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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
New India Assurance Co. Ltd. —Appellant
versus
M/s. Sumangal Traders —Respondent
First Appeal No.219 of 2011
(Against the Order dated 07/03/2011 in Complaint No. 4/2008 of the State Commission Rajasthan)
Decided on 28.2.2019
Counsel for the Parties:
For the Appellant:Mr. Abhishek Kumar Gola, Advocate with Mr. Anshul, Advocate
For the Respondent:Mr. Pallav Saxena, Advocate with Respondent in person
IMPORTANT POINT
The terms of the policy cannot be interpreted in terms of common law, but strictly in terms of the Policy.
Headnote:Consumer Protection Act, 1986—Section 21(a)(ii)—Insurance-locks of the basement were not found-reported to the police-theft of stock—Claim repudiated on the ground that loss from godown was not covered under the Policy and no forcible entry, hence, claim excluded—State Commission allowed complaint, hence, appeal.
Held, Theft simplicitor was not covered, but if it was with burglary, then covered-In the present case, no evidence of forcible entry or exit-no evidence of breaking the locks-no broken or damaged locks found at site-hence, the claim is not payable. (Para 6)
Result: Appeal allowed.
V.K. Jain, Presiding Member—The complainant/respondent took an insurance policy from the appellant in respect of the stock kept in its business/shop in Anchal Smiriti Bhawan, Mahamandir, Jodhpur for the period from 22.5.2007 to 21.5.2008. The said shop according to the complainant comprised of three parts, including a basement, and the said three parts were inter-linked. On 15.12.2007, the basement and ground floor were locked at about 9.30 p.m. 16.12.2007 was a holiday, being a Sunday. However, in the morning of 17.12.2007, the locks of the basement were not found at their place. The matter was reported to the police and on checking by the complainant, it was found that the stock worth Rs.30,56,382/- had been stolen. A claim in terms of the insurance policy was lodged with the insurer but was repudiated vide letter dated 8.8.2008, which to the extent it is relevant reads as under:
“The Competent Authority after going through the Survey Report, Investigation Report has repudiated the claim for the following reasons:
1. Loss has taken place from the godown, which was not insured under the policy
2. Policy covers losses arising out of forcible entry or exit from the premises, which was not there.
Accordingly, your claims stands repudiated, which please note.”
2. Being aggrieved from the rejection of the claim, the complainant approached the concerned State Commission by way of a consumer complaint. The State Commission having allowed the complaint and having directed the appellant to pay a sum of Rs.27,46,000/- to the complainant, along with interest @ 9% per annum from the date of repudiation of the claim, the compensation quantified at Rs.25,000/- and the cost of litigation quantified at Rs.10,000/- the insurer is before this Commission by way of this Appeal.
3. The primary issue which is arises for consideration in this case is as to whether the theft/burglary of the stock was covered under the insurance policy taken by the complainant or not. The said policy called ‘Shopkeeper’s Insurance Policy’, to the extent it is relevant, reads as under:
“11. Observation of Terms and Conditions : The due observance and fulfilment of the terms, conditions and endorsements of this Policy is so far as they relate to anything to be done or compiled with by the Insured shall be a condition precedent to any liability of the company to make any payment under this Policy.
Definition: The term of Burglary and/or Housebreaking shall mean theft involving entry into or exit from the Insured premises by forcible and violent means theft or following assault or violence or threat thereof, to the insured or any employee of the insured or member of the Insured’s family.”
Section II Burglary and Housebreaking contents (excluding money and valuables)
The company will indemnity the insured in respect of loss or damage to the contents whilst contained in the Insured premises by burglary and/or housebreaking.”
It would thus be seen that the theft simplicitor of the stock was not one of the perils insured by the appellant. If however, the theft also qualified as a burglary and housebreaking, as defined in the insurance policy, the loss suffered by the insured was reimbursable by the insurer.
It would also be seen that the term “Burglary” and “Housebreaking” are defined in the policy itself, thereby excluding the applicability of any other definition of the said terms. Therefore, unless the burglary and/or housebreaking was committed by entering into or exiting from the insured premises by forcible and violent means or following assault, violence or threat thereof, to the insured or any employee or family members of the insured, the loss by way of a theft was not reimbursable.
4. Such a policy came up for consideration of the Hon’ble Supreme Court in United India Insurance Co. Ltd. V. Harchand Rai Chandan Lal (2004) 8 SCC 644: 2004 (7) Supreme 110.. In that case, a policy against burglary and/or housebreaking had been taken by the responden
