- (1.)THROUGH the medium of this appeal, the appellant, New India Assurance Company Limited, Gandhi Nagar, Jammu, has challenged the order dated 31.12.2007 passed by the learned Divisional Forum (shortly Forum hereinafter) in the complaint filed by the respondents (complainant therein) namely, M/s. Lek Raj and Sons and Others, whereby the appellants were ordered to pay the sum of Rs. 3,92,000 along with interest at the rate of 6% p.a. w.e.f. 11.2.2005 till realization of the amount. Litigation charges of Rs. 3,000 were also awarded in favour of the respondents. According to the appellant, the impugned order is bad in law and is against the facts.
(2.)THE facts which gave rise to the filing of the complaint are briefly stated as under: The respondents had obtained open declaration policy bearing No. 2135250100207 from the appellant for covering risk, to the extent of Rs. 1 crore. The policy was valid from 25.4.2002 to 24.4.2003. The relevant terms for the present controversy as are being projected from the first page of the policy were that it would cover the goods despatched from time -to -time from "anywhere in India to anywhere in Jammu and Kashmir State". There was also stipulation in the Insurance Policy that vessel and/or conveyance by road of goods was covered "anywhere to anywhere". In this case, there is no dispute regarding the fact that the consignment of Vanaspati Ghee of 1,000 tins was loaded in Nepal in the truck bearing No. HR -37 -3219. The supplier of the insured goods in favour of Firm respondent No. 1 was M/s. Ganpati Vanaspati Pvt. Ltd., Nepal. The supplier had also obtained separate Insurance Policy from Everest Insurance Company Ltd., Nepal; which is not a party before us. It is alleged that the consignment did not reach the destination point at Jammu. That on 22.2.2002, respondent No. l intimated his broker as well as the supplier M/s. Ganpati Vanaspati Pvt. Ltd., Nepal about the matter. On 12.3.2002, Pushupati Roadways, the owner of the missing truck lodged report of non -traceability of the truck in question in Police Station, Raxaul, Bihar. According to the respondents, the supplier had raised his claim with his insurer in Nepal, but, the same was repudiated on the ground that the loss had occurred in India. Correspondingly, the respondents also raised their claim with the appellant which too was repudiated on the ground that they were not liable to indemnify the loss as the claim had already been repudiated by the "Everest Insurance Company Ltd., Nepal". The other ground for repudiation of the claim was that the loss had occurred outside the territorial jurisdiction as defined in the Insurance Policy because the consignment had not been despatched from within India. The words of the Insurance Policy "anywhere to anywhere" meant that the goods should have been despatched from "anywhere in India to a place anywhere in J&K State". The learned Forum examined the matter and allowed the complaint as indicated above. Heard the arguments.
(3.)MR . Jugal Kishore, Advocate has contended that the consignment of the Insured Goods from a foreign country (Nepal) amounts to violation of the main terms and conditions of the contract of Insurance Policy which specifically provides that the despatch of the goods should have been made from, "anywhere in India to anywhere in Jammu and Kashmir State". The alleged loss had occurred to the goods despatched from Nepal and not from the territory of the Union of India to the Jammu and Kashmir State. The law of Insurance settled by the Apex Court is that terms and conditions of the Policy are to be given a plain interpretation and the Court of law cannot add or subtract anything therefrom on its own. The Insurance Policy is a contract of Insurance and both parties are bound by its terms and conditions. While concluding his arguments he stated that concealment for shipment of goods has been made by the respondents in the declaration form and that fact has been incorporated in the letter of declaration. In support of his contentions, the learned Counsel, Mr. Jugal Kishore, has referred to , titled United India Insurance Company Ltd. v. Harchand Rai Chandan Lal, 2004 4 CPJ 15wherein it has been held that no aid outside the terms of contract should be sought unless the meaning is ambiguous. In rebuttal, the learned Counsel appearing for the O.Ps. has pleaded that the Policy is to be read as a whole and not by adopting the method of pick and choose. That the words of the Insurance Policy "anywhere in India to anywhere in the Jammu and Kashmir State" should be read with the words of the clause incorporated on that very page that "conveyance" should have taken place "by road, anywhere to anywhere." According to him anywhere to anywhere has an all pervading effect whereas, the 2nd clause which is being referred to by the Counsel of the appellant pertains only to the subject matter which was insured. According to the learned Counsel for the respondents, it is the final expression of the intention of the parties which would matter not the subsequent printed words added to the Insurance Policy. To fortify this contention, he has placed reliance on , titled The General Assurance Society Ltd., Calcutta v. M.S. Sivasami and Anr., 1974 AIR(Mad) 257 In this case certain terms were added to the Marine Insurance Policy which were in conflict with the printed words of the said policy. The Hon ble Madras High Court held that the added words would be treated as overriding and the printed words are deemed to be final expression of the intention of the parties. In the case at hand, the learned Counsel for the respondents has stated that the intention of the parties was to cover a risk right from place of origin of the consignment which was Nepal up to anywhere in Jammu and Kashmir State. So the Insurance Policy in question would mean to take care of the loss which has taken place from the point of take off to the place anywhere in Jammu and Kashmir State. Next argument has been that words "anywhere to anywhere" preceding the Para where words anywhere in India to anywhere in Jammu and Kashmir State are written. They disclose the intention of the parties to the contract of Insurance. To strengthen this argument, the learned Counsel for the respondents has referred to a Judgment of the Hon ble Supreme Court passed in Case No. 5063 of 1988, titled Life Insurance Corporation of India v. Dharamviranand, wherein it has been held that "In construing a particular clause of the contract, it is only reasonable to construe that the words and the terms used therein must be given effect to. In other words, one part of the contract cannot be made otiose by giving a meaning to the policy of the contract". The other contention of the learned Counsel for the respondents was that if there is any ambiguity or a term is capable of two possible interpretations one beneficial to the insured should be accepted consistent with the purpose for which the Insurance Policy was taken. To support these arguments, the learned Counsel has placed reliance on , titled United India Insurance Company Ltd. v. Pushpalaya Printers, 2004 1 CPJ 22wherein it has been held that "It is also settled position in law that if there is any ambiguity or a term is capable of two possible interpretations one beneficial to the insured should be accepted consistent with the purpose for which the policy is taken, namely, to cover the risk on the happening of certain event". The learned Counsel for the respondents has referred to certain admitted facts in the case i.e.the goods were insured. The truck carrying them has gone missing after it entered Indian Territory. A missing report stands registered in Police Station, Raxual, Bihar. These facts indicate that the truck carrying the insured goods went missing within the territory of India. Under these circumstances also, the appellants were responsible to indemnify the loss suffered by the respondents.
After considering the respective contentions of the Counsel for the parties and going through the principles laid down by the Apex Court as delineated , we have no hesitation in confirming the impugned order passed by the learned Forum which in no manner suffers from any illegality or infirmity. The appellant has filed a meritless appeal and the same is dismissed with cost of Rs. 6,000. The appeal is consigned to records and the record of the Forum be returned at once.