ORDER

NIPUR CHANDNA, MEMBER



    The complainant was having an Insurance Policy No.
323400/461/09/04/00000511 which was valid from 13-7-2009 to 12-7-2010.
It is alleged by the complainant that on 13-9-2009 a theft took place
in his business premises for which FIR no. 196/09 was registered on
13/10/2009U/s 380IPC at PS Bawana.  The complainant also informed the
OP insurance company about the alleged theft vide letter dated
16-09-2009.  It is alleged by the complainant that he had supplied all
the documents and information to the OP insurance company as and when
demanded by them.    Despite of providing all the relevant documents
and information, the OP insurance company repudiated the claim of the
complainant vide letter dt. 25/11/2011 on the ground that “ The case
of the complainant does not fall within the ambit of clauses of issued
policy”.

   The complainant visited the offices of the OP on various occasions
after receiving the rejection letter to re-consider the claim, but all
in vain.  The complainant has, therefore, approached this Hon’ble
Forum for the redressal of his grievances.

   The OP has contested the complaint and has filed a written
statement.  It has taken preliminary objections that the complaint is
false, frivolous, and is replete with baseless assumptions.
Preliminary objection no. 3 gives the defence of the OP justifying the
repudiation of claim.  The Para no. 3 is reproduced as under:-

3. That there is no deficiency of service on the part of the answering
respondent in repudiating the claim of the complainant as per terms
and conditions of BURGLARY AND HOUSE BREAKING INSURANCE POLICY
(BUSINESS PREMISES) no. 323400/46/09/04/00000511 valid from 13.7.09 to
12.7.10 (Annexure A) Immediately after receipt of intimation of loss
in the business premises of the complainant , the respondent deputed
its IRDA approved surveyor and panel investigator to find out the
veracity of the factum of loss and the estimate of damages. The
surveyor, Mr. R.A.Bansal & CO, C.A.. thoroughly ‘inspected the loss
and after examining books of accounts and other relevant documents
submitted his report dated 3.3.10 ( annexure B) for Rs. 1,86,062/-
subject to otherwise admissibility of the claim. It has also been
mentioned that the complainant has not maintained any stock records of
raw material and finished goods on day to day basis. As per report of
the investigator, N & B associates dated 8.2.10 (annexure C ) the loss
is on account of theft as FIR has been filed under section 380 IPC. In
commercial premises, theft following use of forcible entry is covered
as per condition ( a ) of operative clause of the policy and not theft
simplicter. Besides, FIR has been filed after about a month vide FIR
no. 196/09 dated 13.10.10 in breach of general condition no. 4 of the
policy. Accordingly the claim was rightly repudiated vide letter dated
25.1.11 ( annexure D ). Since there is no deficiency of service on the
part of the respondent, the complaint is not maintainable under the
Consumer Protection Act and is liable to be dismissed as such.





   The OP has contested the complaint on merits and has reiterated
that the claim has been rightly repudiated.  It has claimed that there
is no merit in this complaint and the same is liable to be dismissed.
It has prayed accordingly.

     We have heard arguments advanced at bar and have perused the record.

    The complainant has filed his own affidavit, wherein he has
corroborated the contents of the complaint, and has maintained that
the claim lodged by him has been repudiated on flimsy ground.  On
behalf of OP Ms Kavita Jain , an officer of the OP company has filed
evidence by way of her affidavit.

   The question for consideration before us is as to whether the OP
Insurance Company was justified in repudiating the claim lodged by the
complainant.

   It is the admitted case of the parties that a theft had taken place
in the business premises of the complainant on 13-9-2009.  It is not
denied that the complainant had informed the OP vide letter dated
16/09/2009about the incident.  It is also not disputed that a surveyor
had been appointed who had submitted a report and had assessed the
loss to the tune of Rs. 1,86,062. A surveyor is a neutral person and
his report cannot be rejected unless there are very sound and cogent
grounds. In the present case, the Insurance Company has rejected the
report of the surveyor and has repudiated the claim on the following
grounds:-

1.                             Kindly refer our various letters vide
which we had requested you to submit necessary documents related to
your claim. But regret to inform you that you have not submitted reply
alongiwht requisite documents/ papers at the relevant time.

2.                             On going through the file it was found
that FIR no. 196 dated 13.10.2009 which was lodged after one month and
FIR was lodged on your statement under section -380  which reads as
under:-

“Theft in dwelling house, Whoever commits theft in any building, tent
or vessel, which building, tent or vessel is used as a human
dwelling., or used for the custody of property, shall be punished with
imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.

Whereas our policy undertake to indemnify the insured to the extent of
intrinsic value of:-

 (a)Any loss of or damage to property or any part thereof whilst
contained in the premises described in the schedule of the policy  due
to Burglary or House-breaking (theft following upon an

actual forcible and violent entry of and / or exit from the premises)
and Hold-up.

