justice Karnan said.
In his letter, he also said that "hereafter, I will still continue to foster a harmonious attitude to one and all, and will appreciate your kind reciprocation and oblige."
He gave two instances of harrassment and "ridicule" against him to buttress his point and said he had sent a complaint to the Chairman of National Commission of Scheduled Castes and Scheduled Tribes and other high dignitaries three years ago.
The media had reported the incident and "urged me to reveal the names of the Judges who indulged in such ugly pranks but I refused to do so only to uphold the sanctity of the judiciary and also maintain communal harmony," he said.
Justice Karnan had on February 15 stayed his transfer order, a development which took place after the apex court had asked the Chief Justice of Madras High Court not to assign any judicial work to him.
The same day the apex court had suspended Justice Karnan's order and made it clear that all administrative and judicial orders passed by him after the issuance of proposal of his transfer from Madras High Court to Calcutta High Court shall remain stayed till further orders.
The apex court had passed the directions on an application moved by the Registrar of Madras High Court, who is also private secretary to the Chief Justice, seeking an order to restrain Justice Karnan from doing any judicial work.Monday, February 22, 2016
Apple Has FAQ On Government’s iPhone Unlock Request
It does not look as though things are looking up for the situation between the US government and Apple at the moment, as they continue to remain locked in a moral tussle concerning a dead terrorist’s iPhone 5c. Well, Apple has updated their support page to feature information related to the current legal battle in which it is embroiled with with the government, which centers on a court order that asks Apple to unlock an iPhone 5c belonging to deceased terrorist Syed Farook, with the FBI claiming that the information within the handset might help them to in their investigations.
The FAQ clearly points out that the government is asking for the company “to create a unique version of iOS that would bypass security protections on the iPhone Lock screen.” In other words, Apple was instructed to do away with the Auto-Erase feature which completely wipes out an iPhone after ten incorrect passcodes are entered. Apple does not want to compromise on that since giving in might set a precedent for future cases, despite assurances that it would not.
What is your take on the situation? Do you think that this is a one-off event that Apple should comply with, or are they right in making such a strong stand?
Friday, February 19, 2016
United India Insurance Co. Ltd. V. M/s Orient Treasures Pvt. Ltd. - January 13, 2016.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.2140 OF 2007
United India Insurance Co. Ltd. ……Appellant(s)
VERSUS
M/s Orient Treasures Pvt. Ltd. ……Respondent(s)
WITH
CIVIL APPEAL No.5141 OF 2007
M/s Orient Treasures Pvt. Ltd. ……Appellant(s)
VERSUS
United India Insurance Co. Ltd. ……Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
C.A. No. 2140 of 2007
1) This appeal under Section 23 of the Consumer Protection Act, 1986 is
filed against the order dated 19.03.2007 of the National Consumer Disputes
Redressal Commission (hereinafter referred to as “the Commission”), New
Delhi in Original Petition No. 375 of 1999 whereby the Commission allowed
the petition filed by the respondent herein and directed the appellant-
insurance company to pay a sum of Rs.36,10,211/- with interest @10% p.a.
from 03.12.1995 till date of payment and also directed the insurance
company to pay costs assessed at Rs.50,000/- to the respondent-Complainant
herein.
2) In order to appreciate the issue involved in this appeal, which lies
in a narrow compass, it is necessary to set out the relevant facts in brief
infra.
3) The appellant herein is an insurance company incorporated under the
Companies Act having its registered office at No. 24, Whites Road, Chennai.
The respondent herein is also a company incorporated under the Companies
Act, 1956 having its registered office at Oceanic Buildings, Quilon, Kerala
and its branches inter alia at Janpriya Centre No.34, Sir Thyagaraya Road,
Pondy Bazar, Chennai.
4) The respondent herein is the complainant. They are engaged in the
business of sale of various kinds of Jewellery. The respondent is having
their jewellery shop known as “Kanchana Mahal” which is situated at
Janpriya Centre No.34, Sir Thyagaraya Road, Pondy Bazar, Chennai.
5) The respondent had insured their jewellery kept in their shop with
the appellant under successive “Jewellers Block Policies” with effect from
02.07.1993 onwards. The procedure followed was that the respondent was
required to submit proposal form. On receipt of the proposal form, the
officials of the appellant-insurance company used to inspect the shop to
verify the security and storage particulars.
6) The respondent filled up the insurance proposal form by providing
necessary information as mentioned in the form. On the basis of the said
proposal form, the appellant issued an insurance policy in favour of the
respondent from 02.07.1993 to 01.07.1994. It was then subsequently renewed
for further one year, i.e. from 02.07.1994 to 01.07.1995.
7) On 02.06.1995, the respondent alleged that there was a burglary in
their Jewellery shop. According to the respondent, on the night of
02.06.1995, burglars broke open the locks of shutters, entered the shop and
decamped with the gold and silver ornaments valued at Rs.40,63,735.53. The
respondent accordingly lodged FIR at the concerned Police Station on
03.06.1995. The respondent also informed the appellant on 03.06.1995 by a
telegraphic communication about this incident. By letter dated 05.06.1995,
the appellant informed the respondent that a Surveyor has been appointed to
assess the loss suffered by the respondent in the burglary. The surveyor
then inspected the site and also examined all the relevant material, books,
inventory etc. with a view to assess the actual loss alleged to have been
suffered by the respondent and accordingly assessed the total loss at
Rs.36,10,211/. Thereafter he submitted his report. After investigation,
the police also submitted a final investigation report on 24.06.1995
treating the case as untraceable.
8) The respondent then submitted their claim with the appellant on the
basis of the Insurance Policy and claimed that they are entitled to receive
the value of Jewellery which they lost in burglary committed in their shop
on 02.06.1995. On 19.01.1998, the Divisional Manager of the Insurance
Company, Tuticorin after examining the respondent’s claim for loss of their
Jewellery repudiated the claim inter alia on the ground that the stolen
gold ornaments and silver articles were found to had been kept on display
window and in the sales counters at the time of burglary which took place
in the night of 02.06.1995, which according to appellant, was contrary to
the terms of the policy and, therefore, not covered in the policy. In other
words, such items were not insured. It was further stated that the policy
was issued subject to the terms, conditions, warranties and exclusion
printed in the proposal form which was a part of policy. The appellant
relied on clause 12 of the policy and stated that since the burglary in the
shop took place during night and stolen articles kept in window display
and lying out of safe in the shop were stolen, the appellant could not be
made liable to indemnify such loss which, according to them, was not
insured and specifically excluded from the insurance policy.
9) Being aggrieved by the decision of the appellant-Insurance Company,
the Respondent sent letters and reminders pointing out therein the terms of
the proposal form and policy and insisted that the loss was fully covered
by the policy and hence they were entitled to claim the value of the lost
articles from the appellant on the basis of Insurance Policy. As nothing
was done, the respondent filed a complaint before the National Consumer
Disputes Redressal Commission, New Delhi (hereinafter referred to as “the
Commission”) being Original Petition No. 375 of 1999 claiming a sum of
Rs.1,32,06,786.30.
10) By order dated 19.03.2007, the Commission partly allowed the
petition filed by the respondent and directed the appellant-Insurance
Company to pay a sum of Rs.36,10,211/- with interest @ 10% p.a. from
03.12.1995 till date of payment and also directed the Insurance Company to
pay costs assessed at Rs.50,000/- to the respondent.
11) Aggrieved by the said order, the appellant-Insurance Company has
filed this appeal.
12) Dissatisfied with the claim awarded by the Commission, the respondent
has filed C.A. No. 5141 of 2007 seeking enhancement in the quantum of
claim. According to the respondent, they are entitled to claim a sum of
Rs.1,32,06,786.30 as against Rs. 36,10,211/- awarded by the Commission.
13) Heard Mr. P.P. Malhotra, learned senior counsel for the appellant and
Mr. H. Ahmadi, learned senior counsel for the respondent.
14) Shri P.P.Malhotra, learned senior counsel appearing for the appellant
while assailing the legality and correctness of the impugned order mainly
urged two points in support of his submissions.
15) In the first place, learned senior counsel urged that the Commission
erred in partly allowing the complaint filed by the respondent herein by
passing the impugned award against the appellant. According to learned
counsel, had the Commission properly interpreted clauses 4 and 5 of the
proposal form, which was part of the policy along with clause 12 of the
policy then in such event, the respondent's complaint was liable to be
dismissed in its entirety.
16) Elaborating the aforementioned submission, learned counsel pointed
out that the plain reading of clauses 4 and 5 (b) with their note and
clause 12 of the policy clearly show that the respondent's claim was
excluded from the policy issued by the appellant because it was in relation
to the items which were kept in display window and out of safe at the time
of burglary.
