Haryana

StateCommission

CC/121/2014

Neha Garments - Complainant(s)

Versus

New India Assurance Co. Ltd - Opp.Party(s)

07 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                Complaint No.121 of 2014

                                                       Date of Institution: 19.11.2014                  Date of Decision: 07.02.2017

 

Neha Garments and Vastrilaya 793-794, Bhim Nagar Chowk, New Railway Road, Gurgaon,Though its proprietor Neha Setia.

…..Complainant

 

Versus

 

New India Assurance Co. Ltd. D.P. 312801, Gurudwara Road, Opposite Kamla Nehru Park,Gurgaon 122001, through its Branch Manager.

          …..Opposite Party

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs.Urvashi Agnihotri, Member.                                    

For the parties:  Mr.Manoj Bajaj, Advocate counsel for the complainant.

                             Mr.Sukaam Gupta, Advocate counsel for the opposite party.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

          As per complainant it obtained Burglary policy  from opposite party (O.P.) for the period 26.03.2012 to 25.03.2013  for Rs.30,00,000/-. During the intervening night of 20/21.10.2012 burglary took place in his shop and it suffered loss to the tune of Rs.31,50,000/-.  After information, O.P. deputed Sh.B.S.Aggarwal of ABM Engineers and consultants for the purpose of survey which was conducted on 21.10.2012. Complainant submitted all the documents required by it, but, surveyor sent letters dated 01.03.2013 and 14.03.2013 for providing more documents. Surveyor also wrote letters  to suppliers of complainant for cross-verification of dealings between them.  Claim was duly corroborated by other evidence. O.P. did not accept it’s request without any sufficient reason. So it be directed to pay Rs.31,50,000/- alongwith interest @ 18% per annum from 21.10.2012 till realization, besides compensation to the tune of Rs.10/- lacs.

2.      O.p. filed separate reply controverting the averments of complainant.  It is alleged that there was no evidence of forceful entry or exit in the shop in dispute to cover it by the definition of  burglary. There was no scratches or any type of marks anywhere. Shutter side hooks and central hook etc were also not damaged, though it was alleged in FIR that thieves managed to break the locks.  Without cogent evidence of forceful entry it cannot be presumed that it was a case        of burglary. Burglary or Housebreaking is defined as under in policy:-

“Definition of Burglary or Housebreaking as defined in the policy is binding on both parties because it is a contract between the parties, as per the definition of Burglary in the policy, if any theft is committed it should necessarily precede with force or violence i.e. entry to or exit from the premises stated therein by forcible and violent means or following assault or violence or threat thereof to the insured or to his employees or to the members of his family.  Therefore, the element of force or violence is a condition precedent for burglary and housebreaking.  In the absence of violence or force, because of the above terms and conditions of the policy, the insuree cannot claim indemnification of the claim for theft.”

As per surveyor loss was to the tune of Rs.2,96,608/- and not as alleged by complainant. So this Commission is also not having pecuniary jurisdiction as opined by Hon’ble National Commission in  case titled “Shahbad Cooperative Sugar Mills Ltd. Versus national Insurance Company Limited”

3.      Arguments heard. File perused.

4.      Learned counsel  for the complainant vehemently argued that complainant specifically stated that unknown persons entered the shop after breaking locks of shutter. When it was alleged at the time of lodging FIR that locks were broken, so it is covered by the definition of burglary.

5.      This argument is of no avail.  As per definition about burglary referred above this case is not covered by policy Ex.P-1. The Company is to indemnify insured against:-

“a) Loss or damage to the property described in the Schedule by Burglary or Housebreaking (theft following upon an actual forcible and violent entry of or exit from the premises by the person or persons committing such theft) or hold-up:

2. Any damage to the premises described in the schedule hereto following upon or occasioned by an actual forcible and violent entry of or exit from the premises or any attempt threat by the person or persons committing or attempting to commit such theft.”