(b)

Damage caused to the premises to be made good by the Insured resulting
from burglary and / or

house-breaking or any attempt there at any time during the period of insurance.

Provided always that the liability of the Company shall in no case
exceed the sum insured stated

against each item or Total Sum Insured stated in the Schedule



Hence keeping in view of above your claim file is closed as NO CLAIM.



Sd/-

Admn. Officer



    We have considered the aforesaid grounds, a perusal of which shows
that rather than considering the claim lodged by the complainant in
the right perspective, an effort was directed at finding out ways and
means to reject the claim.  It has been alleged by the insurance
company that in a commercial premises, theft following use of forcible
entry is covered as per condition (a) of operative clause of the
policy and not theft simplicitor. It has asserted that the claim was
rightly repudiated.

  We, however, are not in agreement with the contention of the
Insurance Company. It has been held in a number of cases that, an
entry obtained by picking the lock or forcing back the latch by means
of an instrument involves use of violence.” In the case of  National
Insurance Company Ltd V/s Public Type College that  :

 More ever in common  paralance burglary is understood as theft. we
have not been told if there was any separate policy for theft if we
draw on our knowledge as to what has happened in normal course of
event, it can be safely assumed that complainant asked for insurance
cover  for theft and the insurance  company did not insure the
property against theft by giving the policy name burglary and house
breaking. If we refer to Concise Oxford dictionary ( 10th edition)
burglary is defined as “ Illegal entry into a building with intent to
commit a crime such as theft”



 In the case of Surjeet J. Jain V/s New India Insurance Company  Ltd
II (2012) CPJ 602 (NC), a claim had been lodged on account of  loss
through burglary and house breaking. The hon’ble  National Commission
while rejecting the stand of the insurance company that  burglary
involved use of force and since no external force was used, the claim
was not payable , observed as under:

So far as the second is
pertaining to the absence of for threat or violence while committing
act of burglary through lock picking concerned, we agree with the Coun
for petitioner that this issue squarely settled by the judgment of
Commission in Mono Industries (supra wherein as quoted earlier, it has
been clearly ruled that an entry obtained picking the lock or forcing
back latch by means of an inst rum involves use of violence. In
instant case , since the entry to business premises was by picking
lock, this judgment is very m relevant and respectfully following same
and in view of the reasons given
in the foregoing paras, we are of the
view that the order of the STATE
COMMISSION cannot be sustained on both
counts and the same is set aside.

While coming to the above conclusion, the hon’ble National Commission
had followed its earlier decision in Mona Industries V/s New India
Assurance Company Ltd II , (2008) CPJ 125 (SC) wherein it had observed
as under:

It appears that the judgment
rendered by the Apex Court in the case
of United India Insurance Co. Ltd. V.
Harchand Rai Chandan Lal is
misunderstood by the insurance Company. In the said case, it has been
held that theft from the premises by forceful and violently’ would
mean entry by use
of any force, however, slight it may be. As such, an entry obtained by
picking the lock or forcing back the latch by means of an instrument
involves the use
of violence.





   In the present case, the OP company has placed on record the copy
of the investigation report dated 8-2-2010 wherein the investigator
had admitted that the theft had taken place in the business premises
of the complainant and had also given a note which reads as under:-

“ The  thieves have entered the main gate after breaking the lock from
inside further broke open basement lock which was locked from inside.
The rod is bent which resulted in opening of main basement gate from
where copper is said to be stolen.”



The aforesaid note clearly shows that the entry in the aforesaid
premises was obtained by breaking of the lock or by forcing back the
latch by means of an instrument which involves use of force.  The
incident is , therefore squqrely covered by the definition of
burglary.

As already stated, the surveyor has assessed the loss to the tune of
Rs. 1,86,062/-. Keeping in view the facts and circumstances of the
case we are of the considered opinion that the OP insurance  company
ought not to have rapudiated the claim on the ground mentioned in the
repudiation letter. In view of above  discussion we are of the
considered opinion that the OP insurance company has repudiated the
claim of the complainant on flimsy grounds. We hold OP guilty of
deficiency in rendering service to the  complinant. Accordingly we
direct  it as under:-

1. Pay to the complainant a sum  of Rs.1,86,062/- along  with interest
@ 10% p.a. from the date of repudiation of the claim till payment.

2. Pay to the complainant a sum of Rs 25,000/-as compensation for the
pain and agony suffered by him.

3.Pay to the complainant a sum of Rs. 10,000/- as cost of litigation.

       The OP shall pay this amount within a period of 30 days from
the date of this order failing which they shall be liable to pay
interest on the entire awarded amount @ 10% per annum.  IF the OP
fails to comply with this order, the complainant may approach this
Forum for execution of the order under Section 25/27 of the Consumer
Protection Act.

Copy of the order be made available to the parties as per rule.

    File be consigned to record room.

     Announced in open sitting of the Forum on.....................