Justice M.R. Agnihotri, President-INSURANCE CO. LTD. vs Superintending Engineer, Tamil Nadu Electricity Board

THE opposite party. Divisional Manager, Oriental Insurance Company Limited, against whom an award has been passed by the District Forum, is the appellant. On 16.3.1994 at 9.45 a.m., the Assistant Engineer, Tamil Nadu Electricity Board (TNEB), Raj Bhavan, I.I.T. Campus, Madras-36, noticed that a burglary had been committed in the premises of the office of the TNEB. A police complaint was lodged in Kotturpuram Police Station. Subsequently, the Station Officer, who investigated the case, referred the case as undetectable. THE total amount stolen was Rs. 2,41,431/- among other records kept in the locker. THE TNEB had taken a policy against burglary and house-breaking with the opposite party Oriental Insurance Company Limited. THE complainant made a claim for the said amount with the opposite party, but the opposite party by an order dated 2.12.1994 repudiated the claim stating that the claim was outside the scope of the burglary covered under the policy. According to the complainant, the said repudiation was unreasonable and without any basis and this amounted to deficiency in service on the part of the opposite party. Thus alleging the complaint has been filed.

THE opposite party contended that soon after the incident was reported to them, the matter was investigated by one Mr. Meenakshisundaram, a retired Additional Superintendent of Police who had reported that there was no burglary as alleged since there was no evidence of forcible entry and that the theft should have been committed by any of the employees of the complainant. Subsequently another Surveyor was appointed by the opposite party and he also confirmed the earlier report. On the basis of these reports the opposite party repudiated the claim saying that the claim was not covered by the policy. Thus there was no deficiency in service or. their part and therefore the complaint was liable to be dismissed. The District Forum, on consideration of the pleadings and the evidence, accepted the case of the complainant and held that it was a case of burglary and therefore the repudiation was unreasonable and the opposite party had committed deficiency in service. The District Forum therefore passed an award directing the opposite party to pay a sum of Rs. 2,41,431/- being the amount stolen, and also interest @ 18% p.a. from 28.3.1994 till realisation. It further ordered a sum of Rs. 1,000/- as costs.

Now in the appeal, the learned Counsel appearing for''the appellant/opposite party contents that the order of the District Forum is against law and facts of the case and it is liable to be set aside. On a careful consideration of the matter, it appears to us that there is much force in this submission. It is not in dispute that there was an occurrence of theft of a sum of Rs. 2,41,431/-. But the question is whether there was burglary or house-breaking only in which case the opposite party will be liable under the policy as stated in Clause (a) under the heading "Operative Clause". Now, soon after the crime, the opposite party had appointed a retired Additional Superintendent of Police for investigating the matter and he had submitted his report Ex. B-l dated 17.10.1994 stating that there was no burglary and there was only a house theft. Thereafter another Surveyor was also appointed and he too gave a similar report on 10.1.1995. Of course the repudiation by the opposite party was on 2.12.1994 i.e., before the report of the Surveyor. But it was only after the report of the investigation of the retired Additional Superintendent of Police. On a perusal of the FIR (Ex. A-3) it is seen that it is merely stated that the locker of the iron safe was found open. It is not stated that the lock or anything else was broken. Of course in Ex. A-2 final report of the Inspector of Police it is stated that there was a possibility of outside criminals entering into the premises and committing burglary through the backside of the compound. Now, Clause (a) of the "Operative Clause" in the policy is as follows: "(a) Any loss or damage to property or any part thereof whilst contained in the premises described in the Schedule hereto due to burglary or house-breaking (theft following upon an actual forcible and violent entry of and/or exit from the premises) and hold-up. (b) ......................"

So, in the said clause itself what is burglary or house-breaking has been denned as theft following upon an actual forcible and violent entry of and or exit from the premises. Now there is absolutely no evidence whatsoever in this case to show that there was any actual forcible and violent entry. Hence it cannot at all be said that burglary or house-breaking had occurred. That being the case, it cannot be said that the repudiation of the claim by the opposite party is unreasonable. In this view of the matter, we hold that this is a matter for the complainant to agitate in a Civil Court and not in the Consumer Forum.

THUS holding, we allow the appeal, set aside the order of the District Forum and dismiss the complaint. However, there will be no order as to costs. Appeal allowed.