BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
THURSDAY, the 28th day of January, 2016
First Appeal No.11/2008
M/s United India Insurance Co. Ltd.
Rep. by its Divisional Manager ……… Appellant
Vs.
M/s Kumar Labour Contractor,
Rep. by K.Kumar …………….. Respondent
(On appeal against the order passed by the District Forum, Puducherry in Consumer Complaint No.80 of 2005, dated 27.09.2007)
Consumer Complaint No.80 of 2005
M/s Kumar Labour Contractor,
Rep. by K.Kumar, S/o Kothandapany,
71/2, Main Road, Koodapakkam,
Pondicherry …………….. Complainant
Vs.
1. The United India Insurance Co. Ltd.,
Rep. by its Development Officer,
No.46, J.N.Street, Pondicherry.
2. The Divisional Manager,
M/s United India Insurance Co. Ltd.,
No.46, J.N. Street, Pondicherry. …………… Opposite Parties
BEFORE:
HON’BLE THIRU JUSTICE K.VENKATARAMAN
PRESIDENT
THIRU S.TIROUGNANASSAMBANDANE,
MEMBER
FOR THE APPELLANT:
K.Ravikumar,
Advocate, Puducherry.
FOR THE RESPONDENT:
Thiru M.Nakkeeran,,
Advocate, Puducherry.
O R D E R
(By Hon’ble Justice President)
This appeal is directed against the order of the District Consumer Disputes Redressal Forum, Puducherry made in Consumer Complaint No.80/2005, dated 27.09.2007
2. The first opposite party before the District Forum is the appellant herein and the complainant thereon is the respondent.
3. The parties are referred in the same position as they have been arrayed before the District Forum for the sake of convenience.
4. It is the case of the complainant before the District forum that it is doing re-packing and banding operation on contract with M/s Hindustan Lever Limited at Earnest Godown-D, Villupuram Main Road, Pallithennal Post, Kandamangalam, Puducherry. Stocks in the godown were insured with the 1st opposite party under two policies, dated 26.12.2003 each for a sum of Rs.one Crore. The policies were taken for risk, fire and burglary. While taking stock verification, it has been found that 459 boxes containing soaps each 100 grams were stolen. Each stolen box contains 162 soaps and each costs Rs/12/-. The value of the loss was estimated at Rs.8,92,296/-. The complainant, immediately coming to know of the same, gave a complaint to the S.H.O., Kandamangalam P.S. on 20.02.2004 u/s 380 IPC and F.I.R. was registered on the said date. The Station House Officer, Kandamangalam P.S. visited the scene of occurrence on 21.02.2004 and examined the witnesses and prepared observation mahazar and sketch. The investigation revealed that unknown culprit entered through the ventilator situated between the roof and wall on the southern side of the godown and scaled over the wall and committed theft. Since the unknown culprit could not be apprehended, the action was dropped. Therefore, the complainant after approaching the 1st opposite party filed the complaint before the District Forum since the 1st opposite party failed to make payment requested by the complainant.
5. The 1st opposite party resisted the claim solely on the ground that the theft was not committed by either force or by house-breaking as per the policy conditions and that the complainant is not entitled to claim any amount from it.
6. Before the District Forum, on behalf of the complainant two witnesses were examined and 29 documents were filed and marked as Exs.C1 to C29. On behalf of the first opposite party, one witness was examined and four exhibits were filed and marked as Exs.R1 to R4. After analyzing the evidence on record and the documents, the District Forum accepted the claim of the complainant and passed order to that effect.
7. Aggrieved over the same, the 1st opposite preferred an appeal before this Commission.
8. When the matter came originally before this Commission, it has passed order on 14.10.2010 agreeing with the decision of the District Forum. However modified the interest payable from 12% p.a. to 7.5% p.a. Aggrieved over the same, the 1st opposite party preferred appeal before the Hon'ble National Commission. The Hon'ble National Commission set aside the order on the sole ground that one of the member who sat before the District Forum was also a member before the State Commission while rendering an order therein. Thereupon, the Hon'ble National Commission remitted the matter before the State Commission and hence the appeal is before us.
9. We have heard the learned counsel appearing for the 1st opposite party as wells the counsel appearing for the complainant. We have also perused the entire records.
10. The points for determination are:
1. Whether the theft committed in the complainant's godown will cover the policy conditions and that the 1st opposite party is liable to pay compensation to the complainant?
