1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 11.04.2017 of the State Consumer Disputes Redressal Commission, Gujarat, Ahmedabad (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 753/2014 in which order dated 30.07.2013, District Consumer Disputes Redressal Forum, Ahmedabad City (Additional), Ahmedabad (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 481/2011 was challenged, inter alia praying to set aside the order passed by the State Commission.

2.       While the Revision Petitioner (hereinafter also referred to as OP) was Appellant and the Respondent (hereinafter also referred to as Complainant) was Respondent in the said FA/753/2014 before the State Commission, the Revision Petitioner was OP and Respondent was Complainant before the District Forum in the CC no. 481/2011.

3.       Notice was issued to the Respondent. Petitioner filed Written Arguments/Synopsis on 01.12.2023. Respondent has already proceeded ex-parte vide order dated 10.12.2019.

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:-

The Complainant/Respondent purchased a Shop Keeper Policy from the OP/Insurance Company, covering the period from 16.12.2009, to 15.12.2010. On 05.04.2010, a theft occurred in the complainant's shop, resulting in the loss of electrical instruments and computers valued at Rs. 7,13,240/-. The complainant promptly filed a complaint with the Chandkheda Police Station and notified the OP of the incident. The insurance company appointed Mr. Jayesh Shah as a surveyor to assess the loss. Mr. Shah visited the location of the theft, collected necessary documents, and prepared a Theft Report. However, the insurance company, citing policy clauses 2.4.2 and 2.4.4, denied the claim for compensation. Clause 2.4.2 states that compensation is not payable if the theft is committed by an employee of the organization, an authorized person of the organization, or the owner of the organization themselves. Additionally, according to Clause 2.4.2, if a duplicate key is used in the theft without violence or force, the insurance company is not liable to pay compensation. Consequently, the insurance company repudiated the claim through a letter dated 12.10.2010. Dissatisfied with this decision, the complainant filed a complaint.

5.       Vide Order dated 30.07.2013, in the CC no. 481/2011 the District Forum has allowed the complaint and directed OP to pay the amount of Rs. 7,13,240/- with 8% interest from the date of claim repudiated; directed OP to pay Rs. 5,000/- towards compensation and Rs. 2,000/- towards litigation cost to the complainant.

6.       Aggrieved by the said Order dated 30.07.2013 of District Forum, Petitioner appealed in State Commission and the State Commission vide order dated 11.04.2017 in FA No.753/2014 has only changed the amount to Rs. 6,40,070/-.

7.       Petitioner has challenged the said Order dated 11.04.2017 of the State Commission mainly on following grounds:

1. The impugned order is erroneous and tainted by serious legal and factual flaws. The State Commission erred in not applying the precedent set by the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. vs Harchandrai Chandulal. The cutting of wires of the security alarm and telephone wire, along with minor acts of force, should not be considered acts of force or violence as per the insurance policy. The Hon'ble Supreme Court in the Harchandrai Chandulal case explicitly stated that marks of force or violence inside the premises should not be deemed acts of force or violence for insurance purposes. Similarly, in the present case, no force was used by the thieves to enter the insured premises. The impugned order failed to properly apply established legal principles from precedent cases, leading to an erroneous decision.

2. The State Commission made a grave error in considering the snapping of the security alarm wire and telephone wire as acts of force or violence. Such actions do not constitute force or violence under the terms of the insurance policy. Furthermore, there was no application of force by the thieves, not even minor force, to meet the criteria for burglary as defined by the policy. Therefore, no burglary occurred according to the terms of the policy, and the petitioner/OP was correct in denying the complainant’s/respondent's claim. That for an act to qualify as force or violence, it must involve the application of force with grave intensity and the intent to cause actual harm or damage to individuals or property. Since no physical harm, injury, or damage occurred in this case, there was no force or violence applied, and consequently, no burglary took place.

3. Additionally, the State Commission erred in concluding that the complainant had no malicious intent to defraud the OP, solely based on the complainant's past history of fulfilling obligations since 2004. There is a possibility of collusion and connivance between the complainant and its employees, who were involved in the theft, with the intention of making wrongful gains from the OP. Thus, the commission's conclusion regarding the complainant's lack of malicious intent is flawed.

8.       Heard counsel of Petitioner. Respondent was proceeded ex-parte vide order dated 10.12.2019. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, Oral Arguments advanced during the hearing, and records of the for a below are summed up below.

