NEW INDIA ASSURANCE COMPANY LTD. vs SAKAR IRON INDUSTRIES

THIS first appeal is directed against the order dated 29th October, 1993 passed by the Gujarat State Consumer Disputes Redressal Commission at Ahmedabad directing the opposite party, appellant herein, to pay a sum of Rs. 2,29,991 with 12% interest from 1.9.91 till realisation within one month from the date of receipt of the above order besides payment of Rs. 3,000/- as costs.

THE facts lie in a narrow compass and may be noticed. The complainant had taken a burglary and house-breaking insurance policy from the New India Assurance Company Ltd., appellant herein, for a period 18.12.90 to 17.12.91 in respect of its factory premises. The theft had taken place in the factory premises on 4.5.91 and according to the complainant auto sleeves worth Rs. 2,80,000/- were stolen. A complaint was lodged on 5.5.91 with Naroda Police Station and an intimation of the loss was sent to the Insurance Company on 6.5.91. The Insurance Company appointed Mr. Bharat J. Mehta for conducting survey and to assess the loss. The Surveyor submitted a report on 12.8.91 to the Insurance Company. On a perusal of the report of the Surveyor as well as documents called from the complainants the Insurance Company formed the opinion that there was no breaking of house or locks or any door for entering into the premises and for the exist from the said premises. The Insurance Company repudiated the claim vide its letter dated 12.10.92. The main reason given in the letter of repudiation is that as per the scope of cover of burglary and house-breaking (business premises) policy, the claim is payable only when insured property is lost or destroyed or damaged by theft following upon the actual violent entry into the premises by the persons committing such theft, and in this case there was not an actual forcible and violent entry into the business premises by the persons committing such theft as per the report of the Surveyor Mr. B.J. Mehta. The complainant alleging deficiency in service of the Insurance Company in settling its just claim preferred complaint before the State Commission claiming a sum of Rs. 6,61,376.80. The State Commission formulated the only point arising in this case as to whether the property was lost by theft following upon an actual forcible and violent entry in the premises by person/ persons committing theft. After considering the terms of the policy, the report of the Surveyor and the dictionary meaning of ''violent'' rejected the contentions of the Insurance Company and held that the claim was wrongly repudiated by the appellant. The State Commission also noticed that the Surveyor assessed the damage at Rs. 2,29,991/- and awarded the same amount with interest.

WE have heard Mr. S.M. Suri, the Counsel for the appellant and Mr. M. A. Bhatt, Counsel for the respondent and have also gone through the records of the case. The relevant portion of the policy reads as under: "If the property described in the Schedule 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 person committing such theft."

THE contention of Mr. S.M. Suri, is that an entry obtained by turning the handle of an outside door or by using a Skelton key though sufficient to constitute a criminal offence, is not within the policy since the element of violence is absent. The policy has been framed as to apply only to violent entry from outside and thus the violence must be connected with the act of entry. The case would be covered under the terms of policy if the entry was obtained by the use of both force and violence otherwise it is not covered. The act that causes the loss has to fall within the definition of policy and in this case according to the report of the Surveyor there was no forcible and violent entry. The Surveyor reported "it was observed that the culprit may have first entered into insured "s'' casting department through the open gap of its gate placed in margin on backside and through the open door placed in between casting and maching department entered into machining department and after stealing the stock of sleeves may have existed through the side door of machining department such huge stock must have been carried in some big vehicle." The Surveyor opined, urges the Counsel, that there was no breaking out of any locks and/ or any door either for entering into premises or for existing from the premises as all the locks were found intact. The State Commission in the order under appeal held that even if the report of the Surveyor is accepted it is clear that the entry was forcible and violent as the burglar had entered forcibly from the gap above the gate which was locked. This Commission is also of the same view. The Surveyor admits that there was an existing gap above the external gate of casting department. The roof top was at substantial height so it would have been difficult to get down through it and the entry must have been into the casting department through the existing gap above the gate. The dictionary meaning of Violent'' is characterised by very forcible, vehement, rapid, often sudden movement, requiring exhibiting, a powerful voluntary exertion of muscular strength, violent efforts. Violence may not include a theft where the thief only had to turn the door handle and walk in and that would not be ''violent'' entry in the premises but in this case the report of the Surveyor appointed by the Insurance Company is that it is believed that the culprit may have entered into the casting department of factory through the existing open gap lying above its locked gate. It is an unlawful and unnatural exercise of force to gain entry to the premises through the gap lying above the gate. Violent means was used in this case acting with great physical force to gain entry to the insured premises of the complainant. The appeal is accordingly dismissed leaving the parties to bear their own costs.