Delhi

StateCommission

FA/13/245

MANJEET SINGH - Complainant(s)

Versus

BAJAJ ALLIANZ LTD. - Opp.Party(s)

31 Aug 2017

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision:31.08.2017

 

First Appeal- 245/2013

(Arising out of the order dated 01.02.2013 passed in Complainant Case No. 550/2008 by the District Consumer Disputes Redressal Forum (III), Janakpuri, New Delhi)

 

Sh. Manjeet Singh,

S/o S. Pratap Singh,

Proprietor of M/s. Udit International,

Presently at: B-123, First Floor,

Sitapuri, Part-II,

Near Dabri-Dwarka Main Road,

New Delhi-110045.

 

And Residing at:

H.No.216, First Floor,

Sector-45, Gurgaon.

…..Appellant

Versus

 

1. Bajaj Allianz General Insurance Co. Ltd.,

Through its Managing Director,

GE Plaza, Airport Road,

Yerwada, Pune-411006.

 

2. Bajaj Allianz General Insurance Co. Ltd.,

Through its Regional Manager,

1, DLF Industrial Estate,

Near Moti Nagar Metro Station,

Moti Nagar, New Delhi-110015.

.….Respondents

 

 

CORAM

 

Justice Veena Birbal, President

Salma Noor, Member

 

 

1.      Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

Justice Veena Birbal, President

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, the “Act”) wherein challenge is made to order dated 1.2.13 passed by the Consumer Disputes Redressal Forum(III), Janakpuri, New Delhi (in short, the “District Forum”) in CC No.550/2008 whereby the aforesaid complaint has been dismissed.

 

2.          Briefly the facts relevant for the disposal of the present appeal are as under:

Appellant/complainant is a Proprietor of M/s. Udit International and is engaged in the business of import, export and supply of garment accessories.  Appellant/complainant had taken a Burglary Insurance Policy from respondent/OP for the stock of his shop for the period from 27.8.07 to 26.8.08 wherein sum insured was Rs.80 lacs.  It was alleged that in the intervening night of 7^th-8^th September, 2007, theft took place in the premises and the thieves had changed the locks of the shop.  On 8.9.07, FIR was lodged and respondent/OP was also informed about the alleged incident and claim was also lodged with the respondent/OP.  A surveyor was appointed by respondent/OP who had assessed the loss at Rs.7,59,429/- and submitted report.  The police had also submitted final report.  Initially the FIR was lodged under Section 380 IPC but later on Section 457 was also added.  The case was closed after submitting untraced report by the SHO of concerned Police Station.  The respondent/OP repudiated the claim on the ground that incident was not falling within the definition of ‘burglary’ given under clause No.2.10 of the policy. 