17) In other words, the submission was that the respondent's claim was
not covered under the policy and was expressly excluded by virtue of
clauses 4 and 5(b) read with clause 12 of the policy because firstly, the
burglary in the shop took place in night hours and secondly, the stolen
articles were kept in display window and outside the safe.
18) Learned counsel, therefore, urged that due to these two admitted
facts, the note appended to clauses 4 and 5 read with clause 12 was
attracted rendering the respondent's complaint as not maintainable.
19) Learned counsel further pointed out that the respondent despite
knowing these clauses of the proposal form/policy instead of seeking any
clarification regarding meaning of the clauses paid the premium pursuant
thereto the appellant issued the Insurance policy on the terms and
conditions set out therein which are binding on both parties while
adjudicating their rights against each other arising out of the policy.
20) Learned counsel, in the second place, submitted that the language of
clauses 4, 5 and 12 being plain, clear and unambiguous conveying only one
meaning, the appellant had every right to rely upon these clauses while
opposing the respondent's complaint on merits.
21) Learned counsel, therefore, submitted that in the light of these
facts, the respondent had no right to file a complaint against the
appellant seeking monetary compensation for the loss alleged to have been
suffered by them arising out of burglary of their articles stolen from
their shop. Such claim, according to learned counsel, was barred by virtue
of clauses 4, 5 and 12 of the policy and was therefore, liable to be
dismissed as being untenable.
22) In support of his submission, learned counsel placed reliance on the
decisions in General Assurance Society Ltd. vs. Chandumull Jain & Anr.,
AIR 1966 SC 1644 = (1966) 3 SCR 500, United India Insurance Co. Ltd. vs.
Harchand Rai Chandan Lal (2004) 8 SCC 644, Oriental Insurance Co. Ltd. vs.
Sony Cheriyan, (1999) 6 SCC 451, Rahee Industries Ltd. vs. Export Credit
Guarantee Corporation of India Ltd. & Anr., (2009) 1 SCC 138, Sikka Papers
Ltd. vs. National Insurance Co. Ltd. & Ors., (2009) 7 SCC 777, Vikram
Greentech India Ltd. & Anr. vs. New India Assurance Co. Ltd., (2009) 5 SCC
599, New India Assurance Co. Ltd. vs. Zuari Industries Ltd. & Ors., (2009)
9 SCC 70, Amravati District Central Cooperative Bank Ltd. vs. United India
Fire and General Insurance Co. Ltd., (2010) 5 SCC 294, Suraj Mal Ram Niwas
Oil Mills P. Ltd. vs. United India Insurance Co. Ltd. & Anr., (2010) 10 SCC
567, Deokar Exports P. Ltd. vs. New India Assurance Co. Ltd., (2008) 14
SCC 598, Export Credit Guarantee Corp. of India Ltd. vs. Garg Sons
International, (2014) 1 SCC 686 and Rust vs. Abbey Life Assurance Co. Ltd.
& Anr., (1979) Vol.2 Lloyd’s Law Reports 334.
23) In reply, Mr. H. Ahmadi, learned senior counsel appearing for the
respondent while supporting the impugned order contended that the
issue involved in this case needs to be decided in the light of the
principle underlined in the rule known as "contra proferentem rule”.
According to learned counsel, there is an ambiguity in the language/words
of clauses 4 and 5 of the proposal form and since the ambiguity noticed
created some confusion as to what these clauses actually provide and expect
the respondent to comply at the time of filling the proposal form for
obtaining the insurance policy, this Court should interpret the clauses by
applying the principle underlined in the aforesaid rule in such a way that
its benefit would go to the respondent rather than to the appellant. It was
also his submission that the appellant being the author of the proposal and
policy are not entitled to claim the benefit of the clauses of proposal
form/policy in their favour thereby defeating the rights of the respondent
which they have got under the policy to enforce against the appellant for
claiming the compensation.
24) Learned counsel also contended that the respondent had intended to
insure all their articles kept in the shop regardless of timings and the
manner in keeping the articles in their shop. He also pointed out that the
respondent having paid the full premium for the articles which were valued
at Rs. 2 crore as disclosed by the respondent in clauses 4 and 5 and
therefore the respondent was entitled to claim compensation for the loss of
the stolen items (jewelry) treating them as insured and covered under the
policy, issued in their favour.
25) So far as the connected appeal filed by the respondent-Complainant is
concerned, the submission of the learned senior counsel for the respondent
was that the Commission erred in not allowing their complaint in its
entirety despite availability of evidence on record. Learned counsel,
therefore, prayed for dismissal of the appellant's appeal and allowing the
appeal filed by the respondent by enhancing the quantum of compensation as
claimed by the respondent in the complaint.
26) Learned senior counsel also placed reliance on the same decisions
which were cited by learned senior counsel for the appellant and contended
that the law laid down therein also supports the respondent's case.
27) Having heard the learned counsel for the parties and on perusal of
the record of the case including the written submissions, we find force in
the submissions of learned counsel for the appellant (Insurance company-
Insurer).
28) The question which arises for consideration in this appeal is whether
the Commission was justified in allowing the complaint filed by the
respondent against the appellant-Insurance Company in part and was,
therefore, justified in awarding a sum of Rs.36,10,211/- to the respondent.
29) In order to answer the aforementioned question, clauses 4, 5 of the
proposal form and clause 12 of the policy need mention infra.
(1)
|4 |WINDOW DISPLAY | |
| |State the approximate value | |
| |of any of article of |Rs.3,50,5000/- |
| |Jewellery or Gem stock which | |
| |will be displayed in the | |
| |window (A pad or tray | |
| |containing a number of rings | |
| |or other articles to be | |
| |counted as one article). | |
| |(Give separate answer for | |
| |each location). | |
| |Note : Window display at | |
| |night is not covered. | |
|5 |STOCK | |
| |a. What was (i) the average |(a)(i)New Shop |
| |daily total value of your |(b)(iii)New shop |
| |stock during the past 12 | |
| |months? | |
| |(ii) Will the whole of your |(b) All stocks of |
| |stock when on your premises |Gold, Diamond, |
| |be kept in safe at night and |Gems, Silver and |
| |at all times when the state |other precious |
| |value and class of stock |stones-kept outside|
| |which will left outside |the |
| |safes. |safe-Rs.2,00,00,000|
| |Note : We do not cover |(Two crores). |
| |stocks kept out of the | |
| |safe---business hours at | |
| |night. | |
(2)
The company shall not be liable for under this policy in respect of
1 to 11………….
12. Loss or damage to property, insured whilst in window display at night
or whilst kept out of safe after business hours.”
30) Before we examine the issue involved in the case, it is necessary to
take note of the law laid down on the subject by the Constitution Bench of
this Court in General Assurance Society Ltd. vs. Chandumull Jain & Anr.,
AIR 1966 SC 1644.
31) The Constitution Bench in this case has explained the true nature of
contract relating to Insurance and laid down the relevant factors which the
courts should keep in mind while interpreting the contract of insurance.
32) Justice Hidayatullah, J. (as His Lordship then was) speaking for the
Bench in his distinctive style of writing held in Para 11 as under:
“11. A contract of insurance is a species of commercial transactions and
there is a well established commercial practice to send cover notes even
prior to the completion of a proper proposal or while the proposal is being
considered or a policy is in preparation for delivery. A cover note is a
temporary and limited agreement. It may be self contained or it may
incorporate by reference the terms and conditions of the future policy.
When the cover note incorporates the policy in this manner, it does not
have to recite the term and conditions, but merely to refer to a particular
standard policy. If the proposal is for a standard policy and the cover
note refers to it, the assured is taken to have accepted the terms of that
policy. The reference to the policy and its terms and conditions may be
expressed in the proposal or the cover note or even in the letter of
acceptance including the cover note. The incorporation of the terms and
conditions of the policy may also arise from a combination of references in
two or more documents passing between the parties. Documents like the
proposal, cover note and the policy are commercial documents and to
interpret them commercial habits and practice cannot altogether be ignored.
During the time the cover note operates, the relations of the parties are
governed by its terms and conditions, if any, but more usually by the terms
and conditions of the policy bargained for and to be issued. When this
happens the terms of the policy are incipient but after the period of
temporary cover, the relations are governed only by the terms and
conditions of the policy unless insurance is declined in the meantime.
