NATIONAL INSURANCE CO.LTD vs M/s Vasundhara Sales Pvt.Ltd

NATIONAL Insurance Co.Ltd. (hereinafter referred to as the ''Petitioner'') has filed the present revision petition against the order of the State Consumer Disputes Redressal Commission, Uttar Pradesh (hereinafter referred to as the ''State Commission'') which decided the appeal in favour of M/s Vasundhara Sales Pvt. Ltd.(through its Director Kaushal Shah), Respondent herein, who was the original complainant before the District Forum.

IN its complaint before the District Forum, Respondent had contended that he is a distributor of ''Timex Watches'' and had been carrying on his business at 188, Jawahar Nagar Extension, Bhelupur, Varanasi. He had got his business premises insured from the Petitioner/INsurance Company for Rs.20 lakhs against burglary and trespassing for the period 07.02.2000 to 06.02.2001 and the prescribed premium amount was also deposited by the Respondent. On 22.06.2000 during the validity of the insurance policy, two unknown persons came to the showroom of the Respondent and asked Respondent''s employees to repair their watch. The employee asked them to wait since it was their lunch time but both persons insisted on its immediate repair. The employee, therefore, went to the reception counter to call the concerned employees from a room at the back of the premises where they were having their lunch. But when he came back about 3 to 4 minutes later, he found that both the unknown persons had left and a carton containing 95 watches was also missing. Respondent, therefore, got an FIR registered on the same day and also informed the Petitioner about the theft of the watches worth Rs.1,51,180/ - and submitted a claim on 05.07.2000 following which Petitioner appointed a Surveyor. According to the Respondent, the Surveyor obtained his signature and seal on a false statement of facts. Petitioner thereafter informed the Respondent that the loss claimed could not be indemnified as it did not fall within the purview of the operative clause of the insurance policy.

AGGRIEVED by this action, Respondent filed a complaint before the District Forum on grounds of deficiency in service and requested that Petitioner be directed to pay him, Rs.1,51,180/ - along with interest @ 18% per annum and Rs.1 lakh as compensation.

ACCORDING to the Petitioner/Insurance Company the claim was rightly repudiated since as per the relevant policy conditions, the claim could only be indemnified against loss by theft where there was entry or exit by forcible and violent means whereas in the present case, there was no forcible or violent entry or exit. This fact was also confirmed by the Police who had registered a case under Section 380 of the IPC as also the report of the Surveyor. Further, as per the Surveyor''s report, the loss claimed by Respondent was not reflected in the Stock Register putting some doubt on the genuineness of Respondent''s claim of theft.

THE District Forum after hearing both parties passed two separate orders. THE order passed by the President of the District Forum dismissed the complaint while the order passed by two Members of the District Forum allowed the same directing the Petitioner to pay a sum of Rs.1,51,180/ - to the Respondent along with interest @ 15% per annum and Rs.5,000/ - towards compensation on account of mental agony. Aggrieved by this, Petitioner/Insurance Company filed an appeal before the State Commission against the majority order which partly allowed the appeal and directed the Petitioner/Insurance Company to pay the Respondent, Rs.1,51,180/ - within two months failing which interest @ 9% shall be payable on the awarded amount. THE operative part of the order the State Commission reads as follows: "It is clear from the perusal of the grounds of appeal that closing stock of the watches has been shown at Rs.32,52,850.00 as on 22.06.2000 and after having sold out 36 watches on the day of theft, stock worth Rs.32,03,050/ - was available. Thus, if they desire, they could have shown less watches in the accounts, but on the above ground, averment of the complainant could not be denied. According to the averments of the complainant, box of stolen watches was lying in the showroom which was stolen by somebody out of the persons present in the showroom. Thus, on the basis of the value of the stock, it could not be concluded surely that the incident of stealing of the watches as stated by the complainant is absolutely false. It is correct that the complainant has not tendered the due evidence in the present case, but Investigating Officer after having collected the evidence of close witnesses on the basis of the First Information Report reached to the conclusion that theft has taken place. In such circumstances, number of the watches which are stated to be stolen by the complainant might be true. It might also be possible that watches less than the watches claimed to be stolen would have been stolen."

