Per :- Mr. Deshpande, President Place : BANDRA JUDGMENT The Complainant is a freight forwarding company. It had obtained an ‘Office Package Insurance Policy’ from the Opposite Party – Insurance Company; which covered the Complainant’s five branch offices, including its branch office at Delhi. The insurance policy covered fire & allied perils, burglary & robbery including theft and public liability. Facts leading to this consumer complaint may be stated in brief as below:- [2] On 2/5/2007, at around 02:00 p.m., Mr. Updesh Verma, Accounts Manager and Mr. Kanwal Chib, Branch Manager, Delhi; of the Complainant’s Company had counted cash amount in sum of Rs.2,67,500/-, been the proceeds of Delhi Branch and an amount in sum of Rs.6,32,500/- being the proceeds received from Mumbai Branch, both totaling to an amount in sum of Rs.9,00,000/- and kept the same in a digital iron cash safe placed in the wooden cupboard lying inside the cabin insider the Branch Manager’s office. The said wooden cupboard also contained one Acer laptop handed over by Mr. Ashwini Chauhan, Regional Sales Manager, who was relieved of his services on the same day. [3] The said Digital Iron Cash Safe as well as the wooden cupboard were locked by Mr. Updesh Verma and the keys were handed over to Mr. Anand Trivedi, who had joined the Delhi Branch Office as the new Branch Manager, transferred from Mumbai Branch. The said wooden cupboard and digital iron cash safe were neither opened nor operated by anybody as the said cash amount of an amount in sum of Rs.9,00,000/- was kept separately for purchase of a new property (Guest House), for the Complainant in Delhi. [4] On 11/5/2007, at around 02:30 p.m., Mr. Anand Trivedi gave the keys of the said wooden cupboard to Mr. Updesh Verma for opening the same to keep one laptop handed over by Mr. Kanwal Chib, who was relieved of his services. Mr. Updesh Verma opened the said wooden cupboard in presence of Mr. Kanwal Chib and Mr. Anand Trivedi and it was found that the digital iron cash safe as well as the Acer laptop were not there inside the wooden cupboard and on checking, it was found that the chitkan (latch of the wooden cupboard) was tilted. [5] Mr. Anand Trivedi reported the said theft to the Vasantkunj Police Station and FIR No.300/07 was registered under Section-380 of the Indian Penal Code i.e. theft of dwelling house. The police visited the side and investigated into the matter but till date neither the cash nor, the properties have been traced. [6] The said loss was also reported to the Opposite Party, vide a letter dtd.15/5/2007, lodging a claim under the insurance policy, which was negated by the Opposite Party – Insurance Company; vide its letter dtd.24/8/2007 for the specific reason that the said loss in question was not due to burglary and for other reasons contained therein, after due verification. [7] The Opposite Party – Insurance Company; appointed a surveyor, by name – M/s. Atul Kapoor & Co., to assess the loss. On the basis of the report submitted by the surveyor, the Opposite Party – Insurance Company; repudiated the claim of the Complainant, vide a letter dtd.24/8/2007 on the grounds mentioned in the repudiation letter. The Complainant served a legal notice calling upon the Opposite Party – Insurance Company; to pay as per the insurance policy. However, there was no response from the Opposite Party – Insurance Company; and then, the Complainant filed present complaint before this Forum, seeking direction as against the Opposite Party – Insurance Company; to pay to the Complainant, an amount in sum of Rs.9,00,000/- together with interest thereon besides compensation in sum of Rs.1,00,000/-. [8] Pursuant to the notice of appearance issued by this Forum, the Opposite Party – Insurance Company; appeared and contested the complaint by filing its written version of defence and admitted that the Complainant had purchased an insurance policy from the Opposite Party – Insurance Company; which policy covered furniture & fixtures, cash in safe and public liability. The Opposite Party – Insurance Company; justified action on its part of repudiating the claim on the Complainant on the ground that the amount, which was stolen, was not kept in a safe, as mentioned in the police document as well as it was not kept in a strong-room. Insurance policy, no doubt, covered burglary, but not theft. Thus, taking stand that the claim was besides and beyond the terms of the insurance policy, the Opposite Party – Insurance Company; justified its action of repudiation of the claim. [9] The Complainant filed its rejoinder to the written version of defence, as filed by the Opposite Party – Insurance Company; and reiterated the allegations in the complaint. According to the Complainant, the cupboard in which the cash was kept was in the Branch Manager’s cabin, where access was restricted. The Complainant also reiterated that the word – ‘burglary’, as mentioned under the policy document was evolved by the Opposite Party – Insurance Company; to suit their purpose and in fact, policy document speaks of ‘theft’, which was case in hand. [10] The Complainant filed on the record an affidavit of evidence of its authorized representative, by name – Mr. Dharmesh Manjeshwar; whereas the Opposite Party – Insurance Company; has produced on the record an affidavit of evidence of its Assistant Manager (Claims), by name – Smt. Shilpa Bendale-Prasad. Parties to the complaint proceeding have produced on the record copies of relevant documents in support of their respective claims. The Complainant has produced on the record a copy of the insurance certificate as well as policy document. Both the parties have filed their respective written notes of arguments. [11] We have gone through the pleadings, affidavits and documents as well as written notes of arguments filed by the parties. [12] We take the points that arise for our consideration and record our findings there-against as below:- Sr. No. | Points for consideration | Findings | 1. | Whether the Complainant has proved that the Opposite Party – Insurance Company; is guilty of deficiency in service on account of repudiation of the Complainant’s claim? | NO | 2. | What order? | The complaint stands dismissed. |