Delay in issuing the policy makes no difference. The relations even then
are governed by the future policy if the cover notes give sufficient
indication that it would be so. In other respects there is no difference
between a contract of insurance and any other contract except that in a
contract of insurance there is a requirement of uberrima fides i.e. good
faith on the part of the assured and the contract is likely to be construed
contra proferentem that is against the company in case of ambiguity or
doubt. A contract is formed when there is an unqualified acceptance of the
proposal. Acceptance may be expressed in writing or it may even be implied
if the insurer accepts the premium and retains it. In the case of the
assured, a positive act on his part by which he recognises or seeks to
enforce the policy amounts to an affirmation of it. This position was
clearly recognised by the assured himself, because he wrote, close upon the
expiry of the time of the cover notes, that either a policy should be
issued to him before that period had expired or the cover note extended in
time. 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.”
33) Keeping in view the aforesaid principle of law in mind and applying
the same to the facts of the case, we proceed to examine the issue involved
in this appeal.
34) Mere perusal of the note appended to clause 4 quoted above would go
to show that the appellant (Insurance Company) had made it clear in the
proposal form itself that "window display of articles at night is not
covered". This clearly meant that the insurance coverage was given to the
articles kept in "window display during day time in business hours" whereas
insurance coverage was not given to the articles when they were kept in
"window display at night".
35) In other words, if the burglary had been committed during day time in
business hours and in that burglary, the articles kept in display window
were stolen then in such circumstances, the appellant was liable to
reimburse the loss to the respondent of such stolen articles as insured
articles under the policy. But if the burglary had been committed of the
articles kept in display window during night time (after business hours)
then in such circumstances the appellant having made it clear to the
respondent in the note in clause 4 that they would not be liable to
indemnify the loss of any such articles kept in display window after
business hours, the respondent was not entitled to claim any compensation
for the loss of any such stolen articles. In other words, the insurance
coverage was not extended to such stolen articles under the policy.
36) Similarly, mere perusal of note appended to clause 5 quoted above
would go to show that the appellant had made it clear in the proposal form
itself to the respondent that "stock which is kept out of the safe after
business hours at night" is not covered under the policy. This clearly
meant that "stock kept out of safe during business hours", if stolen, was
insured and given coverage under the policy but if it was kept out of safe
after business hours at night, then it was not covered under the policy and
therefore, the appellant was not liable to indemnify the loss sustained by
the respondent of any such stolen articles.
37) In other words, if the burglary had been committed during day time in
business hours then the appellant was liable to reimburse the loss to the
respondent of the stolen articles treating them as insured articles under
the policy. But if the burglary had been committed of the stock/articles
kept out of safe after business hours at night then in such circumstances
the appellant was not liable to indemnify the loss of any such stolen
articles by virtue of note appended to clause 5. In these circumstances,
the respondent was not entitled to claim any compensation for the loss
sustained in the burglary of any such stolen articles.
38) In our considered opinion, there is neither any ambiguity nor
vagueness and nor absurdity in the language/wording of note appended to
clauses 4 or/and 5. On the other hand, we find that the language/wording
of the note in both the clauses is plain, clear, unambiguous and creates no
confusion in the mind of the reader about its meaning. That apart clause 12
of the policy, in clear terms, provides that the appellant would not be
liable to indemnify any loss under the policy if such loss or damage to the
insured property occurs while the insured property was kept in window
display at night or while it was kept out of safe after business hours.
39) This takes us to the next submission of Mr. Ahmadi, learned senior
counsel for the respondent that we should apply the rule of contra
proferentum to interpret clauses 4 and 5 because according to him there is
an ambiguity in the language/wording of clauses 4 and 5 and secondly, the
appellant being the author of these clauses has no right to take benefit of
the ambiguity to defeat the rights of the respondent. Learned counsel
maintained that the interpretation of the clauses should, therefore, be
made in such a way that its benefit would go to the respondent (insured)
for claiming compensation from the appellants. We cannot accept this
submission of learned counsel for the respondent for more than one reason.
40) In Halsbury's Laws of England (fifth edition- Volume 60 Para 105 )
principle of contra proferentem rule is stated thus :
“Contra proferentem rule. Where there is ambiguity in the policy the court
will apply the contra proferentem rule. Where a policy is produced by the
insurers, it is their business to see that precision and clarity are
attained and, if they fail to do so, the ambiguity will be resolved by
adopting the construction favourable to the insured. Similarly, as regards
language which emanates from the insured, such as the language used in
answer to questions in the proposal or in a slip, a construction favourable
to the insurers will prevail if the insured has created any ambiguity.
This rule, however, only becomes operative where the words are truly
ambiguous; it is a rule for resolving ambiguity and it cannot be invoked
with a view to creating a doubt. Therefore, where the words used are free
from ambiguity in the sense that, fairly and reasonably construed, they
admit of only one meaning, the rule has no application.”
41) The aforesaid rule, in our considered opinion, has no application to
the facts of this case. It is for the reason that firstly, we find that
there is no ambiguity in the language/wording used in clauses 4 and 5. In
other words, as held above, the language/wording of clauses 4 and 5 and the
note appended thereto is clear, plain and unambiguous and carries only one
meaning. Secondly, in the absence of any ambiguity, the respondent is not
entitled to invoke the principle underlined in the rule of contra
proferentem for interpreting the clauses of the policy and lastly, presence
of ambiguity in the language of policy being sine qua non for invocation of
the contra proferentem rule, which is not present here, we cannot apply the
rule for deciding the issue involved in case.
42) It is a settled rule of interpretation that when the words of a
statute are clear, plain or unambiguous, i.e., they are reasonably
susceptible to only one meaning, the courts are bound to give effect to
that meaning irrespective of consequences. In other words, when a language
is plain and unambiguous and admits of only one meaning, no question of
construction of a statue arises, for the Act speaks for itself. Equally
well-settled rule of interpretation is that whenever the NOTE is appended
to the main Section, it is explanatory in nature to the main Section and
explains the true meaning of the main Section and has to be read in the
context of main Section (See - G.P.Singh -Principle of Statutory
Interpretation 13th Edition page 50 and 172). This analogy, in our
considered opinion, equally applies while interpreting the words used in
any contract.
43) Coming now to the facts of the case, it is not in dispute that the
burglary took place in the respondent's shop during night hours on
02.06.1995 when the burglars took away the jewelry (gold/silver ornaments)
kept in display window and jewelry lying out of safe. The appellant was,
therefore, justified in contending that the stolen articles were not
covered under the policy by virtue of clauses 4, 5 of Proposal Form and
Clause 12 of the policy and no liability could be fastened on them to
indemnify the loss of such articles for awarding any compensation to the
respondent. Indeed clauses 4, 5 and 12 were clearly attracted in
appellant’s favour.
44) We do not agree to the submission of Mr. Ahmadi, learned senior
counsel for the respondent that once the respondent disclosed their
intention to get their stock (ornaments) valued at Rs 2 Crores insured with
the appellant by filling the details in Columns 4 and 5 of the proposal
form and once they paid the necessary premium to the appellant, the
respondent became entitled to claim loss of the stolen items from the
appellant treating the stolen items as insured under the policy regardless
of note contained in clauses 4 , 5 and clause 12 of the policy. In our
view, the submission has a fallacy.
45) Firstly, as mentioned above, if the burglary had taken place during
day time in business hours in respect of the items kept in display window
or out of safe, the appellant was liable to compensate the respondent for
the entire loss suffered by them treating the stolen items as insured items
under the policy. In other words, if the burglary had taken place during
business hours then item kept in display window or those lying out of safe
were covered under the policy.
46) Likewise, if the burglary had taken place during night in relation to
the items kept in the safe, then also the appellant was liable to
compensate the loss suffered by the respondent in burglary treating the
stolen items as insured items under the policy.
47) In both the category of cases mentioned above, the appellant was not
entitled to rely upon clauses 4, 5 and 12 to avoid their liability because
both the instances did not fall either in clause 4 or clause 5 or clause
12. However, this was not the case set up by the respondent against the
appellant.
48) On the other hand, it is the case of the respondent that the burglary
took place at night and the insured items kept in display window and some
lying out of safe were stolen. Due to these facts, clauses 4, 5 and 12 were
attracted against the respondent.
49) In order to claim benefit of the policy, it was obligatory upon the
respondent to have removed the insured items from display window everyday
after business hours and keep them inside safe during night hours till
opening of the shop next day. Like wise all insured items in side the shop
should also have been kept in side the safe everyday after business hours
till opening of the shop next day. It was, however, not done by the
respondent.
50) A contract of insurance is one of the species of commercial
transaction between the insurer and insured. It is for the parties
(insurer/insured) to decide as to what type of insurance they intend to do
to secure safety of the goods and how much premium the insured wish to pay
to secure insurance of their goods as provided in the tariff. If the
insured pays additional premium to the insurer to secure more safety and
coverage of their insured goods, it is permissible for them to do so. In
this case, the respondent did not pay any additional premium to get the
coverage of even two instances mentioned above to avoid rigour of note of
clauses 4, 5 and clause 12.
