BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT  HYDERABAD.

F.A. 99/2006  against C.C. 846/2003,  Dist. Forum-I, Hyderabad

Between:

The New India Assurance Company Ltd.

Rep. by its Senior Divisional Manager

401 & 402, Alkarim Trade Centre

Ranigunj, Secunderabad.                           ***                           Appellant/

            Opposite Party       

                                                                   And

G. Srinivas Rao

S/o. Balakishan Rao

Proprietor,

M/s. Sri Srinivasa Filling Station

R/o. 1-2-365/4/A, Gagan Mahal

Hyderabad.                                                           ***                         Respondent/

Complainant

Counsel for the Appellant                           Smt. S. N. Padmini

Counsel for the Respondent:                       M/s. T. Sri Ranga Rao

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT.

                                 SMT. M. SHREESHA,  MEMBER.

    &

                                 SRI K. SATYANAND, MEMBER
                                                         

WEDNESDAY, THIS THE TWENTY SEVENTH  DAY OF MAY TWO THOUSAND NINE

ORAL ORDER:  (Per Hon’ble Sri Justice D. Appa Rao, President.)

***

          This   is an appeal preferred by the insurance company against the order of the Dist. Forum  directing it to pay Rs. 1,24,890/- together with costs of Rs.2,000/-.

2)                The case of the complainant in brief is that  he is the proprietor of M/s. Srinivasa Filling Station, Sadasivapet.  He has taken  burglary  insurance policy for the  Godrej safe locker kept in the filling station for Rs. 4 lakhs for the period from  6.3.2002 to 5.3.2003 vide Ex. A1.  While so,  on 9.5.2002  at about 3.40  a.m.  when he was away,   some unknown persons had committed theft  of  Rs. 1,24,890/- when his employees were slept in the adjacent room.    On information he  reported the matter to the police who in turn registered a case in Crime No. 94/2002 on 23.5.2002.   When he made  claim,  the same was repudiated. Therefore he claimed Rs. 1,24,890/- together with compensation of Rs. 20,000/- and costs.

3)                 The appellant resisted the case.  While admitting issuance of policy for burglary,  it alleged that the incident was occurred on 9.5.2002  and a belated complaint was  made on 23.5.2002 i.e.,  after 14 days.   An investigator was appointed who in turn reported that the claim was not genuine.   At any rate as there was no forcible entry  into the premises and it does not constitute burglary, it was not liable to pay compensation.    It falls under  the key clause as the theft was committed with the original key of the safe.  As per exclusion clause No. VII  of the said policy the insurance company  shall not be liable in respect of loss of money and or other property abstracted from safe following the use of the key to the  safe or any duplicate thereof belonging to the insured, unless such  key has been obtained by assault or  violence or any threat.   In the circumstances the complainant was not entitled to any claim, and therefore prayed that the complaint be dismissed.

4)                The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A12  marked  while the appellant  got  Ex. B1 investigation report and Exs. B2 photographs marked. 

5)                The Dist. Forum after considering the evidence placed on record opined that  there was violence as the safe  was broke open after it was shifted to open space,   and therefore  it covered  the risk.    Since the complainant could prove  that  he  placed an amount of Rs. 1,24,890/-  in the safe chest, it directed the insurance company to pay Rs. 1,24,890/- with costs of Rs. 2,000/-.

6)                Aggrieved by the said decision, the insurance company preferred this appeal contending that the Dist. Forum erred in holding that the policy covers the incident in question.   It does not amount to burglary.  At the most it comes under the definition of ‘theft’ which excludes the terms of the policy,  and therefore it prayed that the appeal be allowed.

7)                The point that arises for consideration is whether the Dist. Forum has erred in concluding that the incident covers the terms of the policy and the appellant is liable to pay the amount.?

8)                 It is an undisputed fact that  the Godrej   Safe Chest  situated in the  petrol filling station was insured with appellant,   evidenced under Ex. A1 policy for burglary.   It is also not in dispute that  the complainant  at the earliest in his complaint to the police  at about  10.00 p.m. on  23.5..2002  stated that  in his absence one  Srinivasa Rao,  who is looking after  his petrol bunk slept in the adjacent room,  and in the early hours  at about 3.40 a.m.  somebody had informed that  table and other articles were  found behind the  room.  Immediately he witnessed the articles  found lying  behind the room.   The lock of the Godrej almirah was missing.  He suspected  that some unknown thieves might have stolen away the keys.    When the complainant had  returned on 23.5.2002,   he was informed about the said fact.   Then they opened the almirah  with duplicate key and found  net cash of Rs. 1,24,890/-

was missing.   Then  he complained that some unknown culprits might have committed the theft  on 8.5.2002.   Basing on the report the police  registered a case in Crime No. 94/2002 on 23.5.2002.   They apprehended five persons and sent them to  judicial custody.   It is not known as to what  happened  to the  case.     An investigator was appointed by the insurance company  after receipt of the claim.     After verifying facts,  he suspected some foul play as  report was belatedly given viz., for the offence that said to have taken place on  9.5.2002  the report was given on 23.5.2002  after 14 days.   He opined that  it was  a case of theft and not a burglary the terms of the policy do not cover the liability and therefore repudiated the claim. 

