Modern New Kapoor Jewellers vs New India Assurance Co. Ltd.
2006 Latest Caselaw 772 Del

JUDGMENT

Swatanter Kumar, J.

1. This Regular First Appeal is directed against the judgment and decree of the trial court dated 21st December, 2005 vide which the court dismissed the suit of the plaintiff for recovery of money.

2. The plaintiff filed a suit for recovery of Rs. 3,97,790/- against the defendant, the insurance company on the ground that the plaintiff company was dealing in the business of gold and jewellery and often had to carry the heavy cash in order to protect their interest. It subscribed to a money insurance policy of the defendant to secure and safeguard the transfer of money. The policy was in vogue from 25th March, 2003 to 24th March, 2004 covering an amount of Rs. 10 lacs at any given point of time. The plaintiff had paid the premium in lieu of the said policy. On 14.11.2003, one of the employees of the plaintiff company was on his way to deposit a sum of Rs. 4 lacs at the plaintiff's bank at Chander Nagar on a two wheeler carrying Rs. 25,000/- in his own pocket and Rs. 3,75,000/- in the dickey of the scooter. On the way, he stopped to deposit the TDS at another bank and while he was inside the said bank, theft of Rs. 3,75,000/- from the dickey of the scooter took place. On the basis of which, the claim was lodged with the insurance company which rejected the claim of the plaintiff. Even a surveyor was appointed by the defendant who conducted his proceedings but no amount was paid to the plaintiff who then served a legal notice dated 21.4.2004 and where after filed the present suit.

3. According to the defendant, the claim of the plaintiff was malafide and was not in consonance with the terms of the policy. It is admitted that the surveyors were appointed and based upon their reports, documents and terms of policy, the claim of the plaintiff was repudiated being in contravention to the terms and conditions governing the relationship between the parties. It is stated that there was an exclusion clause being clause No. 6 and11 together with general conditions No. 3 to assert that the claim was liable to be rejected.

4. The trial court after framing issues and permitting the parties to lead evidence dismissed the suit of the plaintiff. The trial court decided the issue that the money in question was money in hand as stipulated under the terms of the policy, However holding that the plaintiff was under obligation to take due care and was also to behave like a common prudent person which it breached, the trial court dismissed the suit of the plaintiff. The other plea of the plaintiff that they were not aware of the terms and conditions of the policy was answered as follows:-

15...Thus, the latter judgment has no bearing on the facts of this case. As regards former, there is and can't be two opinion that the possession does not mean that the person possessing a thing should physically possess. Thus, the money lying in car, under took and key, is money in hand and so is the case here. However, this does not absolve the plaintiff from being careful.

16.The circumstances reflect that the plaintiff has deliberately pleaded that the terms and conditions were not in the knowledge of the plaintiff whereas the record indicates that not only it was in the knowledge of the plaintiff but the plaintiff had lodged a claim sometime back which was cleared by the defendant under a similar policy. This reflect malafide in the part of the plaintiff. Then again, circumstances under which the money was stolen reflect that the reasonable care was not taken by the plaintiff and the money was left in the dickey of scooter unattended inviting trouble. The photographs placed on record indicate that the scooter from the dickey of which the theft took place, was parked in a very indiscriminate manner almost near the center of the road. It is a common saying that an open purse tempts even a saint. Thus when a large amount of money would be left unattended then it is bound to create problems and for that no-body else but the plaintiff is to be blamed. As such issue No. 2 is decided against the plaintiff and in favor of the defendant.

5. The above findings recorded by the learned trial court are based upon proper appreciation of evidence produced by the parties before the court. It was obligatory upon the part of the plaintiff to show that Clause 6 of the terms and conditions of the policy would admit such a claim despite careless attitude of the employee of the plaintiff. Apparently does not stand to a reason why a person carrying a sum of Rs. 3,75,000/- in a scooter dickey would leave the scooter in a public parking and would not take out the amount to be carried to the other bank where he was allegedly going to deposit the TDS, if it was so important and the TDS could not have been deposited one hour later.

6. The contention of the plaintiff about having no knowledge of the terms and conditions of the policy is again without merit and has rightly been rejected by the trial court. Such claims had been raised by the plaintiff even in the past and they were paid. The evidence referred to in the grounds of appeal i.e. the statement of PW-1 and DW-2 is again of not much help to the parties. The statement of PW-1 that they did not receive the complete terms and conditions of the policy, is a self-serving statement unsupported by any documentary evidence. If complete set was not received, the said witness has not even stated why they did not write to the insurance company for supplying the complete document. DW-2 stated that the Divisional Managers do not send policy documents themselves but are sent by the dispatch department. We are unable to find anything in the statement of DW-2 which would demonstrate before the court that the complete terms and conditions of the policy were not given to the plaintiff. In any case, it was expected of the plaintiff to know the terms and conditions of the policy under which it had been drawing benefits in the past as well as was intending to lodge its claim for the current event. In fact, as it appears from the record that theft and loss of money under these policies was occurring with the plaintiff little too often and the conclusions arrived at by the learned trial court can hardly be faulted with.

7. For the reasons afore-stated, we find no merit in this appeal. The same is dismissed in liming.