HENCE, the present revision petition. Counsel for both parties made oral submissions. Learned Counsel for Petitioner stated that the Fora below erred in dismissing their appeal by not appreciating the fact that the claim was rightly repudiated in terms of the Operative Clause of the Burglary & Housebreaking Policy which reads as follows: "(a) Any loss of 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 exist from the premises)".

IN the instant case as per the Respondent''s own complaint before the District Forum, he had not contended that there was any actual forcible and violent entry with a view to housebreaking and had only stated that two unknown persons entered the premises and surreptitiously took away a carton containing 95 watches. These facts also find mention in the First INformation Report filed before the Police. The Surveyor who had been appointed to investigate this case in his report based on the version given to him by the Respondent''s staff also recorded that there was no forcible entry or force used while committing the alleged act of theft. IN fact, the Surveyor in his report has placed some doubt on the incident having taken at all because the loss claimed is not reflected in the Stock Register. Respondent''s subsequent statement that force was used because his staff was pushed around is clearly an afterthought and not based on facts. Since, the insurance policy is a contractual agreement between the parties and its meaning has to be construed strictly in terms of the conditions of the policy, the claim was rightly repudiated.

COUNSEL for Respondent on the other hand stated that the District Forum in its majority judgment as well as the State Commission had rightly concluded that a theft had taken place in which watches were stolen because of which the Respondent suffered a loss and therefore, directed the Petitioner/Insurance Company to indemnify the claim.

WE have heard learned Counsel for both parties and have gone through the evidence on record. A perusal of the relevant insurance policy clearly defines what amounts to theft in terms of the policy, namely; Burglary or House -breaking upon an actual forcible and violent entry and or exit from the premises. The insurance claim of the Respondent has, therefore, to be examined in terms of the wording of this policy. There is no mention that the theft was committed by actual forcible or violent entry or exit from the premises. The complaint merely stated that two men entered the premises and asked the employee to repair their watch and when the employee went to get another employee for this purpose, the two persons walked away with the carton containing 95 watches. This action did not involve force or violent entry. Admittedly, in his complaint before the District Forum and his report to the Police, Respondent did not mention anywhere that the theft was committed by actual forcible or violent means from his premises. The Surveyor who was asked to investigate the incident also concluded that there was no forcible or violent entry or exit from the premises. In fact, Surveyor questioned the very fact that the theft had taken place. It was later that the Petitioner embellished his contention by stating that two thieves who came from outside abused the employees and pushed one Navin Pratap Singh because of which he fell down and thereafter they ran away by closing the door.

IN fact, Navin Pratap Singh in his statement before the Surveyor only stated that the thieves had used derogatory language and spoke in a loud voice but he did not state that they had used any force or aggression/violence. Neither did he state that he was given a push by the two persons. The report of the Surveyor is an important piece of evidence and cannot be brushed aside without any sufficient reasons unless there are facts to prove otherwise. The State Commission decided the appeal in favour of Respondent only on the grounds that a theft had been committed without appreciating the fact that in terms of the insurance policy the claim could be indemnified only if the theft had occurred through forcible entry and violent means and not otherwise. The State Commission has not recorded any finding that there was forcible entry with violent means while committing the theft. Hon''ble Supreme Court in its judgement in United INdia INsurance Co.Ltd. Vs. Harchand Rai Chandan Lal '' 1(2003) CPJ 393(SC) while dealing with a similar case ruled that the definition of Burglary or Housebreaking as defined in the policy is binding on both parties because it is a contract between the parties. According to the above judgment, as per the definition of Burglary in the policy, if any theft is committed it should necessarily precede with force or violence i.e. 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. Therefore, the element of force or violence is a condition precedent for burglary and housebreaking. The terms of the insurance policy have to be construed as it is, and nothing can be added or subtracted from it. IN the absence of violence or force, because of the above terms and conditions of the policy, the insuree cannot claim indemnification of the claim for theft. Since the present case is squarely covered by the above judgement of the Hon''ble Supreme Court, we are unable to uphold the order of the State Commission and the same is set aside. The revision petition is allowed with no order as to costs.