9)                 A perusal of the record does not in any way  show that there was forcible entry of any person while committing theft, may be while taking away the cash,   some of the articles were shifted.   However, the Dist. Forum opined that itself  constitutes violence. 

10)               At the cost of repetition, we may state that the insurance policy was taken for burglary.   The  Supreme Court had  considered   the term ‘burglary’   with reference to policies taken for burglary, theft and house breaking in   United India Insurance Company Ltd. Vs. Harchand Rai Chandan Lal reported in IV (2004) CPJ 15 (SC).    Their Lordships’ opined that the definition of burglary 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.

11)              Unfortunately neither the complainant nor the insurance company  filed the terms of the policy in order to appreciate as to the exact term of ‘burglary’  mentioned in the terms and conditions.   The expression  of  the term ‘burglary’ could not have been different and that  theft  if any is committed it  should necessarily precede with violence.   The element of force and violence is a condition precedent for burglary. 

12)              Coming to the facts,  for the burglary that said to have taken place on 9.5. 2002  complaint was given on 25.2.2002.   There is no reason why they did not give report till the complainant  had arrived.  The articles were found behind the room and  some of  the articles were missing and   that there were signs of shifting of articles.  More so, when he found that the key was also stolen.   All this was happened when he was sleeping  in the other room.   There was no force or violence  on him.  On the next day he could see that  safe/chest was shifted.  No where the use of force or violence was made a mention. 

13)              Apart from it the  complainant had to prove that his brother-in-law  had placed Rs. 1,24,890/-  in the chest and the same was found missing.   Assuming without admitting that there was burglary,  which in fact was  suspicious.  Admittedly,  Ranga Rao, his brother-in-law could not establish  that he  kept cash in the chest.   The complainant alleges that his brother-in-law  kept  Rs. 92,910/- on 8.5.2002 and Rs. 1,10,010/-  on 10.5.2002 in the chest.    The stock statement  filed  by  the  insurance  company  surveyor   shows  that  they have procured  12000 liters  of  HSD of value of Rs. 2,02,550/-.  Therefore  there could not have been  cash on hand  in order to keep in the safe.  The said amount  was deposited  in the bank.   The complainant did not file the bank statement  prior to 10.5.2002.    Equally he did not file the purchase bills in order to show that  the complainant’s brother-in-law  had kept the amount in the chest.   He did not file account books or sale bills.

14)               Since the complainant  could not establish that  his brother-in-law  was having  Rs. 1,24,890/- with him and that he kept the said amount in the chest, we may not be able  to direct the insurance company to pay the said amount on the ground that the same was lost  in view of the burglary  committed in the premises.  He did not  file the affidavit of his brother-in-law along with necessary  statement of accounts in order to show that  he was having the said amount and he kept the same in the locker.   Ex. A7  statement does not in any way show that the said amount was available with him.   The complainant  obviously in order to side track  the issue filed Ex. A12,  Form-2 D  Saral Income Tax return towards payment of income tax.  From this fact, we do not see how this could establish that his brother-in-law had the amount and he  kept the amount in the safe.  The complainant had failed to prove that that he sustained loss of Rs. 1,24,890/- in the burglary  that was committed on 9.5.2002.    The Dist. Forum did not consider any of these aspects, and  simply awarded the amount.   The complainant, in the first place ought to have  proved that his brother-in-law  had kept the amount  in the safe and that was lost in view of the burglary.   Since the complainant could not establish  any of these facts, we are unable to appreciate the case filed by the complainant.

15)              In the result the appeal is allowed setting aside the order of the Dist. Forum, consequently, the complaint is dismissed.  However, in the circumstances of the case  no costs.

1)      _______________________________

      PRESIDENT           

2)      ________________________________

          MEMBER            

3)           _________________________________

          MEMBER

                                                                   Dt.    27 . 05.  2009.

*pnr

                                                “UP LOAD – O.K.”