51) In view of foregoing discussion, we cannot concur with the reasoning
and the conclusion arrived at by the Commission. The appeal filed by the
insurance company, i.e., Civil Appeal No. 2140 of 2007, therefore, deserves
to be allowed. It is accordingly allowed. Impugned order is set aside. As a
consequence thereof, the complaint filed by the respondent against the
appellant out of which this appeal arises is dismissed. No costs.
Civil Appeal No. 5141 of 2007
In the light of the order passed in Civil Appeal No. 2140 of 2007, it is
not necessary to examine the merits of the claim filed by the Complainant,
which has been rendered infructuous. The appeal thus fails and is dismissed
as having rendered infructuous. No costs.
.……...................................J.
[J. CHELAMESWAR]
………..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi,
January 13, 2016.
-----------------------
32
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.2140 OF 2007
United India Insurance Co. Ltd. ……Appellant(s)
VERSUS
M/s Orient Treasures Pvt. Ltd. ……Respondent(s)
WITH
CIVIL APPEAL No.5141 OF 2007
M/s Orient Treasures Pvt. Ltd. ……Appellant(s)
VERSUS
United India Insurance Co. Ltd. ……Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
C.A. No. 2140 of 2007
1) This appeal under Section 23 of the Consumer Protection Act, 1986 is
filed against the order dated 19.03.2007 of the National Consumer Disputes
Redressal Commission (hereinafter referred to as “the Commission”), New
Delhi in Original Petition No. 375 of 1999 whereby the Commission allowed
the petition filed by the respondent herein and directed the appellant-
insurance company to pay a sum of Rs.36,10,211/- with interest @10% p.a.
from 03.12.1995 till date of payment and also directed the insurance
company to pay costs assessed at Rs.50,000/- to the respondent-Complainant
herein.
2) In order to appreciate the issue involved in this appeal, which lies
in a narrow compass, it is necessary to set out the relevant facts in brief
infra.
3) The appellant herein is an insurance company incorporated under the
Companies Act having its registered office at No. 24, Whites Road, Chennai.
The respondent herein is also a company incorporated under the Companies
Act, 1956 having its registered office at Oceanic Buildings, Quilon, Kerala
and its branches inter alia at Janpriya Centre No.34, Sir Thyagaraya Road,
Pondy Bazar, Chennai.
4) The respondent herein is the complainant. They are engaged in the
business of sale of various kinds of Jewellery. The respondent is having
their jewellery shop known as “Kanchana Mahal” which is situated at
Janpriya Centre No.34, Sir Thyagaraya Road, Pondy Bazar, Chennai.
5) The respondent had insured their jewellery kept in their shop with
the appellant under successive “Jewellers Block Policies” with effect from
02.07.1993 onwards. The procedure followed was that the respondent was
required to submit proposal form. On receipt of the proposal form, the
officials of the appellant-insurance company used to inspect the shop to
verify the security and storage particulars.
6) The respondent filled up the insurance proposal form by providing
necessary information as mentioned in the form. On the basis of the said
proposal form, the appellant issued an insurance policy in favour of the
respondent from 02.07.1993 to 01.07.1994. It was then subsequently renewed
for further one year, i.e. from 02.07.1994 to 01.07.1995.
7) On 02.06.1995, the respondent alleged that there was a burglary in
their Jewellery shop. According to the respondent, on the night of
02.06.1995, burglars broke open the locks of shutters, entered the shop and
decamped with the gold and silver ornaments valued at Rs.40,63,735.53. The
respondent accordingly lodged FIR at the concerned Police Station on
03.06.1995. The respondent also informed the appellant on 03.06.1995 by a
telegraphic communication about this incident. By letter dated 05.06.1995,
the appellant informed the respondent that a Surveyor has been appointed to
assess the loss suffered by the respondent in the burglary. The surveyor
then inspected the site and also examined all the relevant material, books,
inventory etc. with a view to assess the actual loss alleged to have been
suffered by the respondent and accordingly assessed the total loss at
Rs.36,10,211/. Thereafter he submitted his report. After investigation,
the police also submitted a final investigation report on 24.06.1995
treating the case as untraceable.
8) The respondent then submitted their claim with the appellant on the
basis of the Insurance Policy and claimed that they are entitled to receive
the value of Jewellery which they lost in burglary committed in their shop
on 02.06.1995. On 19.01.1998, the Divisional Manager of the Insurance
Company, Tuticorin after examining the respondent’s claim for loss of their
Jewellery repudiated the claim inter alia on the ground that the stolen
gold ornaments and silver articles were found to had been kept on display
window and in the sales counters at the time of burglary which took place
in the night of 02.06.1995, which according to appellant, was contrary to
the terms of the policy and, therefore, not covered in the policy. In other
words, such items were not insured. It was further stated that the policy
was issued subject to the terms, conditions, warranties and exclusion
printed in the proposal form which was a part of policy. The appellant
relied on clause 12 of the policy and stated that since the burglary in the
shop took place during night and stolen articles kept in window display
and lying out of safe in the shop were stolen, the appellant could not be
made liable to indemnify such loss which, according to them, was not
insured and specifically excluded from the insurance policy.
9) Being aggrieved by the decision of the appellant-Insurance Company,
the Respondent sent letters and reminders pointing out therein the terms of
the proposal form and policy and insisted that the loss was fully covered
by the policy and hence they were entitled to claim the value of the lost
articles from the appellant on the basis of Insurance Policy. As nothing
was done, the respondent filed a complaint before the National Consumer
Disputes Redressal Commission, New Delhi (hereinafter referred to as “the
Commission”) being Original Petition No. 375 of 1999 claiming a sum of
Rs.1,32,06,786.30.
10) By order dated 19.03.2007, the Commission partly allowed the
petition filed by the respondent and directed the appellant-Insurance
Company to pay a sum of Rs.36,10,211/- with interest @ 10% p.a. from
03.12.1995 till date of payment and also directed the Insurance Company to
pay costs assessed at Rs.50,000/- to the respondent.
11) Aggrieved by the said order, the appellant-Insurance Company has
filed this appeal.
12) Dissatisfied with the claim awarded by the Commission, the respondent
has filed C.A. No. 5141 of 2007 seeking enhancement in the quantum of
claim. According to the respondent, they are entitled to claim a sum of
Rs.1,32,06,786.30 as against Rs. 36,10,211/- awarded by the Commission.
13) Heard Mr. P.P. Malhotra, learned senior counsel for the appellant and
Mr. H. Ahmadi, learned senior counsel for the respondent.
14) Shri P.P.Malhotra, learned senior counsel appearing for the appellant
while assailing the legality and correctness of the impugned order mainly
urged two points in support of his submissions.
15) In the first place, learned senior counsel urged that the Commission
erred in partly allowing the complaint filed by the respondent herein by
passing the impugned award against the appellant. According to learned
counsel, had the Commission properly interpreted clauses 4 and 5 of the
proposal form, which was part of the policy along with clause 12 of the
policy then in such event, the respondent's complaint was liable to be
dismissed in its entirety.
16) Elaborating the aforementioned submission, learned counsel pointed
out that the plain reading of clauses 4 and 5 (b) with their note and
clause 12 of the policy clearly show that the respondent's claim was
excluded from the policy issued by the appellant because it was in relation
to the items which were kept in display window and out of safe at the time
of burglary.
17) In other words, the submission was that the respondent's claim was
not covered under the policy and was expressly excluded by virtue of
clauses 4 and 5(b) read with clause 12 of the policy because firstly, the
burglary in the shop took place in night hours and secondly, the stolen
articles were kept in display window and outside the safe.
18) Learned counsel, therefore, urged that due to these two admitted
facts, the note appended to clauses 4 and 5 read with clause 12 was
attracted rendering the respondent's complaint as not maintainable.
19) Learned counsel further pointed out that the respondent despite
knowing these clauses of the proposal form/policy instead of seeking any
clarification regarding meaning of the clauses paid the premium pursuant
thereto the appellant issued the Insurance policy on the terms and
conditions set out therein which are binding on both parties while
adjudicating their rights against each other arising out of the policy.
20) Learned counsel, in the second place, submitted that the language of
clauses 4, 5 and 12 being plain, clear and unambiguous conveying only one
meaning, the appellant had every right to rely upon these clauses while
opposing the respondent's complaint on merits.
21) Learned counsel, therefore, submitted that in the light of these
facts, the respondent had no right to file a complaint against the
appellant seeking monetary compensation for the loss alleged to have been
suffered by them arising out of burglary of their articles stolen from
their shop. Such claim, according to learned counsel, was barred by virtue
of clauses 4, 5 and 12 of the policy and was therefore, liable to be
dismissed as being untenable.