1. The counsel for Petitioner/OP asserted that the respondent/complainant purchased a "Shopkeeper's Package Policy" from the OP, with Policy No. OG-10-2202-4092-00000-722, after thoroughly reviewing the terms and conditions of the policy for the Insured Premises. According to these terms, if theft occurs in the insured's shop committed by an employee of the company or by a person legally residing on the premises of the insured, the insured is not entitled to claim compensation as per Clause No. 2.4.2. Similarly, as per clause 2.4.4 of the insurance policy, if goods are stolen from the strong room or safe custody of the insured after opening it with the original or duplicate keys, which are in possession of the insured, then the insured is not eligible for compensation unless the keys were obtained by the thief from the insured through force or violence.

2. In the criminal complaint, it was alleged that the locks of the main gate (shutter) were found to be opened with the help of a duplicate or original key, without any visible signs of damage or forced entry. The police registered an FIR under Section 381 and 144 of the IPC based on the complainant's suspicion of the involvement of its own employees in the alleged burglary. Given the absence of actual forcible entry, the claim was repudiated by the insurer/OP. The surveyor's personal visit to the site of the incident corroborated these findings in his final survey report dated 15.9.2010. Therefore, it is evident that the conditions specified in the insurance policy clauses were not met, leading to the rejection of the claim.

3. The present insurance policy defines Burglary as the unforeseen and unauthorized entry to or exit from the Insured Premises by aggressive and detectable means with the intent to steal Contents therefrom. The use of the words "aggressive" and "detectable" clearly establishes the requirement of force or violence in the commission of the alleged burglary. The observations in the Police panchnama and the survey report indicating that the shutter, the main entry point of the insured premises, did not show any signs of force or violence, the events that occurred at the insured premises on the intervening night of 04.04.2010 cannot be classified as burglary and thus fall outside the scope of the insurance policy.

4. The counsel further argued that the State Commission erred in considering the snapping of the security alarm wire and telephone wire as evidence of force or violence. Such actions do not constitute force or violence, and there was not even minor force applied by the thieves to satisfy all the constituting elements of burglary as per the policy. Therefore, no burglary can be said to have occurred as per the terms of the policy, and the OP was correct in repudiating the claim of the complainant. Furthermore, the Hon'ble Supreme Court, as discussed in the case of Harchandrai Chandulal, has specifically mentioned that marks of force or violence inside the premises shall not be considered acts of force or violence as per the policy. Therefore, the acts of snapping the security alarm wire and telephone wire do not meet the requirements of burglary as per the terms of the policy.

5. In order for an act to be considered force or violence, there must be the application of force with grave intensity, with the intent of causing actual harm or damage to the body or property. In the instant case, no physical harm, injury, or damage has been caused to any individual or property, and therefore, there was no force or violence applied, and hence, there was no burglary. The State Commission gravely erred in holding that the complainant had no malicious intent of taking the money from the OP solely on the ground that the complainant has been performing its part of the obligation since 2004. On the contrary, the possibility cannot be ruled out that the complainant, in collusion and connivance with its employees, committed the purported theft with the intention of making wrongful gains from the OP, as the employees of the complainant are involved in the theft.

6. In view of the above-noted submissions, it is now well-established that the District Forum and the State Commission failed to interpret the term 'burglary' in the right context of the terms of the insurance policy and unjustifiably relied upon the generic meaning of the term in its criminal law context, hence committing a grave error by ignoring a well-established principle of law established since the judgment of Harchandrai Chandulal. Moreover, undue reliance by the State Commission on the fact that the complainant had been paying the premium under the policies of insurance since 2004, and the total amount paid as a premium so far was greater than the amount claimed, was unwarranted and could have been avoided as inconsequential.

7. The counsel for Petitioner/OP relied on following judgements:-

1. In United India Insurance Co. Ltd. v. Harchand Rai Chandan Lal, (2004) 8 SCC 644, the Hon’ble Supreme Court held that:-

“6. ……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 insured cannot claim compensation against theft from the insurance company…… burglary or theft has to be preceded with force or violence in order to be indemnified by the insurance company……”

9. …..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….

14…. the terms of the contract have to be strictly read and natural meaning be given to it…..”

2. In Oriental Insurance Co. Ltd. v. Sony Cheriyan, (1999) 6 SCC 451, the Hon’ble Supreme Court observed that:-

“17. The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein.”

