Mastana Jogi International Pvt. Ltd. vs NEW INDIA ASSURANCE CO. LTD.

MR . Justice Ashok Bhan, President -This order shall dispose of Revision Petition No. 2124/2005 filed by the complainant and Revision Petition No. 2303/2005 filed by New India Assurance Co. Ltd. as both of them arise from the same order passed by the Delhi State Commission. The facts are being taken from Revision Petition No. 2303/2005 filed.

BRIEFLY stated, the facts are that the complainant/respondent through bank obtained an insurance policy No. 46 -3874, 46 -3216, 46 -3622 and 46 -3170. On 30.11.1994, a burglary took place in the factory causing huge loss to the complainant. Complainant lodged an FIR. On Untraced'' report given by the police authorities, complainant lodged a claim with the petitioner Insurance Company which was repudiated. Consequently, complainant filed a complaint before the District Forum claiming a sum of Rs. 4,45,963.65 paise towards the loss and Rs. 50,000 by way of compensation.

DISTRICT Forum after going through the pleadings and evidence led by the parties, allowed the complaint and directed the petitioner to pay a sum of Rs. 4,45,963.65 paise with interest @ 12% p.a. from 31.7.1995 till realization being the cost of the goods said to have been stolen, Rs. 5,000 as compensation and Rs. 1,000 as litigation costs. Aggrieved against the order passed by the District Forum, Insurance Company filed an appeal before the State Commission which has been partly allowed. Order of the District Forum was modified to the effect that instead of interest @ 12%, compensation of Rs. 20,000 be paid to the complainant for mental agony and harassment. Rest of the order was maintained. Being aggrieved, both the parties have filed the present revision petitions.

INSURANCE Company has prayed for setting aside of order passed by the Fora below, whereas the complainant has filed the revision petition seeking restoration of order passed by the District Forum.

THE question which arises for consideration is as to whether it was case of burglary or theft.

PETITIONER had issued burglary insurance policy in favour of the respondent. In the said policy, it was specifically stated that the petitioner shall indemnify the respondent in case the property is lost by theft following upon an actual forcible and violent entry of the premises by the person committing such theft. The relevant part of the policy is reproduced as under: "(a) If the property described in the Scheduled hereto or any part thereof shall be lost, destroyed or damages by Theft, following upon an actual forcible and violent entry of the Premises by the person or persons committing such theft; or

(b) if any damage falling to be borne by the Insured shall be done to the Premises described in the Schedule hereto following upon or occasioned by any actual forcible and violent entry of the Premises or any attempt threat by the person or persons committing or attempting to commit such theft.

Then the Company will pay or make good to the Insured such loss to the extent of the intrinsic value of the property so lost or such damage to the property so sustained. Provided that, the liability of the Company shall in no case exceed in respect of each item the sum expressed in the Schedule hereto to be insured thereon or in the whole the total sum insured hereby."

ON being informed by the respondent about the theft, petitioner appointed a Surveyor who in his report dated 30.3.1995 observed that there was no forcible and violent entry into the premises and, therefore, the loss is not covered under the policy. Petitioner, after examining the report and the policy, repudiated the claim. Against the repudiation, the respondent filed a complaint before the District Forum which was contested by the petitioner, inter alia, on the ground that the claim is barred by limitation and beyond the scope of policy as there was no forcible or violent entry into the premises.

DISTRICT Forum without discussing the point raised by the petitioner as to whether the claim made by the respondent was within the scope of policy or not, allowed the complaint and directed the petitioner to pay a sum of Rs. 4,45,963.65 paise along with interest @ 9% w.e.f. 31.7.1995. Costs were assessed at Rs. 6,000. Against the aforesaid order, petitioner filed an appeal which has been disposed of by the State Commission by the impugned order.

PRESENT case is squarely covered by the judgment of Hon''ble Supreme Court in United India Insurance Co. Ltd. v. Harchand Rai Chandan Lal, reported as IV (2004) CPJ 15 (SC)=V (2004) SLT 876=2004 CTJ 1018 (SC) (CP). Hon''ble Supreme Court, after discussing the difference between the Theft'' and Burglary'', held as under: "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 burglar, followed with violence make it clear that if any theft is committed it should necessarily precede with violence i.e. entry into the premises for committing theft should involve force or violence of 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 absence of violence or force the insurer cannot claim indemnification against the Insurance Company. The terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever 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 and violence is not present then the insurer cannot claim compensation against theft from the Insurance Company."

Therefore, it is settled law that the terms of the contract have to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous. 15. From the above discussion, we are of the opinion that theft should have preceded with force or violence as per the terms of 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."

INSURANCE policy issued by the petitioner (relevant part of which has been produced in the earlier part of this order) specifically provides that theft must be accompanied by forcible and violent entry. If the element of force and violence is not present, then the insured cannot claim compensation against the theft from the petitioner. In the present case, the respondent/complainant has not led any evidence to show that the theft was accompanied by violence and forcible entry in the factory. The element of force and violence is missing and, therefore, the claim in question does not fall within the preview of the policy.

FORA below have failed to appreciate that in absence of violent and forcible entry, the petitioner was not liable to pay any compensation to the respondent. The finding recorded by the State Commission in the impugned order is against the principle of law settled by Hon''ble Supreme Court of India in the judgment referred to above in which it has been held that if the element of force and violence is not present, then the insured cannot claim compensation against the theft from the insurer.

THE Surveyor in his report has observed that there was no forcible entry into the premises. Respondent/complainant failed to produce any evidence to rebut or contradict the observations made by the Surveyor in this regard.

FOR the reasons stated above, this revision petition is accepted. Order passed by the Fora below is set aside and the complaint is ordered to be dismissed. Revision Petition No. 2124/2005

In view of our findings recorded in Revision Petition No. 2303/2005 in which we have held that the petitioner is not entitled to any compensation, the prayer made in this revision petition seeking interest on the awarded amount does not arise. Same is dismissed.

Ordered accordingly.