22) In support of his submission, learned counsel placed reliance on the
decisions in General Assurance Society Ltd. vs. Chandumull Jain & Anr.,
AIR 1966 SC 1644 = (1966) 3 SCR 500, United India Insurance Co. Ltd. vs.
Harchand Rai Chandan Lal (2004) 8 SCC 644, Oriental Insurance Co. Ltd. vs.
Sony Cheriyan, (1999) 6 SCC 451, Rahee Industries Ltd. vs. Export Credit
Guarantee Corporation of India Ltd. & Anr., (2009) 1 SCC 138, Sikka Papers
Ltd. vs. National Insurance Co. Ltd. & Ors., (2009) 7 SCC 777, Vikram
Greentech India Ltd. & Anr. vs. New India Assurance Co. Ltd., (2009) 5 SCC
599, New India Assurance Co. Ltd. vs. Zuari Industries Ltd. & Ors., (2009)
9 SCC 70, Amravati District Central Cooperative Bank Ltd. vs. United India
Fire and General Insurance Co. Ltd., (2010) 5 SCC 294, Suraj Mal Ram Niwas
Oil Mills P. Ltd. vs. United India Insurance Co. Ltd. & Anr., (2010) 10 SCC
567, Deokar Exports P. Ltd. vs. New India Assurance Co. Ltd., (2008) 14
SCC 598, Export Credit Guarantee Corp. of India Ltd. vs. Garg Sons
International, (2014) 1 SCC 686 and Rust vs. Abbey Life Assurance Co. Ltd.
& Anr., (1979) Vol.2 Lloyd’s Law Reports 334.
23) In reply, Mr. H. Ahmadi, learned senior counsel appearing for the
respondent while supporting the impugned order contended that the
issue involved in this case needs to be decided in the light of the
principle underlined in the rule known as "contra proferentem rule”.
According to learned counsel, there is an ambiguity in the language/words
of clauses 4 and 5 of the proposal form and since the ambiguity noticed
created some confusion as to what these clauses actually provide and expect
the respondent to comply at the time of filling the proposal form for
obtaining the insurance policy, this Court should interpret the clauses by
applying the principle underlined in the aforesaid rule in such a way that
its benefit would go to the respondent rather than to the appellant. It was
also his submission that the appellant being the author of the proposal and
policy are not entitled to claim the benefit of the clauses of proposal
form/policy in their favour thereby defeating the rights of the respondent
which they have got under the policy to enforce against the appellant for
claiming the compensation.
24) Learned counsel also contended that the respondent had intended to
insure all their articles kept in the shop regardless of timings and the
manner in keeping the articles in their shop. He also pointed out that the
respondent having paid the full premium for the articles which were valued
at Rs. 2 crore as disclosed by the respondent in clauses 4 and 5 and
therefore the respondent was entitled to claim compensation for the loss of
the stolen items (jewelry) treating them as insured and covered under the
policy, issued in their favour.
25) So far as the connected appeal filed by the respondent-Complainant is
concerned, the submission of the learned senior counsel for the respondent
was that the Commission erred in not allowing their complaint in its
entirety despite availability of evidence on record. Learned counsel,
therefore, prayed for dismissal of the appellant's appeal and allowing the
appeal filed by the respondent by enhancing the quantum of compensation as
claimed by the respondent in the complaint.
26) Learned senior counsel also placed reliance on the same decisions
which were cited by learned senior counsel for the appellant and contended
that the law laid down therein also supports the respondent's case.
27) Having heard the learned counsel for the parties and on perusal of
the record of the case including the written submissions, we find force in
the submissions of learned counsel for the appellant (Insurance company-
Insurer).
28) The question which arises for consideration in this appeal is whether
the Commission was justified in allowing the complaint filed by the
respondent against the appellant-Insurance Company in part and was,
therefore, justified in awarding a sum of Rs.36,10,211/- to the respondent.
29) In order to answer the aforementioned question, clauses 4, 5 of the
proposal form and clause 12 of the policy need mention infra.
(1)
|4 |WINDOW DISPLAY | |
| |State the approximate value | |
| |of any of article of |Rs.3,50,5000/- |
| |Jewellery or Gem stock which | |
| |will be displayed in the | |
| |window (A pad or tray | |
| |containing a number of rings | |
| |or other articles to be | |
| |counted as one article). | |
| |(Give separate answer for | |
| |each location). | |
| |Note : Window display at | |
| |night is not covered. | |
|5 |STOCK | |
| |a. What was (i) the average |(a)(i)New Shop |
| |daily total value of your |(b)(iii)New shop |
| |stock during the past 12 | |
| |months? | |
| |(ii) Will the whole of your |(b) All stocks of |
| |stock when on your premises |Gold, Diamond, |
| |be kept in safe at night and |Gems, Silver and |
| |at all times when the state |other precious |
| |value and class of stock |stones-kept outside|
| |which will left outside |the |
| |safes. |safe-Rs.2,00,00,000|
| |Note : We do not cover |(Two crores). |
| |stocks kept out of the | |
| |safe---business hours at | |
| |night. | |
(2)
The company shall not be liable for under this policy in respect of
1 to 11………….
12. Loss or damage to property, insured whilst in window display at night
or whilst kept out of safe after business hours.”
30) Before we examine the issue involved in the case, it is necessary to
take note of the law laid down on the subject by the Constitution Bench of
this Court in General Assurance Society Ltd. vs. Chandumull Jain & Anr.,
AIR 1966 SC 1644.
31) The Constitution Bench in this case has explained the true nature of
contract relating to Insurance and laid down the relevant factors which the
courts should keep in mind while interpreting the contract of insurance.
32) Justice Hidayatullah, J. (as His Lordship then was) speaking for the
Bench in his distinctive style of writing held in Para 11 as under:
“11. A contract of insurance is a species of commercial transactions and
there is a well established commercial practice to send cover notes even
prior to the completion of a proper proposal or while the proposal is being
considered or a policy is in preparation for delivery. A cover note is a
temporary and limited agreement. It may be self contained or it may
incorporate by reference the terms and conditions of the future policy.
When the cover note incorporates the policy in this manner, it does not
have to recite the term and conditions, but merely to refer to a particular
standard policy. If the proposal is for a standard policy and the cover
note refers to it, the assured is taken to have accepted the terms of that
policy. The reference to the policy and its terms and conditions may be
expressed in the proposal or the cover note or even in the letter of
acceptance including the cover note. The incorporation of the terms and
conditions of the policy may also arise from a combination of references in
two or more documents passing between the parties. Documents like the
proposal, cover note and the policy are commercial documents and to
interpret them commercial habits and practice cannot altogether be ignored.
During the time the cover note operates, the relations of the parties are
governed by its terms and conditions, if any, but more usually by the terms
and conditions of the policy bargained for and to be issued. When this
happens the terms of the policy are incipient but after the period of
temporary cover, the relations are governed only by the terms and
conditions of the policy unless insurance is declined in the meantime.
Delay in issuing the policy makes no difference. The relations even then
are governed by the future policy if the cover notes give sufficient
indication that it would be so. In other respects there is no difference
between a contract of insurance and any other contract except that in a
contract of insurance there is a requirement of uberrima fides i.e. good
faith on the part of the assured and the contract is likely to be construed
contra proferentem that is against the company in case of ambiguity or
doubt. A contract is formed when there is an unqualified acceptance of the
proposal. Acceptance may be expressed in writing or it may even be implied
if the insurer accepts the premium and retains it. In the case of the
assured, a positive act on his part by which he recognises or seeks to
enforce the policy amounts to an affirmation of it. This position was
clearly recognised by the assured himself, because he wrote, close upon the
expiry of the time of the cover notes, that either a policy should be
issued to him before that period had expired or the cover note extended in
time. 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.”
33) Keeping in view the aforesaid principle of law in mind and applying
the same to the facts of the case, we proceed to examine the issue involved
in this appeal.
34) Mere perusal of the note appended to clause 4 quoted above would go
to show that the appellant (Insurance Company) had made it clear in the
proposal form itself that "window display of articles at night is not
covered". This clearly meant that the insurance coverage was given to the
articles kept in "window display during day time in business hours" whereas
insurance coverage was not given to the articles when they were kept in
"window display at night".