3. In Ravneet Singh Bagga v. KLM Royal Dutch Airlines, (2000) 1 SCC 66, the Hon’ble Supreme Court observed that:-

“6. ……In case of bona fide disputes no wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed (sic). If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service…..”

9.       We have carefully gone through the orders of the State Commission, District Forum and other relevant records. In this case, there are concurrent findings of both the fora below. State Commission, in its order has observed as follows:-

“5. We read the learned forum's verdict and the papers submitted with the Appeal Memo. We had also read the Complaint lodged by the Manager of the Company. The doubt has been raised in said complaint on the company's employee, but there no clear allegation made on them for said theft. It Is Important to note that the names of Shalleshbhai Gavai, Prakashbhai Biru, Security Guard Vikrambhai and Ankit Jain, who are the employees of the company, their names are mentioned as a accused In the FIR registered for said theft. But we had read the Panchnama done by the Police In regards to said complaint and wherein the C.C.TV Camera & Telephone Wires are cut which Is clearly mentioned, further the goods are found scattered In the shop. Further the Godrej Treasury Box that placed In the Wooden Box, the door of Box Is also broken. We had read the Police Statement of Akash Navinbhai, Akshay Kishanbhai, & other witnesses and are considered. In said statements they have clearly mentioned that. In C.C.TV Footage a boy aged 16 Years with Handkerchief tied on his face is entering the shop and performing the theft of Laptop, IPod etc. further said person is seen talking on his Mobile, but witnesses are not able to identify said person as a company's employee, hence in such condition the theft is conducted by the Company's Employee is not at all confirmed. Further, we had read the Final Report that submitted by the Police Official in the Court, wherein also it is clearly mentioned that said theft has been conducted by some unknown person and he was company's employee is not at all confirmed. Further as discussed and as per the statements of the witnesses, the person seen in the C. C. TV Camera footage doing theft is \, not identified as a company's employee. Hence, learned forum has done true and proper identification of the evidences that available and conclude that thief has not been seized and it has not been identified that the Company's Employee has done the theft, we strongly agree with the decision of the learned forum. As per the argument of the learned advocate, he informs about the act of force without violence and usage of Duplicate Key is seen at first sight. If we discuss in regards to the evidence for said arguments, the order by the learned forum for United India Insurance Co. Ltd. V/s. Harchandrai Chandulal 4 (2004) CPJ 15 (S.C.), the principal of the judgment that if the Force of Act or the Violence is involved than the Insurance Company is not liable to pay the compensation. Said Judgment does not apply in said case. For which, learned form had mentioned that the Security Alarm was fitted on the corner of the Shutter of the Shop, whose wires were cut along with the Telephone Wire Passing nearby and said things are mentioned by the Police in Spot Panchnama and minor force of act was involved in said theft, hence it can be correctly evaluated that Stealing / Theft was conducted and in such condition the argument of the learned advocate Mr. Nanavati could not be considered. It is also important to note that complainant Company is possessing said Policy since Year 2004 and till the date of happening of said incident, said company has paid the Premium of Rs. 15 Lac and has never lodged any such claim in the past, hence it is also confirmed that the complainant Company has no malicious intension of taking the money from the Insurance Company and has lodge false claim such intensions are also not found. Hence in our opinion, the Order of the learned Forum seems to be Genuine, Learned Forum should have ordered for the Interest from the Date of Complaint Lodged. Further from the letter issued by the Complainant to the Insurance Company, the loss of Rs. 6,40,070/-, where as the complaint has lodged the claim for Rs. 7,13,240/-, hence in our opinion the complainant is liable of receiving the amount of Rs. 6,40,070/-. Hence, learned Forum had made mistake in considering the claim amount of Rs. 7,13,240/- and till that said Appeal is considered. Hence the changes in the order of learned forum is made and the order for the payment of Rs. 6,40,070/- is issued which seems correct and reasonable. Hence below mentioned final Order is given.”

10.   As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. "

11.    The Hon’ble Supreme Court in Rajiv Shukla vs Gold Rush Sales And Services Ltd. Civil Appeal No. 5928 of 2022, decided on 8 September, 2022, held that:-

“13. As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction.

14. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21(b) of the Consumer Protection Act.”

12.    State Commission has given a well-reasoned order. We are in agreement with the findings of State Commission. There is no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld. Accordingly, the RP is dismissed.

13.     The pending IAs in the case, if any, also stand disposed off.