3. Aggrieved with the repudiation, a complaint was filed before the District Forum seeking payment of loss assessed by the surveyor along with interest and compensation.         
4.           The complaint was contested by the respondent/OP by filing written statement wherein it was admitted that the Burglary Insurance Policy was taken by the appellant/complainant.  Appointment of surveyor to assess the loss was also admitted.  It was also admitted that the surveyor had assessed the loss to the tune of Rs.7,59,429/-. The respondent/OP took the plea that no signs of forcible entry by aggressive and detectable means were found in the premises.  It was alleged that there were also no visible marks of tampering on the shutter/laches etc.  The locks allegedly tampered by the miscreants were also not available at the affected premises.  It was alleged that the claim was not covered as per definition of ‘burglary’ given under clause No.2.10 of the policy as such was rightly repudiated.
5. Rejoinder was filed wherein contents of the complaint were reiterated and averments made by respondent/OP in its reply were controverted and denied. 
6. Both the parties filed evidence in the form of affidavits.  Appellant/complainant had filed additional evidence also i.e. an affidavit of Smt. Jaspal Kaur, landlady of the premises wherein the alleged burglary had taken place.
7. After hearing the parties, the District Forum rejected the claim on the ground that the appellant/complainant had failed to prove that theft took place in the premises through forcible entry and exit by unidentified persons as was alleged.  It was held that no marks on shutter were observed by the surveyor or by police showing that earlier the locks were broken.  The broken locks were also not produced by the appellant/complainant.  The District Forum suspected a property dispute and held that the matter needed a detail examination and accordingly dismissed the complaint and liberty was given to the appellant/complainant to approach Civil Court.
8. Aggrieved with the aforesaid order, present appeal is filed.
9. Ld. Counsel for appellant/complainant has contended that Ld. District Forum has given erroneous finding that the complaint cannot be disposed off in summary proceedings.  It is contended that District Forum failed to appreciate the version of appellant/complainant regarding theft and house-breaking in his premises for which FIR No.510/2007, under Section 380/457 was lodged on the day of occurrence itself.  It is contended that all the relevant documents were filed before the District Forum i.e. Insurance Policy, copy of FIR, final report under Section 173 Cr.P.C., letter dated 28.4.08 of respondent’s/OP’s surveyor etc.  However, District Forum failed to appreciate the same.  It is contended that even the surveyor had offered settlement amount of Rs.7,59,429/-.  It is further contended that the earlier report of surveyor, Shri Yash Pal Arora dated 6.2.08 has been concealed.  It is contended that it was the duty of the police to recover the broken locks and if the same were not recovered, the appellant/complainant cannot be blamed for that.   It is contended that the impugned order is liable to be set aside.
10. On the other hand, Counsel for the respondent/OP has contended that impugned order is legal and valid. It is contended that appellant/complainant has failed to prove that there was theft in the premises through any forcible entry and exit by aggressive and detectable means.  It is contended that report dated 6.2.08 of Yash Pal Arora is same as report dated 29.4.08 of M/s. Cunningham and Lindsay which is placed on record.  It is contended that no offer of settlement by surveyor was given.  It is further contended that even if it was given, as is alleged, the surveyor had no authority to make any such offer.
11. We have heard the Counsel for the parties and perused the material on record.
12. It is admitted position that the Burglary Insurance Policy was taken by the appellant/complainant effective from 27.8.07 to 26.8.08 for a sum of Rs.80 lacs.  The alleged incident of theft had taken place in the intervening night of 7^th-8^th September, 2007.  The matter was informed to the police wherein FIR was lodged initially under Section 380 of IPC and later on Section 457 of IPC was added.  The claim was also lodged with the Insurance Company which was repudiated vide letter dated 28.4.08.  The relevant portion of the letter is reproduced as under:

“We note that the reported loss does not fall within the scope of the policy since the loss occurrence is not due to aggressive and detectable means.  You will appreciate that the loss is not admissible under the policy and the claim is hereby repudiated.”

 

13. The term “Burglary” in the Insurance Policy is defined as under:

“Burglary” means the unforeseen and unauthorised entry to or exit from the Insured Premises by aggressive and detectable means with the intent to steal Contents therefrom.

 

14. Hon’ble Supreme Court in the matter of United India Insurance vs Harchand Rai Chandan Lal, IV (2004) CPJ 15 (SC) has interpreted the definition of ‘burglary’.  In the said judgement, Hon’ble Supreme Court after discussing the difference between theft and burglary has held as under:

“The question before us is whether in terms of the policy, the repudiation of the claim of the respondent by the appellant company is justified or not.  We have already reproduced the terms of the policy as also the definition of burglary and/or housebreaking as defined in the policy.  The definition given in the policy is binding on both the parties.  The policy is a contract between the parties and both parties are bound by the terms of contract.  As per the definition of the word burglary, followed with violence makes it clear that if any theft is committed it should necessarily precede with violence i.e. entry into the premises for committing theft should involve force or violence or threat to insurer or to his employees or to the members of his family.  Therefore, the element of force and violence is a condition precedent for burglary and housebreaking.  The term ‘burglary’ as defined in the English Dictionary means an illegal entry into the building with an intent to commit crime such as theft.  But in absence of violence or force the insurer cannot claim indemnification against the Insurance Company.  The terms of the policy have to be construed as it is and we cannot add or subtract something.  Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended.  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.  This expression appearing in the insurance policy came up for interpretation before the English Court and the English Courts in no uncertain terms laid down that burglary or theft has to be preceded with force or violence in order to be indemnified by the Insurance Company.  In this connection reference may be made the statement of law as summarized in Halsbury’s Laws of England Fourth Edition (203 Reissue) Para 646.  It reads as under:

 

          “646. Forcible and violent entry -

 

The terms of a burglary insurance may exclude liability in certain circumstances unless there is forcible and violent entry into the premises.  If so, the entry must be obtained by the use of both force and violence or the definition is not satisfied and the policy does not apply.  An entry obtained by turning the handle of an outside door or by using a skeleton key, though sufficient to constitute a criminal offence is not within the policy since the element of violence is absent.  However, an entry obtained by picking the lock or forcing back the catch by means of an instrument involves the use of violence and is therefore covered.  The policy may be so framed as to apply only to violent entry from the outside; or the violent entry into a room within the insured premises may be sufficient.  In any case, the violence must be connected with the act of entry; if the entry is obtained without violence, the subsequent use of violence to effect the theft, as for instance where a show-case is broken open, does not bring the loss within the policy.”