35) In other words, if the burglary had been committed during day time in
business hours and in that burglary, the articles kept in display window
were stolen then in such circumstances, the appellant was liable to
reimburse the loss to the respondent of such stolen articles as insured
articles under the policy. But if the burglary had been committed of the
articles kept in display window during night time (after business hours)
then in such circumstances the appellant having made it clear to the
respondent in the note in clause 4 that they would not be liable to
indemnify the loss of any such articles kept in display window after
business hours, the respondent was not entitled to claim any compensation
for the loss of any such stolen articles. In other words, the insurance
coverage was not extended to such stolen articles under the policy.
36) Similarly, mere perusal of note appended to clause 5 quoted above
would go to show that the appellant had made it clear in the proposal form
itself to the respondent that "stock which is kept out of the safe after
business hours at night" is not covered under the policy. This clearly
meant that "stock kept out of safe during business hours", if stolen, was
insured and given coverage under the policy but if it was kept out of safe
after business hours at night, then it was not covered under the policy and
therefore, the appellant was not liable to indemnify the loss sustained by
the respondent of any such stolen articles.
37) In other words, if the burglary had been committed during day time in
business hours then the appellant was liable to reimburse the loss to the
respondent of the stolen articles treating them as insured articles under
the policy. But if the burglary had been committed of the stock/articles
kept out of safe after business hours at night then in such circumstances
the appellant was not liable to indemnify the loss of any such stolen
articles by virtue of note appended to clause 5. In these circumstances,
the respondent was not entitled to claim any compensation for the loss
sustained in the burglary of any such stolen articles.
38) In our considered opinion, there is neither any ambiguity nor
vagueness and nor absurdity in the language/wording of note appended to
clauses 4 or/and 5. On the other hand, we find that the language/wording
of the note in both the clauses is plain, clear, unambiguous and creates no
confusion in the mind of the reader about its meaning. That apart clause 12
of the policy, in clear terms, provides that the appellant would not be
liable to indemnify any loss under the policy if such loss or damage to the
insured property occurs while the insured property was kept in window
display at night or while it was kept out of safe after business hours.
39) This takes us to the next submission of Mr. Ahmadi, learned senior
counsel for the respondent that we should apply the rule of contra
proferentum to interpret clauses 4 and 5 because according to him there is
an ambiguity in the language/wording of clauses 4 and 5 and secondly, the
appellant being the author of these clauses has no right to take benefit of
the ambiguity to defeat the rights of the respondent. Learned counsel
maintained that the interpretation of the clauses should, therefore, be
made in such a way that its benefit would go to the respondent (insured)
for claiming compensation from the appellants. We cannot accept this
submission of learned counsel for the respondent for more than one reason.
40) In Halsbury's Laws of England (fifth edition- Volume 60 Para 105 )
principle of contra proferentem rule is stated thus :
“Contra proferentem rule. Where there is ambiguity in the policy the court
will apply the contra proferentem rule. Where a policy is produced by the
insurers, it is their business to see that precision and clarity are
attained and, if they fail to do so, the ambiguity will be resolved by
adopting the construction favourable to the insured. Similarly, as regards
language which emanates from the insured, such as the language used in
answer to questions in the proposal or in a slip, a construction favourable
to the insurers will prevail if the insured has created any ambiguity.
This rule, however, only becomes operative where the words are truly
ambiguous; it is a rule for resolving ambiguity and it cannot be invoked
with a view to creating a doubt. Therefore, where the words used are free
from ambiguity in the sense that, fairly and reasonably construed, they
admit of only one meaning, the rule has no application.”
41) The aforesaid rule, in our considered opinion, has no application to
the facts of this case. It is for the reason that firstly, we find that
there is no ambiguity in the language/wording used in clauses 4 and 5. In
other words, as held above, the language/wording of clauses 4 and 5 and the
note appended thereto is clear, plain and unambiguous and carries only one
meaning. Secondly, in the absence of any ambiguity, the respondent is not
entitled to invoke the principle underlined in the rule of contra
proferentem for interpreting the clauses of the policy and lastly, presence
of ambiguity in the language of policy being sine qua non for invocation of
the contra proferentem rule, which is not present here, we cannot apply the
rule for deciding the issue involved in case.
42) It is a settled rule of interpretation that when the words of a
statute are clear, plain or unambiguous, i.e., they are reasonably
susceptible to only one meaning, the courts are bound to give effect to
that meaning irrespective of consequences. In other words, when a language
is plain and unambiguous and admits of only one meaning, no question of
construction of a statue arises, for the Act speaks for itself. Equally
well-settled rule of interpretation is that whenever the NOTE is appended
to the main Section, it is explanatory in nature to the main Section and
explains the true meaning of the main Section and has to be read in the
context of main Section (See - G.P.Singh -Principle of Statutory
Interpretation 13th Edition page 50 and 172). This analogy, in our
considered opinion, equally applies while interpreting the words used in
any contract.
43) Coming now to the facts of the case, it is not in dispute that the
burglary took place in the respondent's shop during night hours on
02.06.1995 when the burglars took away the jewelry (gold/silver ornaments)
kept in display window and jewelry lying out of safe. The appellant was,
therefore, justified in contending that the stolen articles were not
covered under the policy by virtue of clauses 4, 5 of Proposal Form and
Clause 12 of the policy and no liability could be fastened on them to
indemnify the loss of such articles for awarding any compensation to the
respondent. Indeed clauses 4, 5 and 12 were clearly attracted in
appellant’s favour.
44) We do not agree to the submission of Mr. Ahmadi, learned senior
counsel for the respondent that once the respondent disclosed their
intention to get their stock (ornaments) valued at Rs 2 Crores insured with
the appellant by filling the details in Columns 4 and 5 of the proposal
form and once they paid the necessary premium to the appellant, the
respondent became entitled to claim loss of the stolen items from the
appellant treating the stolen items as insured under the policy regardless
of note contained in clauses 4 , 5 and clause 12 of the policy. In our
view, the submission has a fallacy.
45) Firstly, as mentioned above, if the burglary had taken place during
day time in business hours in respect of the items kept in display window
or out of safe, the appellant was liable to compensate the respondent for
the entire loss suffered by them treating the stolen items as insured items
under the policy. In other words, if the burglary had taken place during
business hours then item kept in display window or those lying out of safe
were covered under the policy.
46) Likewise, if the burglary had taken place during night in relation to
the items kept in the safe, then also the appellant was liable to
compensate the loss suffered by the respondent in burglary treating the
stolen items as insured items under the policy.
47) In both the category of cases mentioned above, the appellant was not
entitled to rely upon clauses 4, 5 and 12 to avoid their liability because
both the instances did not fall either in clause 4 or clause 5 or clause
12. However, this was not the case set up by the respondent against the
appellant.
48) On the other hand, it is the case of the respondent that the burglary
took place at night and the insured items kept in display window and some
lying out of safe were stolen. Due to these facts, clauses 4, 5 and 12 were
attracted against the respondent.
49) In order to claim benefit of the policy, it was obligatory upon the
respondent to have removed the insured items from display window everyday
after business hours and keep them inside safe during night hours till
opening of the shop next day. Like wise all insured items in side the shop
should also have been kept in side the safe everyday after business hours
till opening of the shop next day. It was, however, not done by the
respondent.
50) A contract of insurance is one of the species of commercial
transaction between the insurer and insured. It is for the parties
(insurer/insured) to decide as to what type of insurance they intend to do
to secure safety of the goods and how much premium the insured wish to pay
to secure insurance of their goods as provided in the tariff. If the
insured pays additional premium to the insurer to secure more safety and
coverage of their insured goods, it is permissible for them to do so. In
this case, the respondent did not pay any additional premium to get the
coverage of even two instances mentioned above to avoid rigour of note of
clauses 4, 5 and clause 12.
51) In view of foregoing discussion, we cannot concur with the reasoning
and the conclusion arrived at by the Commission. The appeal filed by the
insurance company, i.e., Civil Appeal No. 2140 of 2007, therefore, deserves
to be allowed. It is accordingly allowed. Impugned order is set aside. As a
consequence thereof, the complaint filed by the respondent against the
appellant out of which this appeal arises is dismissed. No costs.
Civil Appeal No. 5141 of 2007
In the light of the order passed in Civil Appeal No. 2140 of 2007, it is
not necessary to examine the merits of the claim filed by the Complainant,
which has been rendered infructuous. The appeal thus fails and is dismissed
as having rendered infructuous. No costs.
.……...................................J.
[J. CHELAMESWAR]
………..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi,
January 13, 2016.
-----------------------
32
Thursday, February 18, 2016
Until Ringing Bells, Goel had small grocery shop
The whole country is today talking about Ringing Bells, Mohit Goel's Rs 251 smart phone. His father Rajesh Goel, though, sitting in his small grocery shop that proclaims its name to be 'Ram ji' on a grey board, doesn't know what the fuss is all about. He says he always knew his son would do something big. Even in Garhipukhta, a small town in Shamli district of Uttar Pradesh, not many knew about the Goels or their shop. It's a different story today. They are suddenly all that everyone here is discussing.
