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2009(4) CPR 89 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
NEW DELHI
Ashok Bhan, President and B.K. Taimni, Member
Mastana Jogi International
Pvt. Ltd. —Petitioner
versus
New India Assurance Co. Ltd. —Respondent
Revision Petition No. 2124 of 2005
Decided on 18.8.2009
For the Petitioner:Mastana Jogi, Advocate Ms. Shanta D. Raman, Chandra Prakash Advocates.
For the Respondent: Nemo.
IMPORTANT POINT
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.
Headnote:Consumer Protection Act, 1986—Section 21(b)—Burglary Insurance Policy—Burglary took place in factory of complainant causing huge loss to him—Repudiation of claim by Insurance Company—Complaint—Allowed by District Forum—Appeal—Partly allowed by State Commission—Revision petitions there against—Insurance policy issued by petitioner specifically provided 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 theft from the petitioner—Instantly no evidence led by complainant to show that theft was accompanied by violence and forcible entry in the factory—Element of force and violence being missing, claim in question did not fall within the preview of policy—Orders passed by Foras below set aside—Complaint dismissed. (Paras 11 to 15)
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 of 2005 filed.
2. 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.
3. 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.
4. 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.
5. Insurance company has prayed for setting aside of order passed by the Foras below, whereas the complainant has filed the revision petition seeking restoration of order passed by the District Forum.
6. The question which arises for consideration is as to whether it was case of burglary or theft.
7. 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 goods 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.”
8. 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.
9. District Forum without discussing the point raised by the petitioner as to whether the claim made by
