NCDRC

NCDRC

RP/4052/2008

ORIENTAL INSURANCE CO. LTD. - Complainant(s)

Versus

ANIL SARIN - Opp.Party(s)

M/S. PRADEEP GAUR & ASSOCIATES

12 Apr 2010

ORDER


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHIREVISION PETITION NO. 4052 OF 2008
(Against the Order dated 29/04/2008 in Appeal No. 134/2008 of the State Commission Delhi)
1. ORIENTAL INSURANCE CO. LTD.A-25/27,Asaf Ali RoadNew Delhi-110002Delhi ...........Petitioner(s)
Versus
1. ANIL SARIN146,Jagriti Enclave Vikas MargDelhi-110092 ...........Respondent(s)

BEFORE:
HON'BLE MR. JUSTICE B.N.P. SINGH ,PRESIDING MEMBER
For the Petitioner :NEMO
For the Respondent :NEMO

Dated : 12 Apr 2010
ORDER

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There has been delay of 39 days in preferring revision petition beyond the prescribed period of limitation for which an application for condonation of delay has also been filed by petitioner. Having gone through the reasonings assigned therein, we hereby condone the delay. Brief facts are that respondent secured a Shopkeeper Insurance policy from petitioner Insurance Corporation for different sums for fire and allied perils, for loss due to burglary and house-breaking on stock of drugs and pharmaceuticals and for cash in transit. While so, in the intervening nights of 1-2/09/2000, there was theft in premises of respondent using duplicate keys of insured premises. Allegedly, medicines of value of Rs. 4,00,000/- and cash of Rs. 95,000/- were found missing. A police case was registered under section 380 IPC with local police station. Insured too was informed about theft of incident when M/s. Garg & Jain Insurance Consultants Pvt. Ltd., Surveyor & Loss Assessor was appointed to conduct survey and make assessment of losses. During investigation, it was found that theft was committed by Ashutosh Mishra, an erstwhile employee of respondent using duplicate key with no signs of breaking or forcible entry in the premises. During investigation of police case, said Mishra was apprehended by police and made a statement before police presumably under section 161 CPC acknowledging commission of theft by him using duplicate key. However, against theft of medicines of value of Rs. 4,00,000/- and cash of Rs. 95,000/- as estimated by respondent, Investigator assessed losses to the extent of Rs. 1,96,451/- though otherwise, Investigator observed that, in view of Exclusion clause of policy, respondent had not a claim for indemnification of loss by insurance Corporation. Since claim was not settled by insurance Corporation, aggrieved by repudiation, respondent took recourse to consumer grievance redressal agency filing a complaint with District Forum. Though grounds of repudiation of claim about claim of respondent being explicitly hit by Exclusion clause was reiterated by insurance Corporation, District Forum, having over-ruled objections raised, while accepting claim, directed insurance Corporation to pay Rs.1,96,451/- based on assessment of losses made by Investigator. Appeal too, preferred by insurance Corporation did not find favour with State Commission too, which dismissed appeal making certain observations which are relevant to quote :- “ ….. Whenever a person enters into any premises which he is not authorized to enter, the force is presumed. No person can have access to a premises or to a vehicle which he is not legally authorized to enter into or has restrained entry and if he does so force is implied. It was not a case of using or procuring duplicate keys. Rather it was a case of theft committed by way of use of force by entering into the premises and the using force in opening or breaking open the safe. ……. If the goods are lying inside the house locked or otherwise, the entry into it has an element of force and, therefore, such a case has to be treated as burglary for the purpose of indemnification of loss against insurance policy. Force does not mean that one should use physical force against a person standing outside the yard…… Unauthorised entry into a premises for committing theft or removing an article by breaking open the lock or removing an article from the vehicle in unauthorized capacity tantamount to a ‘forced entry’ as forced entry does not necessarily involve element of using force against a person or causing injury to him. ……”. Least said is better about interpretation of terminology of violence or physical force, existence of which only can make insurance Corporation liable to indemnify the loss suffered by insured. Insurance coverage provided to insured stipulates that theft involves entry into or exit from insured premises by forcible and violent means or theft following assault or threat thereof to insured or