 

15. From the above observations of the Hon’ble Supreme Court as also the definition of ‘Burglary’ reproduced above, it is clear that if the theft is committed by forcible and violent entry or the force or violence has been used while exiting from the insured premises, it would be a burglary covered under the insurance contract.
16. The question for consideration is whether in terms of the policy, the repudiation of the claim of appellant/complainant by respondent/OP was justified or not.  As per FIR, Ex-CW-1/’B’ which is recorded on the statement of appellant/complainant, it is stated that on 7.9.07 at about 7.30 p.m., appellant/complainant had closed the godown and next morning at about 11.30 a.m., when he had gone to open the lock, he found that locks were changed.  The same were got opened and on checking 216 Roll Collar Felt, 115 Roll Shirt Collar Interlining and 4 big Boxes Shoulder Pad were found stolen.  Thereupon the appellant/complainant had immediately informed the police on 100 number and reported that some unknown person had committed theft in the godown.  Initially FIR was registered under Section 380 IPC.  Subsequently police added Section 457 of IPC.  The aforesaid statement was recorded on 8.9.07.  As per aforesaid statement, the appellant/complainant had already got opened the locks before informing the police.  In the evidence by way of affidavit, appellant/complainant has stated that some unidentified persons had stolen the goods after breaking the locks and thereafter changed the locks.  He is silent as to who had opened the alleged changed locks.  On 18.9.07, statement of one Mukesh, an employee of the appellant/complainant was recorded by surveyor.  The said employee had stated that the lock was broken by the police.  His evidence in the form of affidavit is also filed wherein also he has reiterated the aforesaid facts on oath.  Both have given different version on material point i.e. as to who had opened the lock.  The appellant/complainant has also given different version at different stages. 
17. In any event, from evidence on record it is not established that the entry for theft in the premises was forceful or by aggressive means.   The surveyor in the report, Ex-R-5 has also stated that there was no visible marks of tempering on shutter/latches etc.  There is also an affidavit of Mr. Anil Dhingra, Executive Director of M/s. Cunningham and Lindsay International Pvt. Ltd., an IRDA accredited surveyor wherein it is categorically stated that there was an inspection of premises in question, no sign of forcibly entry by aggressive and detectable means was seen.  There is also an affidavit of Sunanda Nimisha, Executive Director of respondent/OP wherein it is stated that the respondent/OP company had deputed M/s. Cunningham and Lindsay, an IRDA accredited independent surveyor to inspect the premises and assess the loss.  Shri Yashpal Aora was a member of team of the aforesaid surveyor.  She has also clarified that Shri Yash Pal Arora had not submitted any separate report.  M/s. Cunningham and Lindsay had sent a report dated 6.2.08 which was misplaced.  Respondent/OP vide letter dated 16.4.08 asked the said surveyor to submit another copy of the report.  Thereupon the said surveyor had submitted the report dated 29.4.08 which is same report which was submitted on 6.2.08.  Her affidavit has gone unrebutted and unchallenged. In view of above affidavit, it cannot be said that respondent/OP had concealed report dated 6.2.08 as is alleged.
18. In view of above discussion, we find that the evidence led by appellant/complainant does not establish that theft was accompanied by violence and that there was forcible entry in the premises.  The elements of force and violence are not established in the case.  The claim does not fall within the purview of policy.
19. Keeping in view the above discussion, we find no reason to interfere with the impugned order.  Appeal stands dismissed.

 

 

 

20. A copy of this order as per statutory requirements be sent to the parties free of charge and also to the concerned District Forum along with their record.  Thereafter the file be consigned to record room.

 

(Justice Veena Birbal)​

President

 

(Salma Noor)

Member