REASONS FOR FINDINGS [13] Copy of the policy document is produced on the record by the Complainant and Clause No.(02) of the policy document pertains to burglary & robbery, including theft. Under Clause No.(2.1) of the policy document, it is mentioned that the Opposite Party – Insurance Company; will indemnify the Insured – the Complainant herein; in respect of the loss of or damage to Contents or any part thereof except money whilst contained in the Insured Premises caused by actual or attempted Burglary and/or Robbery and/or theft during the Policy Period. As per Clause No.(2.2.1) of the policy document, the coverage provided under the said insurance policy included the loss of money caused by actual or attempted Burglary during the Policy Period but only if the money is contained in a Safe or Strong Room whilst the Insured Premises are unoccupied. As per sub-clause (06) of Clause-A under the policy document, which speaks about Definitions, ‘Burglary’ means theft following the unforeseen and unauthorized entry to or exit from the Insured Premises by aggressive and detectable means. Further, as per sub-clause (27) of Definition Clause-A of the policy document, ‘safe’ means a strong cabinet within the Insured Premises designed for the safe and secure storage of valuable items, and access to which is restricted. Then, as per sub-clause (28) of the Definition Clause-A of the policy document, ‘Strong Room’ means a room within the Insured Premises designed for the secure storage of money, and access to which is restricted. [14] Now, the admitted facts on record reveal that cash amount in sum of Rs.9,00,000/- was kept in the digital iron cash safe placed in a wooden cupboard lying inside the Complainant’s Branch Manager’s cabin. Evidence adduced by the Complainant shows that hook of the wooden cupboard was found to have been removed. In any case, cash amount in sum of Rs.9,00,000/- was not kept in a safe and it was also not kept in a strong room. Moreover, wooden cupboard was kept in the Branch Manager’s cabin, where access cannot be said to be restricted. Number of visitors, who want to have a meeting or discussion with the Branch Manager, could enter into his cabin. Members of the staff definitely would have access to the Branch Manager’s cabin. Therefore, that cannot be a place where access can be said to be restricted. [15] As against this, as per Clause No.(2.2.1) of the policy document, the coverage provided under the said insurance policy was applicable for burglary only if the money is contained in a Safe or Strong Room whilst the Insured Premises are unoccupied. In the present case, cash amount in sum of Rs.9,00,000/- was not kept in a safe, as defined under sub-clause (27) of Definitions Clause-A under the policy document, which defines ‘safe’ as a strong cabinet within the Insured Premises designed for the safe and secure storage of valuable items, and access to which is restricted. No doubt cash amount in sum of Rs.9,00,000/- was kept in a digital iron cash safe, but that was not a ‘safe’, as contemplated under sub-clause No.(27) of the Definition Clause-A under the policy document. Cash amount was also not kept in the ‘strong room’, as contemplated under sub-clause (28) of the Definition Clause-A of the policy document. [16] Moreover, cash appears to have been taken away being stolen and no force or violence was used. No doubt, Clause No.(2.1.1) of the policy document covered theft, but it pertained to other property of the insured and not the cash. Clause No.(2.2.1) of the policy document only refers to money (Cash), but the words & expression used there are ‘actual or attempted Burglary’. Word – ‘burglary’ has been defined under sub-clause (06) of the Definition Clause-A, under the policy document and it means theft following the unforeseen and unauthorized entry to or exit from the Insured Premises by aggressive and detectable means. In this context, Learned Advocate for the Opposite Party – Insurance Company; in his written notes of arguments, has rightly relied upon the decision of the Hon’ble Supreme Court in United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal ~ IV-(2004)-CPJ-14-(SC) = (2004)-8-SCC-644. Observations in paragraph (06) of the reported judgment, show that for ‘burglary’, there must be use of force or violence, in absence of which an insured cannot claim indemnification against the insurance policy. We propose to reproduce observations in paragraph (06) of the reported judgment, which reads as follows:- “The question before us is whether the 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 house-breaking 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 the 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 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 to 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 office, 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.” [17] In view of the foregoing discussion, we hold that claim of the Complainant was not covered by the contract of insurance and the Opposite Party – Insurance Company; was justified in repudiating the claim of the Complainant. We, therefore, hold that the Complainant has failed to prove that the Opposite Party – Insurance Company; is guilty of deficiency in service. With this, we proceed to pass the order as below:- ORDER The complaint stands dismissed. No order as to costs. Parties shall be informed accordingly, by sending certified copies of this order.
| | [HONABLE MR. MR.V.G.JOSHI] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT | |
