NATIONAL INSURANCE CO LTD vs ANIL GIRULKAR

THIS appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 13. 4. 2006 in complaint No. 144/2005 by District Consumer Disputes Redressal Forum, Raipur (hereinafter called the ''district Forum'' for short) directing the appellant-insurer to pay to the complainant/respondent a sum of Rs. 3,700 with interest @ 9% payable from 2. 4. 2005. Besides, compensation of Rs. 2,000 and cost of the complaint of Rs. 500 was also awarded.

THE relevant facts not in dispute are, that the complainant purchased a Nokia cell phone for Rs. 3,700 on 3. 7. 2004, which was duly insured by the appellant-insurer The complainant''s allegations were that the said Handset was stolen from his shirt pocket at about 8 p. m. on 31. 3. 2005. He lodged police report of the incident on 1. 4. 2005 with Police Station, Purani Basti, Raipur. He also put up a claim with the appellant-insurer on 2. 4. 2005. Relevant documents were also furnished to the appellant-insurer. However, the complainant''s claim was repudiated by the appellant-insurer, by their letter dated 30. 4. 2005. Hence, the complaint.

The complaint was resisted by the appellant-insurer. According to the appellant-insurer, special contingency policy was issued covering the risk, under the terms specified therein. It was averred that the risk of theft as alleged by the complainant was not covered under the policy. Hence, the complainant was not entitled to any relief under the policy.

THE District Forum held that the repudiation of the complainant''s claim, by the appellant-insurer, amounted to deficiency in service and accordingly the claim of the complainant was allowed and compensation etc. was awarded as noticed above. We have heard the learned Counsel for the parties and perused the record.

CONTENTION of the learned Counsel for the appellant basically was that the risk of the theft as alleged to have occurred, was not covered, under the terms of the policy. The learned Counsel in the above context referred to the terms and conditions of the policy. The relevant condition is in Clause 1b (d) of the terms and conditions of the policy, which is as below: "theft of Handset from any public place/public conveyance except where the Handset is taken by actual or threatened force. In all the above instances, a claim shall be entertained only if accompanied by a copy of a registered FIR duly numbered, signed and stamped (First Information Report) to the local Police Station pertaining to such theft of the Handset. "

It was submitted by the learned Counsel for appellant-insurer was that the theft of the said Handset from public place was not covered under the policy, unless it was accompanied by actual or threatened force. It was further submitted that the claim was entertainable only if it was accompanied by a copy of a registered FIR duly numbered, signed and stamped, pertaining to such theft. It was submitted that since it was the case of simple theft without any actual or threatened force; the same was expressly excluded under the above quoted condition of the policy. Learned Counsel for the complainant/respondent, however, supported the impugned order.

WE have considered the submissions as above. It is clear that the policy''s terms 1b (d) clearly exclude theft of the Handset unless it was taken away by use of actual or threatened force. In the instant case, the complainant''s averments in the complaint itself are that somebody picked his pocket and removed the Handset. That being so, it appears that no force-whether actual or threatened was exercised by miscreant. The risk as above, therefore, appears to be excluded, under the policy.

IN the above context the decision of the Supreme Court in United India Insurance Co. Ltd. v. Harchand Rai Chandan Lal, IV (2004) CPJ 15 (SC)=v (2004) SLT 876=2005 (1) CPR 64 (SC), may be referred to in the said case: "it is possible that an insurer may sustain loss in technical terms of the criminal law, but no relief can be given to him unless his case is covered by the terms of the policy. It is not open to interpret the expression appearing in policy in terms of common law; but it has to give meaning to the expression as defined in the policy. The act that causes the loss must fall within the definition in the policy and it cannot take the cover and contents of the definition as laid down in the criminal law. Therefore, when the definition of the word ''burglary'' has been defined in the policy then the cause should fall within that definition. Once a party has agreed to a particular definition, he is bound by it and the definition of criminal law will be of no avail. In this connection, the decision of the National Consumer Disputes Redressal Commission in the case of National Insurance Company Ltd. v. Public Type College which has taken the colour and content of the definition given in the criminal law does not lay down the correct proposition of law. It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of Insurance with their eyes wide open, they cannot rely on definition given in other enactment. Thus, the decision of the National Consumer Disputes Redressal Commission in the case of National Insurance Company Ltd. v. Public Type College is not a good law and all the Tribunals i. e. , National Consumer Disputes Redressal Commission, State Commission and District Forum having applied the ratio of that case; the impugned order cannot be sustained. "

In the light of above decision and the ratio laid down therein, it is clear that the terms of the policy will have to be considered and applied, to decide the claim of the complainant. The terms, as above, clearly and without any ambiguity indicate that simple theft of the Handset from the shirt-pocket of the complainant, was not covered under the terms of the policy. Therefore, the complainant is not entitled to redressal from the appellant-insurer.

Learned Counsel for the respondent on the authority of the Supreme Court in United India Insurance Co. Ltd. v. M/s. Pushpalaya Printers, I (2004) CPJ 22 (SC)=ii (2004) SLT 263=2005 CLCC 17, submitted that the policy was capable of two interpretations and, therefore, the interpretation beneficial to the complainant should be applied. However, we do not find that the terms of Clause 1b (d) quoted above are capable of two different interpretations. Hence, the contention as above of the respondent''s learned Counsel cannot be accepted.

FOR the foregoing reasons, the complainant cannot succeed in his complaint. The order of the District Forum appears to be erroneous. Accordingly, the appeal is allowed. The impugned order is set aside. The complaint stands dismissed. Appeal allowed.