2. To what other reliefs the parties are entitled?
11. POINT NO.1:
It is not in dispute that the stocks of the complainant were insured with the 1st opposite party under two policies covering the risk of fire and burglary for Rs.1.00 crore each. It is also not in dispute that stocks worth Rs. 8,96,296/- were found to be missing/ stolen from the complainant's godown while taking inventory on 19.02.2004. It is also not in dispute that unknown culprit committed theft of stocks entering through the ventilator situated between the roof and wall. The documents filed on behalf of the complainant also proves the above facts.
12. Further, it is not disputed that the complainant made a claim before the 1st opposite party and a survey report was prepared on behalf of the 1st opposite party. But the only question that has to be considered is, on the facts and circumstances the theft committed on the godown of the complainant whether it will come under the category of 'burglary' as per the policy conditions. It is the specific stand of the Insurance Company that as regards burglary policy, the specific clause specifically mentioned that theft either by force or house-breaking should be there for the applicability of the policy. Thus, it has to be seen that the policy conditions referred about two type of cases, viz. 1) Theft by force and violence and 2) house-breaking. It is the case of the complainant that when stocks were checked it has been found that 459 boxes containing soaps were missing and that it has been found that through the ventilator situated between the roof and wall on the southern side of the godown, theft would have been committed. But the question that arises for consideration is whether the theft was committed by force and violence or by house-breaking. It is not the case of the complainant that there was theft by force or violence or house-breaking. In such circumstances, it has to be seen whether the complainant can invoke the policy conditions which he has taken from the 1st opposite party.
13. Though several judgements have been relied on by them, in our considered view only few judgements referred to herein are relevant for the purpose of this case. In the case United India Insurance Co. Ltd. Vs. Pushpalaya Printers (2004 SAR Civil – 311, the Hon'ble Apex Court held that "in case of any ambiguity or a term being capable of two possible interpretations one beneficial to the insured should be accepted consistent with purpose for which policy is taken".
14. Similar view was taken in the case Life Insurance Corporation of India Vs. Ram Singh Tanwar ( 2007(1) CPR 449 (NC) and again in the case United India Insurance Co. Ltd through its Divisional Manager Vs. Payal Gupta (2007(2) C.P.R.21.
15. In our considered view the principles laid down by the Hon'ble Apex Court therein are not relevant to the case on hand since there is no ambiguity in the policy conditions.
16. As far as the other judgement reported in 2004 SAR (Civil) 907 in the case United India Insurance Co. Ltd. Vs. Mrs. Harchand Rai Chandarial, the Hon'ble Apex Court has held as follows:
We would like to observe that the terms of the policy as laid down by the Insurance Company should be suitably amended by the Insurance Company so as to make it more viable and facilitate the claimants to make their claim. The definition is so stringent in the present case that it gives rise to difficult situation for the common man to understand that in order to maintain their claim they will have to necessarily show evidence of violence or force. The definition of the word ‘burglary’ should be given meaning which is closer to the realities of life. The common man understands that he has taken out the policy against theft. He hardly understands whether it should precede violence or force. Therefore, a policy should be a meaningful policy so that a common man can understand what is the meaning of burglary in common parlance. Therefore, we have interpreted the present policy strictly in terms of the policy but we hope that the insurance company will amend their policies so as to make them more meaningful to the public at large. It should have the meaning while common man can easily understand rather than become more beneficial so as to defeat the cause of the public at large”.
17. If the policy conditions stipulate certain thing, it is binding on both the parties. It has also been clearly held by the Hon'ble Apex Court that the policy conditions have to be construed as it is and one cannot add or subtract something therein. Further, the Hon'ble Apex Court has held that suitable amendments have to be made in the terms of policy in order to be more viable for the claimants to make their claim.
18. The above observation of the Hon'ble Supreme Court can only be a guidance and a direction to the concerned authorities to amend the policy conditions. Till the same is amended, the policy conditions which exist alone will prevail.
19. Considering the totality of the circumstances referred to above, we are of the view that as per the policy conditions, the claimant is not entitled to any amount since the policy do not cover the case on hand.
20. Therefore, we are unable to accept the view taken by the District Forum holding the opposite parties are liable to pay loss occurred to the complainant. Regarding the interest that has been awarded by the District Forum is concerned, since we have taken a stand that the 1st opposite party is not liable to pay any amount towards loss to the complainant, there need not be any order in this regard.
21. In fine, the order of the District Forum made in C.C.80/2005, dt. 27.09.2007 is set-aside and the appeal stands allowed. The parties have to be bear their respective costs.
Dated this the 28th day of January, 2016
(Justice K.VENKATARAMAN)
PRESIDENT
(S.TIROUGNANASSAMBANDANE
MEMBER