any employee of insured or member of insured’s family. However, this insurance coverage has also a rider with Exclusion clause which were in following terms :- a) loss or damage by burglary and/or house-breaking where any partner or employee of the insured or member of insured’s family is concerned, as a principal or accessory. b) Loss or money abstracted from the safe following the use of the key to the said safe or any duplicate thereof belonging to the insured unless such key has been obtained by assault or violence or any threat”. True it is, that if there was burglary/house-breaking by any partner or employee of the insured or member of the insured’s family, as a principal or accessory, that would not make insurer to indemnify the losses. As has been the case of respondent, theft was committed by an ex-employee which Exclusion clause did not explicitly bar for indemnification of loss. But that is not the end of the chapter. Even though the terms and conditions of policy explicitly postulates that only in case of burglary/house-breaking by forcible and violent means or theft following assault or threat thereof to the insured or any employee of the insured or any member of the insured’s family, insurance Corporation was liable to honour the insurance coverage, fora below, notwithstanding there being any evidence about use of violence, force or house-breaking, having misconstrued the tenets of policy, over-ruled objections raised on behalf of insurance Corporation. It was very much acknowledged even by respondent that access in the premises was gained by use of duplicate key without there being any evidence of forcible and violent entry or exit. State Commission while interpreting terms and conditions of policy, took aid of ‘Dictionary’ meaning of ‘theft’ and interpreted the terms and conditions otherwise than what was meant by parties while executing the insurance document. When parties have defined a term in the document, the true import of expression used in document should be given. It is not permissible either for the Court or other Forums to stretch the terms and conditions to an extent which the party never intended. Since insurance also is a contract between the parties, it would be quite unfair to give a different interpretation to the terms used in the policy document by the parties, and without dilating the issue further, I am tempted to put on record certain observations made by Hon’ble Apex court in the matter of United India Insurance Co. Ltd. Vs. Harchandrai Chandanlal reported in SLT V (2004) 876. It is not open to interpret the expression appearing in policy in terms of common law but it has to be given meaning to the expression as we find in the policy. The Act that causes loss must fall within definition of policy and it cannot take cover and contents of definition as laid down in the criminal law. Yet, preceding the case of Harchand Rai, in case of Oriental Insurance Co. Ltd. Vs. Sony Cherian – 1999 CCJ 1333 SC, Hon’ble Apex court made similar observations in following terms : “Insurance policy between the insurer and the insured represent a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risk covered under the policy, the terms of the agreement had to be strictly construed and determine the extent of liability of the insurer”. Even preceding the aforesaid observations made by Hon’ble Apex court, the same views were held by Hon’ble Apex court in case of General Insurance Co. Ltd. Vs. Chandmal Jain – 1956 ACJ 261 SC when a constitution Bench observed that “in interpreting document resulting to a contract of insurance, the duty of the court is to interpret the word in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves”. Respondent, however, submits referring to order dated 12.02.2009 passed by State Commission against order of District Forum dated 01.01.2008, in Appeal bearing No. A-08/97, filed by respondent (Anil Sarin) for enhancement of compensation, the award of compensation of Rs. 1,96,451/- made by District Forum was enhanced to Rs. 3,22,945/- against which no revision has been filed by insurance Corporation before us. In the piquant situation, I refrain myself from expressing any opinion or make any comment on the finding of State Commission passed in appeal No. A-08/97. Both fora below having mis-interpreted the tenor of insurance document, held repudiation to be invalid, made by insurance Corporation. In back drop of factual backgrounds of the case and the ratio of decisions cited supra, insurance Corporation was well within its right to repudiate claim of respondent. Resultantly, revision petition succeeds with no order as to cost.



......................JB.N.P. SINGHPRESIDING MEMBER