1. The order dated 28.10.2014 passed by the Consumer Disputes Redressal Forum VI, (District New Delhi) in CC-1669/09 in the matter of Mrs. Veena Jain versus M/s National Insurance Co. Ltd., holding the insurer guilty of deficiency and directing them to pay Rs. 4,07,160/- as loss recorded by Surveyor with interest of 10% p.a. from the date of repudiation till the realisation of the payment and compensation of Rs. One Lakh for deficiency, harassment and litigation expenses, has been assailed before this Commission by way of an appeal under Section 15 of the Consumer Protection Act 1986 by the M/s National Insurance Co. Ltd., for short appellant against Mrs. Veena Jain, resident of Delhi, hereinafter referred to as respondent on the ground that the view taken by the District Forum is contrary to the decision of the Hon’ble Apex Court and Hon’ble NCDRC. Prayer has been made for setting aside the order impugned here.
2. Facts of the case necessary for the adjudication of the appeal are these.
3. The respondent had taken a Burglary Policy in respect of the stock in trade for a sum of Rs. 5,00,000/-. On 19.01.2008 the insured claimed that the premises was burglared which resulted in a loss of Rs. 5,04,302/-. The matter was also reported to the police to register the FIR under Section 380 IPC. The company on being intimated appointed M.P. Bakshi Surveyors Pvt. Ltd. who submitted their report on 16.05.2008 and 01.08.2008 wherein the loss was assessed at Rs. 4,07,160/-. However the insurer repudiated the claim observing that there was no forcible or violent entry or exit from the insured premises and thus the loss was not on account of burglary, rather it was a case of theft. What was covered under the policy was burglary and not theft.
4. The repudiation done by the appellant/OPs was assailed before the District Forum by way of complaint before the District Forum which complaint having been allowed with direction to the insurer this appeal has been filed on the grounds indicated hereinafter.
5. The appellant has in the first instance stated that the policy obtained by the respondents posits as under:-
“Burglary and/or housebreaking shall mean theft involving entry to or exit from the premises stated therein by forcible and violent means or following assault or violence or threat thereof to the insured or to his employees or to the members of his family.”
6. The main ground of the appeal is that the view taken by the District Forum is contrary to the decision of the Hon’ble Apex Court in the matter of United India Insurance Company Ltd. versus Harchand Rai Chandan Lal as reported in (2004) 8 SCC 644, holding as under:-
The question before us is whether in terms of the policy, the repudiation of the claim of the respondent by the appellant company is justified or not. We have already reproduced the terms of the policy as also the definition of Burglary and/or housebreaking as defined in the policy. The definition given in the policy is binding on both the parties. The policy is a contract between the parties and both parties are bound by the terms of contract. As per the definition of the word burglary, followed with violence, makes it clear that if theft is committed it should necessarily be preceded with violence i.e. entry into the premises for committing theft should involve force or violence or threat to insurer or to his employees or to the members of his family. Therefore, the element of force and violence is a condition precedent for burglary and housebreaking. The term Burglary as defined in the English Dictionary means an illegal entry into the building with an intent to commit crime such as theft. But in the absence of violence or force the insurer cannot claim indemnification against the insurance company. The term of the policy have to us construed as it is and we cannot add or subtract something. However, liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended. It is true that in common parlance the term burglary would mean theft but it has to be preceded with force or violence. If the element of force or violence is not present then the insured cannot claim compensation against theft from the insurance company.
From the above discussion, we are of the opinion that theft should have been preceded with force or violence as per the terms of the insurance policy. In order to substantiate a claim an insurer has to establish that theft or burglary took place preceding with force or violence and if it is not, then the insurance company will be well within their right to repudiate the claim of the insurer.
7. Secondly, the Hon’ble Apex Court in the matter of General Assurance Society Limited versus Chandumall Jain and Anr. as reported in (1966) 3 SCR 500 observed that “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”. The Hon’ble National Commission, while disposing of the RP/211/2009 in Reliance Life Insurance Company Ltd versus Madhavachargya, in their order dated 02.02.2020 relied on the same judgement. Hence the policy document, being the evidence of contract, the insurance contract should be interpreted as per the terms and conditions of the policy document.
8. Respondent were noticed but they have stated as recorded in the proceedings on 07.11.2016, that they do not wish to file the reply to the appeal.
