UNITED INDIA INSURANCE CO. LTD. vs BALBIR SINGH & ANR.

This first appeal has been filed under Section 19 read with Section 21(a)(ii) of the Consumer Protection Act, 1986 by the opposite party (OP), United India Insurance Co. Ltd. against the impugned order dated 24.12.2014, passed by the Delhi State Consumer Disputes Redressal Commission, (hereinafter referred to as "the State Commission") in Consumer Complaint No. 298/1998, filed by the present respondent no. 1, Balbir Singh, vide which, the complainant was held entitled to the claim for the alleged burglary at his premises alongwith interest.

The facts of the case in brief are that the complainant/respondent no. 1, Balbir Singh is the sole proprietor of M/s. Electro Metal Industries engaged in the business of manufacturing solder wires, solder sticks and liquid flux under the brand name of ''Guru''. The complainant obtained a fire policy as well as miscellaneous theft insurance policy for a sum of Rs. 7 lakhs, covering the burglary and theft for the period 16.11.1996 to 15.11.1997. It has been stated in the complaint that on 18.06.1997, 11 sillies of tin were found missing from the factory. On the next date i.e. 19.06.1997, when the factory was opened for day''s work, 22 more sillies of tin were found missing. On 20.06.1997 again, when the factory was reopened for day''s work, another 22 sillies of tin were found stolen. Hence, there was theft of 55 sillies of tin on 3 consecutive dates. It was found that the culprits had broken open the roof sheet from the top, entered the premises and had stolen the said sillies. A complaint was lodged with the local police and an intimation was also given to the Insurance Company, which appointed M/s. Select Surveyors to assess and investigate the loss. The said surveyor submitted its report on 23.07.1997, saying that there was no justification for giving the claim, as it was not possible to lift a 30kg silly to the height of 20ft at the roof top. Thereafter, another surveyor was appointed, but he also did not recommend the claim, although his findings were at a little variance with the report of the previous surveyor. The Insurance Company repudiated the claim, saying that the complainant had not taken timely action to safeguard the property in question in time. The consumer complaint in question was then filed, seeking directions to the Insurance Company to pay the claim, amounting to Rs. 5,28,000/- towards loss of raw material as well as damages of Rs. 50,000/- for mental tension etc. alongwith interest. The complaint was allowed by the State Commission, vide orders dated 11.09.2007, and the relief asked for in the complaint was allowed, besides Rs. 10,000/- as cost of litigation. Being aggrieved against the said order, the Insurance Company/petitioner as well as the complainant filed appeals before this Commission. The said appeals were decided by this Commission vide orders dated 20.03.2013. The order of the State Commission was set aside and the matter was remitted back to them to decide the matter afresh, by giving a firm finding whether ''burglary'' as defined in the Policy and as interpreted by the Hon''ble Supreme Court in their order in United

India Insurance Co. Ltd. vs. Harchand Rai Chandan Lal, (2004) 8 SCC 644, had taken place. In pursuance of these directions, the State Commission decided the matter vide impugned order dated 24.12.2014 and stated that it was a clear case of burglary, as per the terms and conditions of the insurance policy and hence, the relief given to the complainant, vide order dated 11.09.2007 of the State Commission, was to be allowed alongwith interest @ 9% per annum from the date of repudiation of the claim. It is against this order that the present appeal has been filed by the OP/Insurance Company.

The learned counsel for the appellant/Insurance Company has drawn attention to the copy of the FIR lodged with the police after the said incident. It has been stated in report to the police that on checking, the complainant found 55 sillies of tin short from their stock and some unknown persons had stolen the material from their factory. The learned counsel has also drawn attention to the report made by the first surveyor, M/s. Select Surveyor that as per the information gathered by them, the theft had taken place on three consecutive dates and that the complainant had informed the police about the theft everyday. In reality however, there had been only one report to the police about the theft. Another surveyor, J. K. Sharma also agreed with the report of the first surveyor. The learned counsel for the complainant further stated that there was evidence of forcible entry into the premises. It had been stated in the report of the surveyor and the photographs taken by them that it was possible to take out the material by cutting the sheets at the roof top. The learned counsel has drawn attention to an order passed by this Commission in Mono Industries vs. New India Assurance Co. Ltd., II (2008) CPJ 125 NC , in which it was stated that the theft committed by removal of roof sheet amounted to burglary.

I have examined the material on record and given a thoughtful consideration to the arguments advanced before me.

As per the version given by the complainant himself, the alleged theft took place on three consecutive dates i.e. 18.06.1997, 19.06.1997 and 20.06.1997. However, only one FIR has been lodged with the police, which says that 55 sillies of tin were stolen. It is not understood as to why the complainant did not lodge report with the police immediately after the first incident of alleged theft/burglary. Further, this Commission observed in their order of remand dated 20.03.2013 that the State Commission should give a firm finding, whether a burglary as defined in the policy and as interpreted by the Hon''ble Supreme Court in United India Insurance Co. Ltd. vs. Harchand Rai Chandan Lal (supra ) had taken place. This Commission also observed that the State Commission should not take decisions based on the dictionary meaning of the word ''burglary'', as per which any illegal entry amounts to forcible entry into the premises. In the impugned order before me, the State Commission have taken the line of argument that breaking open the roof by removing the roof sheet amounted to forcible entry and hence, the case is covered under the definition of burglary. A perusal of the order passed by the Hon''ble Supreme Court in United India Insurance Co. Ltd. vs. Harchand Rai Chandan Lal (supra) would reveal that as per the definition of burglary, any theft committed should be preceded with violence or threat to the insured. In the absence of violence or force, the insured could not claim indemnification from the Insurance Company. The facts and circumstances on record in the present case do not show anywhere whether there was any violence or forcible entry into the premises. It has been mentioned in the report of Select surveyors that although the complainant noticed theft of 11

ingots on 18.06.1997 and 22 ingots on 19.06.1997, they did not notice anything unusual. They decided to replace the locks and put seal on them. However, on 20.06.1997, they noticed the roof of the sheet to be partly broken, but the replaced locks were found to be intact. It is clear from these facts that there is no evidence of any violence or forcible entry in the present case, which may justify the claim of the complainant that the theft was covered under the definition of burglary. It is clear, therefore, that the view taken by the State Commission in the impugned order under appeal is erroneous, and there is no justification for allowing the claim to the complainant. The version just given by the complainant that they found the material short on three consecutive dates, does not lead to the conclusion that burglary took place on the premises of the complainant. In the light of these facts, this First Appeal is accepted and the impugned order passed by the State Commission is set aside. The consumer complaint is dismissed, being devoid of any merit. The parties shall bear their own costs.