Goel , who is now also one of the directors of the company, said, "After completing his schooling, Mohit went to Noida and completed his graduation from Amity University. The last time that he was home to meet us, he had expressed his desire to open a company and I loaned him some money to start what he wanted to. Then he started a mobile phone company and told us about his venture. Little did we know what it meant then. It's really big, is it? We also attended the event where Freedom 251 mobile was launched in New Delhi."
Goel , who is now also one of the directors of the company, said, "After completing his schooling, Mohit went to Noida and completed his graduation from Amity University. The last time that he was home to meet us, he had expressed his desire to open a company and I loaned him some money to start what he wanted to. Then he started a mobile phone company and told us about his venture. Little did we know what it meant then. It's really big, is it? We also attended the event where Freedom 251 mobile was launched in New Delhi."
Big Q mark on the product in market.
V A H A N | National Register e-Services
| V A H A N | National Register e-Services |
The vehicle can be driven or allowed to be driven in public place only after registration by registering authority as under the provision of section 39 of Motor Vehicle Act 1988.Procedure for New Vehicle Registration:
The registration procedure includes the vehicle to be inspected physically by Inspecting Authority at Registering Authority Office for its particulars and followed by registration. The documents required to apply the registration are as follows :-
- Form 20 duly filled up.
- Form 21 (Sale certificate) issued by the vehicle dealer
- Attested copy of valid vehicle insurance policy/covernote
- Attested copy of address proof at which vehicle is to be registered.
- Form 34 duly signed by owner and the financer
- Road tax (as applicable)
- Prescribed fee for registration
- Valid Fitness Certificate (if applicable)
- PAN Card or Form 60 & Form 61 (as applicable)
Procedure for Change of Address in Registration Certificate:
The following documents are required for change of address in Registration Certificate.
- Form 33
- Original Registration Certificate.
- Attested copy of valid insurance.
- Attested copy of address proof of the registered owner.
- Attested copy of valid pollution under control certificate.
- Attested copy of PAN Card or Form 60 & 61(as applicable)
- Regarding the change of address in Registration Certificate,where the hypothecation is endorsed in the Registration Certificate, No Objection Certificate from the financer is needed to get the address changed in the Registration Certificate.
Procedure of Re-Registration of already registered motor vehicles brought from one state to other state:
The documents required are as under:
- Other state registration certificate in original.
- Form 28 (NOC in duplicate)
- Form 27
- Form 20
- Attested copy of address proof.
- Attested copy of valid insurance.
- Attested copy of pollution under control certificate.
- Fitness certificate in case of commercial vehicle only.
- Road tax (as applicable)
- Prescribed fee for registration.
- PAN Card or Form 60 & 61(as applicable)
Note:Such registration of vehicle in some of the states are subject to clearance from National Crime Record Bureau. The Transport Department arranges the clearance certificate themselves.
Procedure for Transfer of Ownership on Registration Certificate:
The transfer of ownership of a vehicle is to be applied in the concerned Registering Authority Office where vehicle is already registered and following are the documents to be submitted:-
- Registration certificate in original
- Form 29 duly filled in duplicate (attested one copy)
- Form 30 duly filled in duplicate
- Attested copy of valid insurance certificate
- Attested copy of address proof of purchaser
- Attested copy of valid Pollution Under Control Certificate
- Prescribed fee
- Attested copy of PAN Card or Form 60 & 61(as applicable)
Procedure for Transfer of ownership in case of death of the registered owner:
In such case the application is to be made by the first legal heirs/the person succeeding to the possession of the vehicle with following documents.
- Registration certificate in original
- Form 30 & Form 31 in duplicate with endorsement of the financier if the vehicle is held on hire purchase agreement along with NOC from financier.
- Original copy of death certificate of the registered owner.
- Succession/Survival member Certificate issued by Competent Authority.
- Affidavit by the applicant to this effect and from the other legal heirs relinquishing their right in favor of the applicant.
- Attested copies of valid insurance certificate.
- Attested copy of address proof of Applicant.
- Attested copy of valid PUCC.
- Attested copy of PAN Card or Form 60 & Form 61(as applicable)
- Verification of vehicle on Form 20
For Commercial Vehicle in addition to above:
- Permit surrender slip.
- Challan clearance from Traffic and enforcement branch.
- Tax clearance certificate.
- Valid Fitness Certificate
Procedure for Endorsement of Hypothecation on Registration Certificate:
If a vehicle is purchased on loan from a financier the same could be endorsed in the registration certificate. The following are the documents required:
- Registration certificate in original
- Two copies of Form 34 duly filled (for endorsement of Hypothecation).
- Attested copy of valid insurance.
- Attested copy of address proof of the registered owner.
- Attested copy of valid pollution under control certificate.
- Prescribed fee.
- Attested copy of PAN Card or Form 60 & Form 61(as applicable)
Procedure for Endorsement of Deletion of Hypothecation on Registration Certificate:
If a vehicle is purchased on loan from a financier the same could be endorsed in the registration certificate when the loan is repaid and following are the documents required:
- Registration certificate in original
- Two copies Form 35 duly filled (for deletion of Hypothecation)
- A certificate from financier for having retained full dues from the financier (for deletion case only)
- Attested copy of valid insurance.
- Attested copy of address proof of the registered owner.
- Attested copy of valid pollution under control certificate.
- Prescribed fee
- Attested copy of PAN Card or Form 60 & Form 61(as applicable)
- NOC from financer
If a registered owner of a vehicle intends to take his vehicle to some other state & get the same re-registered there, can apply for NOC on prescribed form-28. The following are the required / formalities to be completed.
- Application on Form 28 (in Quadruplicate)
- Attested copy of the registration certificate.
- Evidence of payment of road tax up-to-date.
- Or no road tax dues certificate from the tax-collection authority.
- Valid PUCC / Valid Insurance.
Procedure for Re-Registration of (pvt.) vehicle:
As per rules registration of any private vehicle is done for a maximum period of 15 yrs. and after completion of 15 yrs every registered owner is required to get his vehicle re-registered from the same Registering Authority office where it is already registered and following documents are required:
- Application on Form 25.
- Registration certificate in original.
- Proof for the payment of up-to-date road tax paid.
- Attested copy of insurance certificate.
- Attested copy of pollution under control certificate.
- Payment of tax dues if any.
- Prescribed fee.
- Attested Copy of PAN card or Form 60 & 61 (as applicable).
Procedure for issue of Duplicate Registration Certificate:
Any registered owner can apply for a duplicate registration certificate in case the original one is either lost or mutilated after submitting following documents:
- Application on Form 26 (in duplicate and one copy duly attested along with the endorsement from the financier of Hypothecated).
- Original copy of the F.I.R/N.C.R.
- Attested copy of valid insurance policy.
- Attested copy of pollution under control certificate.
- Attested copy of address proof.
- Prescribed fee.
- Challan clearance from traffic police & Enforcement wing in commercial vehicles.
- Tax clearance for commercial vehicles.
- Attested copy of PAN Card or Form 60 & 61(as applicable)
Note: Attested copy: means photo copy attested by MLA/ Nigam Parshad/ Gazetted officer/ notary public.
Wednesday, February 17, 2016
Bad debts: Write-offs big fraud, give us defaulter list, orders Supreme Court
Taking suo motu cognizance of News report that Rs 1.14 lakh crore of bad loans had been written off by state-owned banks between 2013 and 2015, the Supreme Court Tuesday ordered the Reserve Bank of India (RBI) to share with it names of all defaulters who owe over Rs 500 crore and continue to lead “lavish lifestyle”.
“People are owing thousands of crore to the public banks… it is a big fraud. Top ten public sector banks have written off Rs 40,000 crore alone in 2015. It is all there in this Indian Express report. Public financial institutions are lending money despite knowing no returns. RBI is supposed to keep a watch on these banks. What are you doing about it?” a bench headed by Chief Justice
T S Thakur asked Solicitor General Ranjit Kumar.
Tonk man held by Gujarat ATS, taken to Ahmedabad
The man, identified as Mohammed Salim Pathan, was taken to Ahmedabad on Saturday night. Interrogation with him is going on.
ATS claimed that Pathan had provided fake documents to Samir Khan to procure a passport from Bhopal. On the same passport, Khan had fled to Pakistan where he was allegedly given training by various terror outfits. Khan was killed in an encounter by Gujarat police in Ahmedabad on October 22, 2002.