There must be some evidence on the file to show that burglary had taken place as per opinion of Hon’ble Supreme Court expressed in United India Insurance Co.Ltd. Harchand Rai Chandan Lal IV (2004) VPJ 15 (SC). Relevant para Nos.6 to 9 of the above said judgement are reproduced below:-

“6.     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. "

7.       In this connection, a reference may be made to an earlier decision (Queen's Bench Division) in re George and the Goldsmiths and General Burglary Insurance Association, Limited reported in [1899] 1 Q.B.595. In this case, a policy was taken out for loss or damage by burglary and housebreaking. A theft took place at premises No.78, Strand, in a shop where the front door was shut but not locked or bolted and access to the shop could be obtained by turning the handle of the door. In the early morning before business hours, during the temporary absence of a servant of the assured, some person opened the front door, entered the shop, and breaking open a locked-up compartment or show-case and certain properties were stolen. Reversing the judgment of the Divisional Court, the Court of Appeal held that the loss which has occurred as above mentioned was not covered by the policy. Two propositions were advanced before the Court The first that an entry effected by the exercise of any force, however slight, was sufficient to constitute an entry within the meaning of policy. The contention was advanced that pushing a door open, if it were ajar, or turning the handle of a door, if the door were shut and could be opened in that way, was sufficient force to satisfy the language of the policy. The second proposition was that if that was so, and therefore it could not be said that the original entry in the case was effected by force within the meaning of the policy, yet nevertheless, the language of the policy was satisfied by the fact that the thief, after having entered the shop without force, proceeded to prise off an iron plate to which a locked padlock was attached securing a show-case in which valuables were placed. Their Lordships considered both the propositions and after reproducing the definition, observed that as per the plain reading of the expression used in terms of the policy violence is a condition precedent. The Court of Appeal reversed the decision of Queen's Bench. This view was reitereated subsequently in the case of Dino Services Ltd. v. Prudential Assurance Co Ltd.. reported in [1989] 1 All ER 422. In this case also the proposition of law as enunciated in the case of George and Goldsmith and General Burglary Insurance Association Ltd. was reaffirmed. It was held as follows:

" In the context of a policy of insurance against theft from premises by ' forcible and violent' means of entry, the word 'violent' was to be construed according to its ordinary meaning and meant entry by the use of any force which was accentuated or accompanied by a physical act which could properly be described as violent in nature and character. In the context of such a policy the word 'violent' accordingly referred to the physical character of the means of entry and not merely to its unlawful character. It followed that the thieves, by gaining entry to the premises simply by using the proper keys to unlock the doors of the premises, had not entered the premises by 'violent' means. Accordingly, the plaintiff's loss was not covered by the policy. The appeal would therefore be allowed.

8.      Similar view has been expressed by American Courts also in American Jurisprudence 2nd (Vol. 44) 1401 which is as follows:

"1401  Provisions as to visible marks or evidence, or use of force or violence It is not uncommon for insurance companies to include in their theft or burglary policies provisions restricting their liability to cases where there were some "visible marks" or "visible evidence" of the use of force or violence. It is generally competent for an insurer to insert such a clause in the contract of insurance, and since such a provision is unambiguous it does not justify the applicable of the general principle that the insurance policy will be construed most favourable to the insured. However, the courts will not read such a requirement into a policy and do not require compliance with such clauses unless the unmistakable language of the policy so requires.

Such a policy requirement has been considered either  as a limitation on the liability of the insurer or as a rule characterizing the evidence upon which liability must be predicated, but in either event, the validity of the requirement has been recognized and rarely questioned, although in at least one instance such a requirement has been held in contravention of public policy under the particular terms of the policy involved and the particular circumstances.

Just as policies insuring against burglary of an insured's premises commonly require visible marks upon the insured's premises or upon the exterior of the insured's premises, so also do safe- burglary policies commonly require visible marks either upon the insured's safe, or upon the exterior of the insured's safe, or upon the exterior of the doors of the insured's safe, and in some instances the requirement of visible marks or visible evidence has been imposed in policies pertaining to theft of property from an insured's automobile.