9. This matter was listed before this Commission for final hearing on 10.02.2020 when the counsel for both sides appeared and advanced their argument, the appellant relying on the judgements of the Hon’ble Apex Court and the Hon’ble NCDRC referred to above for setting aside the impugned order since the repudiation done by them was within the four corners of the policy and insurance being a contract like any other contract, the terms thereof are binding on both of them and the respondents on the other hand for upholding of the orders passed by the District Forum on the ground that their claim is within the parameters of the policy but the appellant have not sized up the terms of the policy in the right and objective perspective. I have perused the records of the case and given a careful consideration to the subject matter.
10. The ld. Counsel for the respondent has stressed the point that for establishing burglary use of force can be in different contexts. It is not necessary that in the process of the act injury should be inflicted. It only indicates relying on the judgement of the State Commission, Mumbai in the matter of M/s Sandip Traders versus United India Insurance Company in CC-15/271 decided on 04.02.2009 forced unauthorised and restrained entry.
11. It is undisputed fact that the FIR in the given case was registered by the police under Section 380, 457 and 411 and not a simpliciter theft. Whenever any criminal offence takes places and a report is lodged with the policy the statutory authority to investigate into the offence of theft and other aspects as prescribed by Code by Criminal Procedure is police and no other authority including the investigator to be appointed by the insurance company. The police is the solitary authority to investigate into the offence and submit the report and the Insurance Company has no escape from acting upon the report of the police as the insurance company cannot run parallel investigator. It is the police authorities who have to register the FIR and all other action are to be followed accordingly. On the other hand there exists nothing on record to show that the insurance company have also not assailed the registration of the FIR under Section 380/457/411 of the IPC before the authority concurred and if that be the case, the appellant agree that the offence was committed under Section 457/380. Moreover whenever any entry is made in any locked premises it has to be presumed that the entry was unauthorised and forced entry.
12. At this stage it would be useful to peruse the conclusion drawn by this Commission in the matter of Praveen Kumar Gupta versus Oriental Insurance Co. Ltd. in CC-35/2003 decided on 09.04.2019, stating as under:-
There is distinction between the ingredients of burglary and theft. Section 379 prescribed following ingredients of theft:-
a. Dishonest intention to take property.
b. The property must be movable.
c. It should be taken out of the possession of another person.
d.I t should be taken without the consent of that person.
e. There must be some removal of the property in order to accomplish the taking of it.
In our view the fact and manner in which occurrence took place are tested on the aforesaid ingredients it clearly false within the offence of burglary. Thus the claim of the complainant was wrongly rejected on the ground that it was not a case of burglary and therefore was not covered under the policy.
13. The Hon’ble NCDRC in the matter of Paresh Mohanlal Parmar versus The New India Assurance Co. Ltd in FA-45/2007 decided on 19.07.2011 is pleased to hold and observe in para 13 as under:-
We have carefully gone through the judgement of the Apex Court, which is relied upon by the State Commission in support of its decision. We are of the opinion that the fact situation in the present case stands on different footing from the fact situation which was noticed in case of United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal (supra). In that case, FIR was lodged at the Police station only under section 380 of the I.P. Code. The Apex Court, no doubt, held that if the element of force or violence is not present then the insurer cannot make claim against theft only from the Insurance Company. In the present case, when the lock of the godown was found on the street and that the culprit was convicted by Criminal Court under section 454 of the I.P. Code it may be gathered that element of force was present when the culprit entered the premises of the godown. It is not necessary that the force shall be used against the complainant or his employee prior to commission of the theft. It would be sufficient if force is used prior to entering the premises in question for the purpose of making entry therein.
14. In Mono Industries Vs. New India Assurance Co. Ltd. [II (2008) CPJ 125 (NC)], it has been held that entry in the premises, if is found to have been effected by exercise of force, however, slight, it may be, would be sufficient to constitute forcible entry within the meaning of burglary policy. In that cas
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e, the culprit had entered the premises by removing roof-sheet and had exit by breaking lock. This Commission, therefore, held that forceful entry and exit have been proved. So, if an unauthorised entry is made even with a slight force, it will amount to an act of burglary, and will come within the ambit of such policy. 15. Having regard to the discussion done and the legal submissions made read with the fact that the FIR was registered by the Police Authorities under Section 380/457/411 the inescapable and inevitable conclusion is that there was use of the force within the meaning of burglary as contemplated in the policy and if that be the case there appears to be no infirmity in the orders passed by the District Forum assailed here in this appeal. Accordingly the orders passed by the District Forum are upheld and the appeal filed by the insurer being devoid of merit is rejected, leaving the parties to bear the cost. 16. Ordered accordingly. 17. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information. 18. File be consigned to records.