Samir, who was also an accused in a policeman's murder case in late 90's. After killing the policeman near Usmanpura (Ahmedabad), Khan fled to Tonk and allegedly stayed at Pathan's place for about 45 days. Pathan, who runs a restaurant, arranged for fake documents for Khan. Khan then procured a passport from Bhopal and fled to Pakistan.
After undergoing training at terror camps, Samir returned to Ahmedabad on a mission to avenge the 2002 communal riots. Several political leaders were his target. However, he was arrested from Geeta Mandir bus depot and later killed in an encounter when he tried to flee from police custody.
Friday, February 12, 2016
National Herald: SC grants personal exemption to Sonia, Rahul
The Supreme Court on Friday exempted Congress president Sonia Gandhi, vice-president Rahul Gandhi and other party leaders from personal appearance before trial court in the National Herald case.
The apex court also expunged all firm findings and observations made against the Congress leaders by Delhi high court while asking them to appear as accused in the case.
Granting personal exemption to the Congress leaders, the apex court said they hold important position and won’t run away.
The court also gave permission to Gandhis and other Congress leaders to raise all issues before the trial court including challenging Swamy’s locus standi in the cheating case.
Wednesday, February 10, 2016
Court jails 14 public servants for misappropriation
A Delhi court has awarded varying jail term of up to seven years to 14 public servants of the Central Water Commission (CWC), including some retired officials, for misappropriating government funds.
Special CBI Judge Vinod Kumar convicted them for various offences punishable under the IPC, including sections 120-B (criminal conspiracy) read with 409 (criminal breach of trust by public servants). Six of these 14 accused were also held guilty for the offences under Prevention of Corruption Act.
Besides these 14 convicts, there were three more accused who had died during pendency of the case lodged in 2001.
“Prosecution has proved that all the convicts (except A2, A16 and A17) have dishonestly misappropriated or converted to their own use the government money. Therefore, I convict them under section 403 (dishonest misappropriation of movable property or converting it to one’s own use) IPC each.
“All the convicts participated in this criminal endeavour, therefore, I convict all of them under section 120-B read with sections 403 and 409 IPC,” the judge said in a 177-page judgement.
The court sentenced convicts Y P Sharma, O P Narang, Jai Kumar Singal, J P Sharma and S K Aggarwal to seven years jail term each, while Chandreshwar Manjhi, Om Prakash, Shiv Sagar Naik, Om Prakash and Hayat Singh were given five years each.
Other two convicts, Jeet Ram Sharma and B M Ghosh, were awarded three year jail term each, while the remaining two, I Yashudanan and Natha Ram Suman, were given one year jail each.
Besides the jail term, the court also imposed varying fines of upto Rs 2.01 lakh on the convicts.
Meanwhile, the court granted bail to four of the 14 convicts, Jeet Ram Sharma, B M Ghosh, I Yashudanan and Natha Ram Suman, till March 23 for filing an appeal.
During trial, all the accused had denied allegations levelled against them by the agency.
According to CBI, the case was registered on the basis of complaint by the then secretary and vigilance officer of CWC against officials of CWC and the Pay and Accounts Office.
CBI said a special audit was conducted by an internal and audit division of controller of accounts on the basis of a complaint received by Controller of Accounts, Ministry of Water Resources, which had alleged that fraudulent payments were made to the officials by the accounts office.
The agency alleged that one of the serious irregularities was wrong withdrawal of pay and allowances to the tune of Rs 23,67,951 from July 1999 to March 2000, of which a sum of Rs 19,30,893 was claimed to have been refunded by concerned official through challans which were found to be fake by the special audit team.
It claimed that several irregularities were also noticed wherein payments were released to unconcerned persons which prima facie established that staff and officials of CWC, in connivance with the officials of Pay and Accounts Office, had defalcated government money by making false and forged bills and vouchers.
CBI alleged that officials of Pay and Accounts Office and account section of CWC had conspired to defraud government money by raising fictitious bills supported with fake sanction orders and got them passed and further fraudulently withdrew the money through cheques.
NRIs can purchase a house in India, rules NCDRC
Non-Resident Indians, who return to the country “every now and then”, can purchase a house in India, the apex consumer commission has said while asking Supertech Ltd to pay around Rs 64 lakh to an NRI for denying possession of a flat in Greater Noida in Uttar Pradesh.
National Consumer Disputes Redressal Commission (NCDRC), presided by Justice J M Malik, directed the firm to pay Rs 63,99,727 to south Delhi resident Reshma Bhagat and her son, Tarun Bhagat, who had booked a flat in the builder’s project in 2008.
The firm was scheduled to hand over its possession to the complainant in 2009 and when it did not construct the house, the Bhagats approached the consumer commission for refund and damages, the complaint said.
The firm had opposed the complaint seeking refund and other damages, claiming that the flat was booked in the name of Tarun, an NRI, and it was not for residing purpose but solely to earn profit and he could not claim to be a ‘consumer’ himself.
The commission rejected the firm’s contention, saying “it cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India. NRIs do come to India, every now and then. Most of the NRIs have to return to their native land. Each NRI wants a house in India. He (Tarun) is an independent person and can purchase any house in India, in his own name.”
The NCDRC also rejected the firm’s claim that the complainants were offered an alternative flat but they rejected it and hence the complaint should be dismissed.
“It is well settled that nobody can force anybody to accept the flat of the choice of the Opposite Party (firm). Any other flat cannot be imposed upon the consumers. They have got their free will to accept or reject the other flats offered to the complainants. It is difficult to fathom why the flat which was promised to be given to complainants, originally, was not given,” it said.
According to the complaint, the complainants had made payment of Rs 63,99,727 to Supertech Ltd in 2008 for a luxurious flat which was to be built in Greater Noida and the flat’s possession was to be given by December, 2009.
The firm, however, did not construct the flat and the complainants approached the commission seeking Rs 1.40 crore from the firm, including interest and damages.
Tuesday, February 9, 2016
Maharashtra govt favours lifting ban on women at Haji Ali
The Maharashtra government, on Tuesday, favoured lifting of the ban on entry of women into the sanctum sanctorum of the Haji Ali shrine unless its controlling authority proves the measure has been put in place as part of its religious practice with reference to Quran.
The BJP-led government's view was conveyed to the court, hearing a petition challenging the ban, by state's advocate general Shrihari Aney.
The Durgah Board, however, told a division bench of Justices V M Kanade and Revati Mohite Dere that the women have been barred from entering the sanctum sanctorum since it houses the tomb of a male saint. In Islam, it is a sin for women to touch a male saint or his tomb, it said, defending the ban.
Petitioner Raju More, however, contested the Board's argument, contending Haji Ali's official website says nobody was actually buried inside the tomb.
"I also gave the court a printout of what is officially mentioned on the Haji Ali's website in support of my argument," he said.
After hearing their contentions, the court asked all the parties to submit their arguments in writing within two weeks.
The court had on February 3 sought the state government's opinion on the PIL challenging the ban.
The HC had indicated last month that it would wait for the Supreme Court's ruling on entry of women in Sabarimala temple in Kerala before deciding on the plea.
A petition in the apex court has sought entry for all women and girls into the Sabarimala temple which prohibits girls and women aged 10-50 years from visiting the shrine.
The Maharashtra government's submission on the issue came amid an ongoing row over a similar ban on women at a Shani temple in Shani Shingnapur. The authorities had recently thwarted an attempt by a women's group to enter the temple's sanctum sanctorum by detaining them.
The agitating women are now waiting for Chief Minister Devendra Fadnavis's decision on whether the ban should be lifted.
Delhi HC dismisses plea seeking independent probe into alleged DDCA irregularities
The Delhi high court on Tuesday dismissed a plea by former cricketers Kirti Azad, Bishan Singh Bedi and others, seeking a probe by the Special Investigation Team (SIT) into the alleged irregularities in the Delhi and District Cricket Association (DDCA).
“The plea is premature as the CBI (Central Bureau of Investigation) is already conducting a preliminary inquiry in this matter,” said justice Manmohan, while dismissing the plea.
The court also noted that a probe by SIT could only be directed in the rarest of rare case and this would not qualify as being so for such probe to be ordered.
The plea brought by the former cricketers sought appointment of an independent administrator to look into the alleged financial irregularities in DDCA.
The petition also challenged the allotment of land by the centre to DDCA at concessional rates.
This was opposed by additional solicitor general (ASG) Sanjay Jain, who told the court on behalf of the centre that the scheme of allotment could not be challenged as land on concessional rates had been alloted to other sport bodies also.
ASG Neeraj Kishan Kaul, appearing for CBI, assured the court that the bureau was seized of the matter and such task should be best left to them (an independent body) to bring the matter to its conclusion.
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