The determination of what constitutes visible marks or visible evidence within the meaning of such a provision, and of where such marks or evidence must be located in order to satisfy the policy requirement, is to a great extent depend upon the particular facts involved in relation to the specific requirements imposed by the policy. Where, for example, a burglary or theft policy requires that there must be visible marks of force or violence " at the place of entry" into the premises, this requirement has been held complied with if the visible marks are only on one of the outer doors to the insured's premises, which the burglars or thieves must have used to accomplish their deed. However, under such a requirement, if the only visible marks are those on inside doors which are not at the entrance to the premises, recovery will be denied. Similarly, a policy providing against loss by burglary by felonious entry into ;a safe by actual force evidenced by visible marks made upon the exterior of all the doors does not cover loss sustained by felonious entry into the safe by a manipulation of the lock on the outer door with no visible marks made thereon, although the inner door of the safe did contain such marks, although there is contrary authority. The opening of a safe by manipulation of the combination within the period covered by a policy of burglary insurance which was made possible by force applied to the safe before such period, leaving visible marks upon the safe, was not within the terms of the policy insuring against loss through felonious entry into the safe by actual force and violence, leaving visible marks upon the safe and occurring within the policy period, with an exemption from liability from loss effected by opening the safe by manipulation of the lock."

9.      It is possible that an insurer may sustain loss in technical terms of the criminal law, but no relief can be given to him unless his case is covered by the terms of the policy. It is not open to interpret the expression appearing in policy in terms of common law; but it has to give meaning to the expression as defined in the policy. The act that causes the loss must fall within the definition in the policy and it cannot take the cover and contents of the definition as laid down in the criminal law. Therefore, when the definition of the word 'burglary' has been defined in the policy then the cause should fall within that definition. Once a party has agreed to a particular definition, he is bound by it and the definition of criminal law will be of no avail. In this connection, the decision of the National Consumer Disputes Redressal Commission in the case of National Insurance Company Ltd. v. Public Type College which has taken the colour and content of the definition given in the criminal law does not lay down the correct proposition of law. It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on definition given in other enactment. Thus, the decision of the National Consumer Disputes Redressal Commission in the case of National Insurance Company Ltd. v. Public Type College is not a good law and all the Tribunals i.e. National Consumer Disputes Redressal Commission, State Commission & District Forum having applied the ratio of that case; the impugned order cannot be sustained. “

If we evaluate the evidence available on the file keeping in view the law laid down in the aforesaid judgement it will be clear that this case is not covered by the insurance policy and complainant cannot ask for compensation.  When Manish Setia, sole proprietor of Neha Garments, entered witness box it was stated by him that theft took place in his shop during intervening night of 20-21.10.2012. He no-where stated that locks were broken.  If locks were broken then why he kept mum is no-where explained.  All these facts create suspicion about this incident. It is well settled proposition of law that mere averments cannot take place of evidence.  It was the bounden duty of the complainant to prove that the locks were actually broken.  Burden of proof rests on a party who asserts affirmative issue and not on party who denies it as opined by Hon’ble National Commission in M/s Wipro Ltd. Vs. Surendra Singh & others 2015 (4) CPR 144 (NC). 

6.      In case the insurance policy is pertaining to burglary there must be element of force and violation of condition precedent for burglary or house breaking. If this fact is missing then insured cannot ask to accept his claim.  It means that if there is no evidence qua use of force then claim under head of burglary cannot be allowed.  Neither it is pleaded in the complaint nor it was stated by complainant anywhere that there was use of force.

7.      It is also opined by Hon’ble National Commission in Md. Hafizuddin Vs. United India Insurance Company Ltd. 2005 (4) CPHJ 147 that when complainant has failed to establish forcible entry in premises, it cannot be considered as burglary.  Hence the complaint is hereby dismissed.

 

February, 07th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

S.K.